State v. Fair

307 A.3d 1126

256 N.J. 213

STATE of New Jersey, Plaintiff-Appellant,

v.Calvin FAIR, Defendant-Respondent.

A-20 September Term 2022

086617

Supreme Court of New Jersey.

Argued September 12, 2023

Decided January 16, 2024

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 469 N.J. Super. 538 (App. Div. 2021).

Alecia Woodard, Assistant Prosecutor, argued the cause for appellant (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Daniel I. Bornstein, Designated Counsel, of counsel and on the briefs).

Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Daniel S. Rockoff, of counsel and on the briefs).

Michael L. Zuckerman, Deputy Solicitor General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General, Michael L. Zuckerman, David M. Galemba, Tim Sheehan, and Catlin A. Davis, Deputy Attorneys General, of counsel and on the briefs).

Alexander Shalom, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation and Rutgers Constitutional Rights Clinic Center for Law & Justice, attorneys; Alexander Shalom and Jeanne Lo-Cicero, of counsel and on the briefs, and Ronald K. Chen, on the briefs).

Brace S. Rosen, Morristown, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman, Stein Walder Hayden, attorneys; CJ Griffin, of counsel and on the briefs, and Bruce S. Rosen and Dillon, J. McGuire, on the briefs).

JUSTICE WAINER APTER delivered the opinion of the Court.

₂₁₉This case requires us to decide whether a prosecution for terroristic threats under N.J.SA 2C:12-3(a) premised on a mens rea of recklessness is constitutional under the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. N.J.S.A. 2C:12-3(a) provides that a person is guilty of third-degree terroristic threats "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 or inconvenience."

Defining recklessness in this context as "morally culpable conduct, involving a ‘deliberate decision to endanger another,’ " Counterman v. Colorado, 600 U.S. 66, 79, 143 S.Ct. 2106, 216 L.Ed.2d 775 (2023) (quoting Voisine v. United States, 579 U.S. 686, 694, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016)), we hold that a mental state of recklessness is, constitutionally sufficient for a "true threats" prosecution under N.J.S.A. 2C:12-3(a). We also hold that an objective ₂₂₀ocomponent is necessary for a "true threats" prosecution to survive constitutional scrutiny: the State must prove that a reasonable person similarly situated to the victim would have viewed the message as threatening violence.

Finally, defendant Calvin Fair, was charged with terroristic threats in violation of N.J.S.A. 2C:12-3(a) and/or (b). We agree with the Appellate Division that on remand, the jury should be charged that they must unanimously agree as to wheth- er defendant violated N.J.S.A. 2C:12-3(a), (b), or both.

We thus affirm in part and reverse in part the judgment of the Appellate Division and remand for a new trial consistent with this opinion.

I.

A.

In February 2015, State Police executed a search warrant at the home defendant shared with his mother and tenants in Freehold. They seized several handguns. In April 2015, defendant referenced the search in three public Facebook posts or comments: (1) "And all thm hammers¹ they found inn my house! None of thm was mines, I still got all of mines lol"; (2) "This is a post for, Freehold Boro poli$e, … keep wall wat$hin ur not gonna get my life from fb"; (3) "I hope they burn freehold down!!! … & yu if look my way again, im joinin ISIS. Lol."

On May 1, 2015, three Freehold Borough Police Department officers, including Officer Sean Healey, responded to a 911 domestic-violence call at defendant’s home. Healey knew defendant and was aware that firearms had been recovered during the February raid.

When police arrived, they saw defendant’s girlfriend L.W. outside with her children and some of her belongings. She told police ₂₂₁that she had been "thrown out of the house" but wanted to retrieve her television, which was still inside. Officers repeatedly knocked on the door, trying to speak to defendant to get the TV returned. Defendant did not answer.

L.W. stated that she did not want to file a complaint or seek a restraining order against defendant. While the police were filling out a victim-notification form, defendant stuck his head out of a second-floor window and yelled: "Please. Just leave. Just leave this property. Because I don’t want nothing -- I don’t want to talk. There’s nothing to talk about. All I did was put her stuff out and she can leave. … Please just leave. … You all causing too much chaos over here for nothing."

Police moved off defendant’s front yard and onto the sidewalk. They asked defendant if he would return L.W.’s television. Defendant appeared to become more agitated, calling the situation "petty" and shouting, "[h]ow many times y’all been through this? How many times y’all came over here? …. Just leave my property. Just leave my property. I’m taking care of my mother." Officer Healey yelled, "[w]e’re going to go. Have a good day, Calvin. Thank you for your cooperation."

Instead of leaving, Officer Healey told L.W. they were going to sign a complaint on her behalf "right now." L.W. said "Calvin, go in the house before you get in trouble," but defendant began yelling profanities at Officer Healey, repeatedly calling him the "f---ing devil." When Officer Healey said, "[w]e’ll be back with your warrant. … So, have fun," defendant shouted, "[y]ou talking crazy, [epithet], talking about signing a f---ing complaint. … Always trying to break somebody’s a--. That’s all you think about, breaking somebody’s a--. Sign a complaint to what? I never did anything to you …. Absolutely nothing. I never did anything. … Get the f--- out of here, [epithet]." Healey responded, "That’s disorderly conduct, too."

Defendant then yelled: "F---ing thirsty a-- [epithet]. You thirsty. Worry about a head shot, [epithet]." Officer Healey replied, "And that there is a threat." Another officer on the scene agreed, "That ₂₂₂is threats right there." At no point did defendant brandish a weapon.

The officers then got in their cars and left.

Approximately two hours later, defendant posted the following on Facebook:

I think its about tht time to give Mr. Al Sharpton & Mr Rev[ ] Jackson, internal affairs & my law[yer] a $all, one thg yu wont do is disrespe$t me of my 84 year old mother kause yu $arry a badge & another thg yu not doin is tryin to keep me inn system with patty fines & $omplaints whn im not ur job …. My 84 year old mother didnt deserves her door bein ki$k inn by 30 armed offi$ers with aks & shields drawn. … YU WILL PAY, WHOEVA HAD ANY INVOLVEMENT. WASTIN TAX PAYERS MONEY! BRINING ALL THM OFFI$ERS OUT FOR A 84 YEAR OLD WOMEN! SO SAD BUT WE WILL HAVE THA LAST LAUGH! #JUSTWAITONIT[.]

Defendant then replied to his own post, "THN YU GOT THESE … OFFI$ERS THINKIN THEY KNO UR LIFE!!! …. I KNO WHT YU DRIVE & WHERE ALL YU MOTHERFU$KERS LIVE AT[.]"

After reviewing the public posts, police issued a terroristic threats complaint against defendant. Officer Healey testified that in addition to the "[w]orry about a head shot" comment, he was concerned from the Facebook posts that defendant still had his guns and knew where the officers lived and what cars they drove.

B.

The terroristic threats statute under which the police charged defendant reads, in relevant part:

(a) A person is guilty of a crime of the third degree 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 ….

(b) A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

[N.J.S.A. 2C:12-3 (emphasis added).]

On August 13, 2015, a Monmouth County Grand Jury indicted defendant on one count of third-degree terroristic threats for

₂₂₃threatening to commit a crime of violence with the purpose to terrorize [Officer Healey], or in reckless disregard of the risk of causing such terror, or by threatening to kill [Officer Healey], with the purpose to put him in imminent fear of death under circumstances reasonably causing [Officer Healey], to believe the immediacy of the threat and the likelihood that it would be carried out, contrary to the provisions of N.J.S.A. 2C:12-3a and/or b.

Defendant moved to dismiss the indictment, arguing, among other things, that N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad because it criminalizes terroristic threats made with a mens rea of recklessness. The trial court denied the motion, finding defendant’s statements, including the "worry about a head shot" comment and the subsequent Facebook post about knowing "what cars the officers drove and where they lived," were a true threat that was not protected by the First Amendment. The court also concluded that defendant’s statements were "properly categorized as a threat to kill or to harm" Healey, and "were not political and were not made in a political context."

At trial, the State asked that the court charge the jury on N.J.S.A. 2C:12-3(a) and/or (b). Defendant did not object. The court charged the jury on N.J.S.A. 2C:12-3(a) as follows:

The first element that the State must prove beyond a reasonable doubt is that defendant threatened to commit any crime of violence. The State alleges that defendant threatened to kill Patrolman Sean Healey.

The words or actions

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