State v. Carroll, DOCKET NO. A-0152-18T6

• Citation: 196 A.3d 106,456 N.J.Super. 520
• Decision Date: 08 November 2018
• Docket Number: DOCKET NO. A-0152-18T6
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Quiasia N. CARROLL, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

456 N.J.Super. 520

196 A.3d 106

STATE of New Jersey, Plaintiff-Respondent,

v.Quiasia N. CARROLL, Defendant-Appellant.

DOCKET NO. A-0152-18T6

Superior Court of New Jersey, Appellate Division.

Submitted October 15, 2018

Decided November 8, 2018

Joseph E. Krakora, Public Defender, attorney for appellant (M. Edward Rivas, Assistant Deputy Public Defender, of counsel and on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).

Before Judges Koblitz, Ostrer and Mayer.

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant 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 ID, 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.¹ The State alleges that defendant's posts referred to a prosecution witness at Brown's trial.

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:²

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 the 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, defendant 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 persons 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.³

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 the charged offenses. In support of its probable cause finding, the court cited the complaint-warrant and affidavit of probable cause.⁴ The court specifically rejected defendant's First Amendment argument, concluding that the Facebook posts did not fall within protected speech. The court did not address the defense argument that defendant's statements were not lewd, indecent, or obscene.

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 charges; (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:

I. 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., 231 N.J. 497, 515, 176 A.3d 813 (2018). We consider whether the trial court rested its decision on an impermissible basis, or failed to consider relevant factors. Ibid. We are not obliged to defer to "a decision based upon a misconception of the law." Ibid. (quoting State v. C.W., 449 N.J. Super. 231, 255, 156 A.3d 1088 (App. Div. 2017) ). We consider de novo issues of law such as statutory interpretation. State v. Pinkston, 233 N.J. 495, 507, 187 A.3d 113 (2018) ; S.N., 231 N.J. at 515, 176 A.3d 813. In particular, we are obliged to independently examine whether defendant's speech is protected by the First Amendment. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (identifying appellate court's "constitutional duty to conduct an independent...