State v. Fair
| Citation | 469 N.J.Super. 538,266 A.3d 1049 |
| Decision Date | 09 December 2021 |
| Docket Number | DOCKET NO. A-0913-19 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Calvin FAIR, Defendant-Appellant. |
| Court | New Jersey Superior Court – Appellate Division |
Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Daniel S. Rockoff, of counsel and on the brief).
Carey J. Huff, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lori Linskey, Acting Monmouth County Prosecutor, attorney; Carey J. Huff, of counsel and on the brief).
Before Judges Fisher, Currier and DeAlmeida.
The opinion of the court was delivered by
FISHER, P.J.A.D.
Defendant was charged in a one-count indictment of making terroristic threats within the meaning of "N.J.S.A. 2C:12-3a and/or b." The indictment was never amended, and defendant never moved for a particularization of what part of N.J.S.A. 2C:12-3 was being charged. Instead, the matter went to trial and, after two days of testimony, the jury was asked to decide: whether, on May 1, 2015, defendant threatened to commit a crime of violence "with the purpose to terrorize" Officer Sean Healey, or whether he made that threat "in reckless disregard of the risk of causing such terror," or whether he made that threat "with the purpose to put [Officer Healey] in imminent fear of death" under circumstances reasonably causing Officer Healey "to believe the immediacy of the threat and the likelihood it would be carried out." The jury responded "guilty" to this multi-faceted question.
Defendant appeals, arguing (1) the reckless-disregard portion of N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad, and (2) the indictment, jury instructions, and verdict sheet were "poorly structured," making it "[im]possible to know whether the jury reached a truly unanimous verdict." We agree with both arguments. The reckless-disregard portion of N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad because it has the capacity to criminalize speech and expressions protected by the First Amendment. This holding alone requires that defendant be given a new trial since no one can tell from the jury verdict whether defendant was convicted under the unconstitutional portion of N.J.S.A. 2C:12-3(a) or the remaining provisions which clearly pass constitutional muster. We also agree with defendant's argument that the jury verdict sheet insufficiently guarded against the lack of jury unanimity.
We first discuss the evidence adduced at trial and the manner in which the jury was asked to determine defendant's guilt, and then explain why the reckless-disregard portion of N.J.S.A. 2C:12-3(a) is unconstitutionally broad, followed by a discussion as to why the judge's instructions did not ensure a unanimous verdict as required by Rule 1:8-9.
The jury heard evidence that, on May 1, 2015, Patrolmen Sean Healey and Samuel Hernandez, as well as another officer, responded to an alleged domestic violence incident at defendant's Freehold home. When they arrived, officers found L.W., defendant's girlfriend, standing outside with her child; defendant was inside. L.W. explained to the officers that she was asked to leave the home and she merely wanted her television, still inside, before departing. Defendant then began yelling from a second-story window. An exchange between defendant and the officers that lasted about twenty minutes was recorded by a dash-mounted motor vehicle recording device; it included the following excerpts:
With those last comments, the officers departed.
Later, Officer Healey checked defendant's Facebook page, finding the following statements posted on Facebook by defendant on April 8, 2015:
Yall niggas gonna fu$kin morn! R yall tryin take another life, its probably sumbdy yu growup with right! Smh Whts its gonna take! To see another life go right Smh for all yu niggas tht wanna be on ur bs at times like this! Im take ur fu$kin soul! And all thm hammers they found inn my house! None of thm was mines, I still got all of mines1 lol Im askin yu freehold niggss ni$e, PlZ DON'T DO THIS BEEFIN SHIT AT A TIME LIKE THIS. -- [angry face emoji] feeling mad.
On April 9, 2015, defendant posted again:
This is a post for, Freehold Boro poli$e, Homdel State poli$e, & Monmouth county Tfor$e, FBI, DEA, keep wall wat$hin ur not gonna get my life from fb doesn't show anythg about my life but only tha thgs i wanna post lol Oh yea ... it does show I TAKE VERY GOOD $ARE OF MY MOTHER & KIDS LMFAO KEEP TRYING. -- [tongue-out emoji] feeling silly.
Defendant also added a comment to this post:
Defendant posted a similar message on Facebook about an hour after the officers left his home on May 1, 2015, followed by an additional comment a few hours later: All these social media statements were admitted into evidence at trial.
The State called three witnesses to testify: Officers Healey and Hernandez, and Detective Richard Schwerthoffer, who testified about the search of defendant's home in February 2015 and his suggestion on May 1, 2015 that Officer Healey look into what might be on defendant's Facebook page. Defendant called Officer Healey to testify in his case and then rested.
In charging the jury, the judge read the single count of the indictment – repeating the confusing statement in the indictment that defendant was charged with acting "contrary to the provisions of N.J.S.A. 2C:12-3(a) and/or (b)" (emphasis added)2 – and then read N.J.S.A. 2C:12-3(a), appropriately leaving out irrelevant phrases:
A person is guilty of a crime if he threatens to commit any crime of violence with the purpose to terrorize another or in reckless disregard of the risk of causing such terror.[3 ]
The judge then broke down the statute for the jury, explaining that to convict the State was required to prove beyond a reasonable doubt two things, the first being that defendant "threatened to commit a crime of violence." The second element was described in alternatives, requiring the jury to determine whether the threat:...
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