STATE OF NEW JERSEY v. SHAHOUNA DUTTON (18-10-0857, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1293-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAHOUNA DUTTON,
Defendant-Appellant.
__________________________
Submitted April 28, 2022 – Decided June 15, 2022
Before Judges Mitterhoff and Alvarez.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-10-0857.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Colleen Kristan Signorelli, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Shahouna Dutton appeals from an October 15, 2019 judgment
of conviction sentencing her to four years for witness tampering, N.J.S.A.
2C:28-5(a)(3). We affirm, substantially for the reasons articulated by Judge
John A. Young in his thoughtful and well-reasoned opinion.
We discern the following facts from the record. On March 29, 2017,
Terrell Smith was shot and killed in Jersey City. During the ensuing
investigation, Hudson County Prosecutor's Office (HCPO) detectives spoke to
Aladine Hicks, a witness to the shooting, who initially denied knowing the
identity of the shooter. In a subsequent statement, however, Hicks identifi ed
Shaquan Hyppolite as the shooter. Hicks explained that he did not identify
Hyppolite earlier because he feared for his safety. Approximately two-and-a-
half weeks before Smith's murder, Hicks had been jumped by some of
Hyppolite's associates. After giving his statements to the police, Hicks relocated
out of state.
On June 20, 2017, Hyppolite was arrested and charged with Smith's
murder. Hyppolite was ultimately indicted for murder and weapons offenses.
In July 2017, a police report outlining Hicks's statement to police was
turned over to Hyppolite as part of pretrial discovery. The trial, originally
scheduled to begin on February 28, 2018, was adjourned because Hicks refused
A-1293-19
2
to testify. Hicks allegedly refused to testify because, in August 2017, defendant
posted a Snapchat video of an unknown person holding a copy of the police
report summarizing Hicks's identification of Hyppolite as the shooter. A female
voice in the background said "[w]ell, people really be tellin', people be tellin'.
That is not right, that is not right."
While Hyppolite was detained, he and defendant had at least seven phone
conversations, which were recorded. During these conversations, the pair made
repeated references to "L" which HCPO detectives believe was a reference to a
man named Tyrone Wilson, who had been murdered a year earlier. "L"
apparently stands for "life" and "is a popular [hand] gesture between people like
[defendant] and [associates of hers] . . . by the name[s] of 'Eze' Hemingway and
Juan Hemingway on Facebook and other social media forms." The hand gesture
appeared to be a tribute to Wilson. Hyppolite also had conversations with "Eze"
Hemmingway, during which Hyppolite asked if Hemmingway had "put out that
document yet."
Hicks was associated with people that defendant's friends thought were
responsible for the death of Wilson and believed the attack on him was
retaliation for Wilson's death. After defendant posted the Snapchat video,
A-1293-19
3
Hicks's mother told HCPO detectives that she was fearful for her safety and that
of her son.
HCPO obtained a search warrant of defendant's home on February 22,
2018, which produced several electronic devices, two letters from the Hudson
County jail, and a handgun. 1 Defendant was arrested and charged with witness
tampering. On October 4, 2018, a Hudson County grand jury returned
Indictment 18-10-0857, charging defendant with the third-degree witness
tampering.
On December 19, 2018, defendant moved to dismiss the indictment.
Defendant argued first that the Snapchat post was constitutionally protected free
speech that could not be criminalized, and second, that the prosecutor's grand
jury presentation was filled with inaccurate or misleading claims. Defense
counsel alleged that the prosecutor improperly elicited testimony suggesting
defendant was involved in a gang, mischaracterized a telephone conversation
between Hyppolite and Hemingway to suggest that they were speaking about a
document, and erroneously distorted the timing of events.
1
The handgun found in the search of defendant's home was the subject of a
separate federal charge.
A-1293-19
4
On May 22, 2019, the court entered an order and accompanying written
opinion denying defendant's motion. On July 12, 2019, we denied defendant's
motion for leave to appeal.
On August 22, 2019, defendant, without waiving her right to appeal from
the trial court's May 22, 2019 order, entered into a plea agreement and pleaded
guilty to third-degree witness tampering. In exchange, the State agreed to
recommend a flat four-year sentence, to run concurrent to her federal sentence.
On October 4, 2019, the court sentenced defendant in accordance with the plea
agreement. This appeal followed.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT SHOULD HAVE BEEN GRANTED
BECAUSE HER SNAPCHAT POST WAS
CONSTITUTIONALLY PROTECTED FREE
SPEECH AND THE STATE'S GRAND JURY
PRESENTATION CONTAINED INACCURATE
AND MISLEADING CLAIMS THAT PREVENTED
THE GRAND JURY FROM MAKING AN
INFORMED DECISION.
A. As the Snapchat Post Was
Constitutionally Protected Free Speech,
The Indictment Should Have Been
Dismissed.
A-1293-19
5
B. Alternatively, Dismissal Of The
Indictment Was Required As The State
Made Inaccurate And Misleading Claims
During The Grand Jury Presentation That
Prevented The Grand Jury From Making
An Informed Decision.
We review a trial court's denial of a motion to dismiss an indictment for
abuse of discretion. State v. Bell, 241 N.J. 552, 561 (2020) (quoting State v.
Twiggs, 233 N.J. 513, 544 (2018)). We will find an abuse of discretion only
where "a decision is 'made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v.
Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). When a
trial court's decision turns on a legal question, this court reviews that
determination de novo, without deference to the trial court's interpretation.
Twiggs, 233 N.J. at 532.
Guiding our review of the denial of a motion to dismiss an indictment is
the principle that "[o]nce a grand jury returns an indictment, a court should
dismiss that indictment 'only on the clearest and plainest ground, and only when
the indictment is manifestly deficient or palpably defective.'" Bell, 241 N.J. at
560 (quoting Twiggs, 233 N.J. at 531-32). Dismissal of an indictment is a "last
resort because the public interest, the rights of victims and the integrity of the
A-1293-19
6
criminal justice system are at stake." State v. Williams, 441 N.J. Super. 266,
272 (App. Div. 2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App.
Div. 2004)).
Article I, Paragraph 6 of the New Jersey Constitution provides that
"[e]very person may freely speak, write and publish his sentiments on all
subjects, being responsible for the abuse of that right." New Jersey's free speech
clause has been interpreted to be co-extensive with the First Amendment. See
Twp. of Pennsauken v. Schad, 160 N.J. 156, 176 (1999). "'The First Amendment
generally prevents government from proscribing speech . . . or even expressive
conduct . . . because of disapproval of the ideas expressed. Content-based
regulations are presumptively invalid.'" State v. Fair, 469 N.J. Super. 538, 549
(App. Div. 2021) (quoting R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992)). "The
Supreme Court, however, has recognized 'a few limited' categories of speech
which may be restricted based on their content, including defamation, obscenity,
'fighting words,' incitement to imminent lawless action, and . . . true threats."
Ibid. (citing Virginia v. Black, 538 U.S. 343, 358-59 (2003)). Additionally, this
court has previously recognized that New Jersey's witness tampering statue is
constitutional because an "important governmental interest" exists in
"preventing intimidation of, and interference with, potential witnesses or
A-1293-19
7
informers in criminal matters." State v. Crescenzi, 224 N.J. Super. 142, 148
(App. Div. 1988).
"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.'" State v. Carroll,
456 N.J. Super. 520, 538 (App. Div. 2018) (quoting Black, 538 U.S. at 359).
"The First Amendment does not cover true threats so as 'to protect[] individuals
from the fear of violence and from the disruption that fear engenders, in addition
to protecting people from the possibility that the threatened violence will
occur.'" Ibid. (alteration in original) (quoting Black, 538 U.S. at 360). "By
contrast, mere hyperbole, even 'vehement, caustic, . . . unpleasantly sharp
attacks' and 'vituperative, abusive, and inexact' speech, are protected." Ibid.(alteration in original) (quoting Watts v. United States, 394 U.S. 705, 708
(1969)).
"Alleged threats should be considered in light of their entire factual
context, including the surrounding events and reaction of the listeners." Ibid.(quoting Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life
Activists, 290 F.3d 1058, 1075 (9th Cir. 2002)). "Contextual factors include the
language itself, and whether it is stated conditionally." Ibid.A-1293-19
8
A court must also consider: "the 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."
[Id. at 538-39 (quoting United States v. Dinwiddie, 76
F.3d 913, 925 (8th Cir. 1996)).]
We are satisfied that Judge Young properly determined that defendant's
Snapchat post was not protected speech under the First Amendment or New
Jersey's free speech analog. As he explained:
"[N.J.S.A. 2C:28-5] furthers the important
governmental interest of preventing intimidation of,
and interference with, potential witnesses or informers
in criminal matters and easily meets the test of
weighing the importance of this exercise of speech
against the gravity and probability of harm therefrom."
State v. Crescenzi, 224 N.J. Super. 142, 148 (App. Div.
1988) (citing Nebraska Press Ass'n v. Stuart, 427 U.S.
659, 562 (1976)). "When the public interest in
discovering the truth in official proceedings is balanced
against a party's right to speak to a particular witness
with the intent of tampering, that party's right is
'minuscule.'" Id. (quoting State of New Hampshire v.
Kilgus, 125 N.H. 739 (1984)). Further, "[w]hether the
statements made amount to 'true threats' is a question of
fact for the jury." Id. at 147 (quoting U.S. v. Kalevas,
622 F. Supp. 1523, 1527 (S.D.N.Y. 1985)). For
example, "[u]ttered in one context, an apparently
innocent statement such as, 'I'd be careful crossing the
street if I were you' can be merely helpful advice to a
A-1293-19
9
senior citizen." Id. at 147-48. However, "[u]ttered in
another context it may well be correctly perceived by
reasonable persons to be intended as a threat." Id. at
148.
Crescenzi found that defendant's charged offense
of witness tampering "easily meets the test of weighing
the importance of this exercise of speech against the
gravity and probability of harm therefrom." 224 N.J.
Super at 148. Defendant's Snapchat post is not
protected as an exercise of free speech. In addition,
defendant's assertion that "there are no true or imminent
threats" in the Snapchat is a question of fact for the jury.
See id. at 147 (under N.J.S.A. 2C:28-5, the issue of
"[w]hether the statements made amount to 'true threats'
is a question of fact for the jury"). Lastly, defendant's
contention that her Snapchat account is private and
inaccessible to Hicks is unavailing. As discussed
above, the "prosecutor's sole evidential obligation is to
present a prima facie case that the accused has
committed a crime." Hogan, 144 N.J. at 236. Here, the
State elicited testimony that both Hicks and his mother
had a screenshot of defendant's Snapchat post.
[(alteration in original).]
We likewise reject defendant's claims that the State made misleading
statements to the grand jury that improperly influenced its determination. Where
a motion to dismiss is based upon prosecutorial misconduct before the grand
jury, dismissal is not required "[u]nless the prosecutor's misconduct . . . is
extreme and clearly infringes upon the [grand] jury's decision-making function."
Bell, 241 N.J. at 560 (alterations in original) (quoting State v. Murphy, 110 N.J.
A-1293-19
10
20, 35 (1988)). Dismissal is only appropriate where "the prosecutor's conduct
'impinge[s] on a grand jury's independence and improperly influence[s] its
determination.'" Id. at 561 (alterations in original) (quoting State v. Francis, 191
N.J. 571, 587 (2007)).
Defendant specifically highlights three statements she argues were
inaccurate or misleading. First, she objects to the following exchange between
the prosecutor and HCPO Detective Infantes:
[Prosecutor]: There was also phone calls between . . .
Hyppolite and "Eze" Hemingway from jail, correct?
[Infantes]: That's correct.
[Prosecutor]: And they talked about whether or not
. . . Hemingway had put out that document yet, correct?
[Infantes]: Correct.
[Prosecutor]: And that was in conjunction with the
video that was then released by [defendant] on
Snapchat, correct?
[Infantes]: Correct.
[Prosecutor]: And, again, as I said, . . . Hicks has since
refused to testify in the upcoming trial against . . .
Hemingway, correct?
[Infantes]: That is correct.
A-1293-19
11
Defendant argues that this line of questioning was misleading because it
suggests that Hyppolite and Hemingway had discussed releasing the police
report outlining Hicks's statement to the police and defendant posted the
Snapchat video shortly thereafter. Defendant asserts that "at no time in the
recorded calls between Hyppolite and Hemingway did they discuss a
'document.'"
With respect to this exchange, Judge Young observed:
[j]ust moments prior to this exchange, Det. Infantes
testified that defendant posted the HCPO report on her
Snapchat account, and that Hicks informed him that he
would not testify in Hyppolite's murder trial. The
above exchange, then, merely referred the grand jury to
Det. Infantes' earlier testimony. Defendant's assertion
that the State preempted the grand jury's duty to draw
its own conclusions is without merit.
Next, defendant argues that "the prosecutor also suggested to the grand
jury through questioning that Hicks's mother had immediately reported the
Snapchat post to Infantes and that the post made Hicks fearful and resulted in
him refusing to testify" when, in fact, the report was not made immediately. In
addressing this argument, Judge Young explained:
[d]efendant also takes issue with the State's
characterization of the timing of Det. Infantes'
communications with Hick[s's] mother, Vivian. During
testimony, the detective stated that defendant posted the
HCPO report. The prosecutor then asked the detective
A-1293-19
12
if Vivian contacted him "shortly thereafter . . . [and]
communicated to you in no uncertain terms how fearful
both she and her son were because of this posting; is
that accurate?" Det. Infantes responded, "Correct."
According to defendant, Vivian actually contacted Det.
Infantes approximately six months after the Snapchat
post. The State's alleged misstatement here— "shortly
thereafter"— is highly insignificant; it bears no weight
on any of the elements in defendant's charged offense
of witness tampering. For example, if the prosecutor
had instead asked Det. Infantes if Vivian had contacted
him "six months later" after the Snapchat post, the
outcome of the proceeding would not be different.
Defendant is unable [to] demonstrate that such a
misstatement was "extreme and clearly infringe[d]
upon the grand jury's decision making function." [State
v. Murphy, 110 N.J. 20, 35 (1988).]
[(third and fourth alteration in original).]
Finally, defendant argues that "the prosecutor also elicited irrelevant and
extraneous information during the grand jury presentation that painted defendant
as a person who may be engaged in gang activity." Defendant specifically
objects to the following exchange:
[Prosecutor]: And after [Hyppolite] was indicted, he
was taken into custody; is that correct?
[Infantes]: Correct.
[Prosecutor]: And there were phone calls that were
recorded from . . . Hyppolite to [defendant]; is that
correct?
[Infantes]: Correct.
A-1293-19
13
[Prosecutor]: At least seven of those phone
conversations, correct?
[Infantes]: Yes, sir.
[Prosecutor]: And they reference things along the lines
of "L". "L" is for life, correct?
[Infantes]: Yes, sir.
[Prosecutor]: Now, "L" – the "L" kind of hand gesture
that I'm showing now is a popular gesture between
people like [defendant] and also individuals by the
name of "Eze" Hemingway and Juan Hemingway on
Facebook and other social media forms, correct?
[Infantes]: That's correct.
[Prosecutor]: And that "L" gesture appears to be a
reference to a person that those individuals I just
referenced used to denote "Ugly" Tyrone or otherwise
known as Tyrone Wilson; is that correct?
[Infantes]: That is correct.
[Prosecutor]: Tyrone Wilson was murdered the year
prior, and nearly thereafter, the "L" gesture became
popular and they – is also shown in tribute with murals
and photos of Tyrone Wilson, correct?
[Infantes]: That is correct.
[Prosecutor]: Those murals, those photos include
[defendant] and both "Eze" and Juan Hemmingway; is
that correct?
[Infantes]: Correct.
A-1293-19
14
Judge Young rejected defendant's argument on this point explaining:
[h]ere, the State's grand jury presentation does not in
any way demonstrate that defendant was a member of a
gang or linked to the murders of "Ugly" Tyrone and
Smith. There is no evidence to suggest that defendant's
"friends" were affiliated with a gang; that "Eze" and
Juan Hemingway were in a gang; that the murder of
"Ugly" Tyrone was the result of gang violence; and that
the alleged retaliatory killing of Smith was the result of
gang violence. Det. Infantes also testified that the "L"
hand sign served as a "tribute" to Ugly Tyrone; in other
words, the "L" sign was not a gang sign. Further,
contrary to defendant's assertions, defendant's posing in
photos or murals with certain individuals does not, by
itself, "link [defendant] with the murders" of "Ugly"
Tyrone and Smith. Defendant's claim that the grand
jury presentation was prejudicial or lacking in
relevance is without merit.
We discern no error and no abuse of discretion that would require reversal.
For the reasons provided by Judge Young, it is clear that the State's conduct was
not "extreme" and did not "clearly infringe[] upon the [grand] jury's decision-
making function." Bell, 241 N.J. at 560 (alterations in original) (quoting
Murphy, 110 N.J. at 35).
To the extent we have not addressed any of defendant's remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. See R. 2:11-3(e)(2).
Affirmed.
A-1293-19
15