DocketNumber: DOCKET NO. A-0152-18T6
Citation Numbers: 196 A.3d 106, 456 N.J. Super. 520
Judges: Koblitz, Mayer, Ostrer
Filed Date: 11/8/2018
Status: Precedential
Modified Date: 6/24/2022
*528Defendant Quiasia N. Carroll appeals from the trial court's order detaining her on charges of fourth-degree cyber-harassment, N.J.S.A. 2C:33-4.1(a)(2), and second-degree retaliation against a witness, N.J.S.A. 2C:28-5(b), as set forth in complaint-warrant W-2018-005075-0408. Because we disagree with the trial court's finding of probable cause as to the former charge, and discern significant legal impediments to successful prosecution of the latter one, we reverse, and remand for reconsideration.
I.
The charges relate to four posts that defendant allegedly made on a Facebook page assigned to a person with the user *111ID, Klo Kló. For purposes of our discussion, we will assume that defendant is Klo Kló. The posts coincided with and followed the June 21, 2018, conviction of Tyhan Brown, who was charged with murder of a child and the attempted murder of an adult.
In the first post, made on the day of Brown's conviction and accompanied by the witness's photo, the comments were, at least in part, addressed to the witness. In coarse language and slang, defendant called the witness a "rat," and criticized him for lying in return for remuneration, and for being untrustworthy:
lying ass RAT ass nigga! fuck you! I swear I use to tell butt & jo all the time don't trust this nigga! how tf (the fuck) you go against ya mans for some chump change!! I'll never respect you!
The next day, defendant posted three more comments, each evidently addressed to the public generally, although we may presume the witness viewed them as well. In the first, along with *529the witness's photo, the poster identified the witness by name and nickname. The comment stated:
PUBLIC SERVICE ANNOUNCEMENT RAT ALERT THIS ONE OF THE SCARIEST THINGS EVER THIS NIGGA HOLD GUNS & RUN TO THE COPS NEVER KNOW WHAT HE GOT UP HIS SLEEVE NEXT STAY AWAY FROM THIS RATATOUILLE MICKEY MOUSE STUART LITTLE ASS NIGGA TELL A FRIEND TO TELL A FRIEND [name deleted] AKA SNITCHOS I MEAN [nickname deleted] IS A FUCKING RATTTTTT CHECK HIS SHIRT & HIS PANTS I THINK HE WIRED.
Also that day, defendant posted a photo of two uniformed Camden County Metro Police Officers talking, as they stood in front of an unidentified person in the street. She added the comment: "[nickname deleted] really friends w all the cops" - referring to the witness by what the State alleges is another one of his nicknames.
In the final posting, defendant commented:
[Nickname deleted] just living his life like it's golden posting pictures & shit w glasses on like he cool BOY YOU A FUCKING RAT! ! ! hope somebody blow them glasses tf (the fuck) off his face
The State alleges that Facebook made it aware of the posts on August 13, 2018. The witness allegedly asked defendant to remove the posts and she refused. The State alleges that the witness feared for his safety and left his home. Defendant was arrested on August 29, 2018. Incident to her arrest, officers allegedly seized drugs on her person, which led to multiple third-degree possession and possession-with-intent-to-distribute charges, and second-degree within-500-feet-of-public-property charges, as set forth in complaint-warrant W-2018-005372-0408. See N.J.S.A. 2C:35-10(a)(1) ; N.J.S.A. 2C:35-5(b)(3) ; N.J.S.A. 2C:35-7.1(a).
II.
The State sought defendant's detention on the retaliation and cyber-harassment charges. The Public Safety Assessment (PSA) stated that, at the time of her arrest, *112defendant had two pending charges for the disorderly persons offense of hindering, N.J.S.A. 2C:29-3(b)(4), dating from February and September 2016. Her sole prior conviction, in January 2016, was for a March 2015 disorderly *530persons shoplifting offense. Defendant failed to appear in court four times, in 2015 and 2016, in connection with the hindering and shoplifting charges. According to a certified driver abstract, defendant also failed to appear in connection with motor vehicle matters three times in 2016 and once in 2018; and her driver's license was suspended through May 2021.
Pretrial Services recommended no release based on an elevated risk score. Defendant scored six on the failure-to-appear scale, and four on the new-criminal-activity scale. The PSA did not include a flag for new violent criminal activity.
Defense counsel contended that defendant's Facebook posts were protected speech under the First Amendment. Counsel questioned whether defendant committed an "unlawful act," which is an element of the retaliation offense. Counsel also argued that the Facebook posts did not include "lewd, indecent, or obscene" statements, an essential element of the cyber-harassment offense charged.
The State responded that the "unlawful act" in the retaliation offense was "making communications which include threats of force via social media." The prosecutor did not specifically address the defense argument regarding the "lewd, indecent, or obscene" element of cyber-harassment. The prosecutor also asserted that the communications were made during and after the trial, although the affidavit of probable cause asserted that the communications were made on the day of conviction and the next day.
Although the trial court released defendant on Level Three monitoring on the drug-related complaint, the court detained her, upon the State's motion, on the retaliation and cyber-harassment complaint. The court found probable cause that defendant committed *531the charged offenses. In support of its probable cause finding, the court cited the complaint-warrant and affidavit of probable cause.
The court found by clear and convincing evidence that no amount of monetary bail, non-monetary conditions, or combination of the two would reasonably assure: defendant's appearance in court when required; the protection of the safety of any other person or the community; and that the defendant will not obstruct or attempt to obstruct the criminal justice process.
As for the reasons for detention, the court cited: (1) the offenses charged; (2) the weight of evidence against defendant, "to wit, the Facebook postings"; (3) defendant's history and characteristics, including her record concerning appearance at court proceedings; (4) "the nature and seriousness of the danger to any other person or the community should this defendant be released," adding a reference to the drug *113charges; (5) "the nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the defendant's release," noting "potential for witness intimidation Facebook threats - retaliation and cyber harassment during homicide trial"; and (6) Pretrial Services' recommendation of no release, noting the risk scores for failure to appear and new criminal activity.
The court added the following additional reasons:
This murder case had gang mentions and the key witness was actually relocated to another state based upon fears of retaliation - the statements were not read into the record based upon their nature but were specifically included in the court's determination as a clear threat to the witness or others involved in the homicide case.
On appeal, defendant presents the following points:
*532I. THE FACTS AS ALLEGED FAILED TO ESTABLISH PROBABLE CAUSE THAT THE DEFENDANT HARMED ANYONE BY AN UNLAWFUL ACT AND NEITHER WAS FORCE EVER THREATENED BY THE DEFENDANT AS REQUIRED BY THE RETALIATION STATUTE. NEITHER DO THE FACTS ALLEGE THAT POSTS OF A LEWD, INDECENT, OR OBSCENE MATERIAL WERE POSTED AS 2C:33-4.1a(2) REQUIRE.
II. EVEN IF THE COURT FOUND PROBABLE CAUSE, BECAUSE MS. CARROLL WAS NOT CHARGED WITH MURDER NOR AN OFFENSE WITH A PO[SS]IBLE LI[ ]FE SENTENCE, HAD NO INDICTABLE CONVICTIONS, NO VIOLENT CONVICTIONS, NO FINAL DV REST[R]AINING ORDERS, HAD NO PENDING VIOLENT CHARGES, NO JAIL SENTENCES, NO JUVENILE RECORD, AND WAS NOT ON PROBATION OR PAROLE THERE WERE CONDITIONS WHICH COULD HAVE REASONABLY ASSURED THE COURT OF THE GOALS OF THE CJRA AND THE COURT SHOULD HAVE FOUND THAT THE STATE FAILED TO REBUT THE PRESUMPTION OF RELEASE.
Defendant renews her arguments that probable cause was not established, and her statements were protected by the First Amendment.
III.
We review the trial court's decision to detain a defendant for an abuse of discretion. State v. S.N.,
Applying that standard, we conclude that the trial court misconceived the strength of defendant's legal challenge to *114the *533complaint. Defendant's arguments pertain to whether the State has established probable cause that defendant committed the predicate offenses, which is "a prerequisite to extended restraint of liberty." State v. Ingram,
"To demonstrate probable cause, the State must show the police had a 'well grounded suspicion that a crime ha[d] been committed,' and that the defendant committed the offense." Ingram,
Defendant's argument also addresses the "weight of the evidence against the eligible defendant," which is a factor in the pretrial detention decision. N.J.S.A. 2A:162-20(b). The "weight of the evidence" factor is another way of evaluating "the strength of the government's case." See State v. Stewart,
Also, if the weight of the evidence is weak, then a court may conclude it is less likely a defendant actually committed the offense. That would allow a court to conclude it less likely that the defendant would, if released, pose a danger to the community - assuming the offense involved harm to the community - or pose a threat to the integrity of the criminal justice process - assuming the offense implicated interference with that process. See UnitedStates v. Taylor,
Whether the State established probable cause necessarily implicates whether defendant's alleged statements alone constitute a crime, since the State has presented no context for the statements, except that they pertained to a State witness at a homicide trial involving an alleged gang member. Defendant raises statutory and constitutional arguments that the State has not demonstrated probable cause.
Turning first to the statutory contentions, defendant contends the alleged *115facts do not match the elements of the charged offenses. The State has charged defendant with cyber-harassment under N.J.S.A. 2C:33-4.1(a)(2). The offense includes, as an essential element, the posting of "lewd, indecent, or obscene material."
if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person ... knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person
[Ibid. (emphasis added).]
*535The Facebook posts were indisputably coarse and insulting. But, it is difficult to discern how they constitute "lewd, indecent, or obscene material." Notably, the complaint cited N.J.S.A. 2C:33-4.1(a)(2), but omits any reference to the "lewd, indecent, or obscene material" element of the offense. In its brief opposing defendant's appeal, the State asserts only that defendant's posts were "indecent," apparently conceding that they were neither lewd nor obscene.
The Criminal Code does not define "indecent."
In sum, since "indecent" is associated with nudity or sexuality - neither of which appear in defendant's posts - we find not even a well-grounded suspicion that defendant committed cyber-harassment under N.J.S.A. 2C:33-4.1(a)(2).
Turning to the retaliation charge, the State alleges that defendant has "harm[ed] another by an unlawful act with purpose *536to retaliate for or on account of the service of another as a witness or informant." N.J.S.A. 2C:28-5(b). The complaint alleges that the unlawful act was "making communications including threats of force via social media." The threat of force raises the crime to the second-degree.
However, the State does not identify a Criminal Code provision that would render the alleged "threats of force" an *116"unlawful act." The State does not contend that the predicate "unlawful act" is the alleged cyber-harassment, which, in any event, we have concluded lacks probable cause. Since we must narrowly construe a provision that criminalizes expressive activity, see State v. Burkert,
Since the elements of retaliation include both "an unlawful act" and a "purpose to retaliate," N.J.S.A. 2C:28-5(b), in order to establish that the alleged "threat of force" constitutes an unlawful act, the State will need to prove that defendant acted with more than simply a "purpose to retaliate." For example, to render the posts unlawful as a terroristic threat, the State would have to prove defendant intended to terrorize or recklessly disregarded *537the risk of causing terror, N.J.S.A. 2C:12-3(a).
Moreover, to establish defendant engaged in an unlawful act, the State must show her posts are not protected by the First Amendment. "Speech ... cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt." Burkert,
"[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few 'historic and traditional categories [of expression] long familiar to the bar.' " United States v. Alvarez,
*538Brandenburg v. Ohio,
*117Burkert,
A "true threat" includes "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black,
"Alleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life Activists,
Contextual factors include the language itself, and whether it is stated conditionally.
*539the reaction of the recipient of the threat and of other listeners; whether the threat was conditional; whether the threat was communicated directly to its victim; whether the maker of the threat had made similar statements to the victim in the past; and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.
[ United States v. Dinwiddie,76 F.3d 913 , 925 (8th Cir. 1996) (citations omitted) (affirming conviction under Freedom of Access to Clinic Entrances Act of 1994 based on true threat).]
We would add that the forum in which the speech is delivered may also provide context. In particular, use of the internet or social media may, depending on the circumstances, amplify the threatening nature of speech or attenuate it.
*118Courts disagree about whether an element of a true threat is the speaker's subjective intent to express a serious plan to harm, or an objective intent based on how a reasonable person would understand the statement. In United States v. Bagdasarian,
On the other hand, some courts have focused on the listener's objectively reasonable reaction, and have required only a speaker's subjective intent to communicate, as opposed to threaten. The Eleventh Circuit held, "[T]he inquiry is whether ... the defendant intentionally made the statements under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm." United States v. Alaboud,
We are persuaded that both tests should apply. Consistent with Black, a defendant must intend to do harm by conveying a threat that would be believed; and the threat must be one that a reasonable listener would understand as real. The court in United States v. Martinez,
A reference to the actions of others may constitute a true threat if it is sufficiently detailed and precise, or if the speaker has rallied followers to commit violence by using similar language in the past, so as to imply the person posting will himself either act on the threat or direct others in his control to do so. Compare Claiborne Hardware Co.,
Besides true threats, the First Amendment does not protect speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg,
For example, a person may be convicted for urging protestors at an angry demonstration to "get the cop, get the cop," inciting them to attack a police officer who was attempting to arrest another protestor. State v. Hopson,
Focusing on the website's plain language, the court denied the government's request to compel the website's removal. The court distinguished "wanted" posters in other cases that were found to be unprotected, because Carmichael's website did not reference killing, execution or blood, and included no epithets.
Applying these principles, we doubt that the present record could support a conviction for retaliation, because the posts may be protected by the First Amendment as mere spiteful venting - not true threats or incitement. Nonetheless, at this stage the State need not prove defendant's guilt. As a threshold showing to detain defendant, the State need only show probable cause, that is, a "substantial chance of criminality,"
*544Pinkston,
There is a "substantial chance" or a "well-grounded suspicion" that defendant intended the witness to believe that someone might respond to defendant's posts by blowing off his glasses or otherwise assaulting him. There is a history of retaliation or intimidation of witnesses against participants in gangs and organized crime. Unlike in Carmichael, defendant heaped epithets upon the witness and she also referred to an act of violence against him. She circulated her statements to an apparently broad audience. All it would take is one person to be moved to action against the witness.
These factors are sufficient to raise the charge of retaliation to the low threshold of probable cause. While the State failed to identify the statute rendering defendant's alleged "threat of force" "an unlawful act," the record supports a finding of probable cause that defendant intended either to terrorize, N.J.S.A. 2C:12-3(a), or to harass, N.J.S.A. 2C:33-4(b). The same evidence also shows there is a "substantial chance" the posts are true threats and therefore unprotected.
However, the weight of the evidence of a true threat or incitement is *121weak. Defendant did not explicitly threaten to harm or exert force against the witness. Rather, she expressed disdain for the witness because he was a "rat" who, she contended, lied for "chump change." Her expressed goal was to socially ostracize the witness by warning people to steer clear of him. Defendant may not have hoped someone would literally "blow" the witness's glasses off his face, any more than someone hopes another person will literally rot in hell. Moreover, expressing a sincere desire by itself is not enough to constitute a true threat.
The State will ultimately need to present more than defendant's statements to persuade a jury beyond a reasonable doubt that *545defendant's statements were not mere hyperbole. The State must show that a reasonable person would believe that cohorts or allies of defendant would understand her expression of hope as a request or command and would act on it; and that defendant intended that reaction.
Context matters. The State has provided virtually no context for defendant's Facebook statements. Instead, it relies entirely on the statements themselves and the allegation that Brown, against whom the witness testified, was involved in gangs. The record lacks any evidence of a history of violence by defendant; the relationship if any between her and the witness, Brown, or gangs; or the nature of the readership of defendant's Facebook page. There is also no evidence concerning whether or not the witness's identity was publicly known before the posts, or whether other testifying witnesses have been victimized.
While the State alleges defendant's statements are a "call to arms," advocacy of violence is protected speech unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg,
In sum, the State has not presented weighty evidence that defendant's statements were true threats under Watts, or incitements to violence under Brandenburg. On the other hand, the State has established probable cause to charge defendant under N.J.S.A. 2C:38-5(b).
Reversed and remanded for reconsideration. The order of detention remains in force and defendant shall not be released until so ordered by the trial court. We do not retain jurisdiction.
The record does not reflect the specifics of the jury's verdict.
We reproduce the posts exactly as presented in the affidavit of probable cause, except, in the exercise of caution, we have deleted the witness's name and nickname.
The PSA erroneously included the retaliation and cyber-harassment charges as "pending charge[s] at the time of offense." See Public Safety Assessment, New Jersey Risk Factor Definitions 3 (Mar. 2018). However, we understand that error did not affect the scores, inasmuch as defendant had the other pending hindering charges.
The court also cited the PSA and the defendant's driver abstract, although their connection to a probable cause finding is unclear.
By contrast, the Code separately defines the offense of lewdness, N.J.S.A. 2C:14-4, and obscene material, N.J.S.A. 2C:34-3(a)(1).
The State did not charge defendant with cyber-harassment by direct threats, either by threatening to injure or harm a person or property, or by threatening to commit some other crime against a person or property. See N.J.S.A. 2C:33-4.1(a)(1) (including, as an element of cyber-harassment, "threaten[ing] to inflict injury or physical harm to any person or the property of any person"); N.J.S.A. 2C:33-4.1(a)(3) (including, as an element of cyber-harassment, "threaten[ing] to commit any crime against the person or the person's property"); see also State v. Burkert,
As discussed below, the Constitution may require a higher mens rea than recklessness.
Some argue that use of the internet would tend to place speech outside the scope of a true threat. See Planned Parenthood,
The author finds support in the trial court's opinion in Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life Activists,