State v. Hill

1

State of New Jersey, Plaintiff-Respondent, v. William Hill, a/k/a Raheem Hill, Ricky Hill, Russell Johnson, Jerry Jones, Raheem Sander, Raheem Sanders, Joseph Sanders, Bruce Strickland, Bruce Strictland, Andrew Young, Andy Young, and Steven Young, Defendant-Appellant.

No. A-41-22

Supreme Court of New Jersey

January 18, 2024

Argued October 10, 2023

On certification to the Superior Court, Appellate Division whose opinion is reported at 474 N.J.Super. 366 (App. Div. 2023).

John P. Flynn, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney John P. Flynn, of counsel and on the briefs).

Patrick R. McAvaddy, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor attorney; Patrick R. McAvaddy, on the briefs).

Tim Sheehan, Deputy Attorney 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, Deputy Solicitor General, Tim Sheehan, and Amanda G. Schwartz, Deputy Attorney General, of counsel and on the brief).

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

Doris Cheung argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Doris Cheung, on the brief).

WAINER APTER, J., writing for a unanimous Court.

In this appeal, the Court considers whether the State's witness tampering statute, N.J.S.A. 2C:28-5(a), is unconstitutionally overbroad on its face or was unconstitutionally applied to defendant William Hill.

Defendant was charged with first-degree carjacking after the victim, A.Z., selected his photo in a photo array. While defendant was detained and awaiting trial, he sent a letter addressed to A.Z. by name at her home. Defendant maintained that he did not commit the carjacking and stated, "[i]f it's me that you're claiming as the actor of this crime without a doubt, then disregard this correspondence. Otherwise please tell the truth if you're wrong or not sure 100%." A.Z. delivered the letter to the police, and defendant was charged with third-degree witness tampering, in addition to the carjacking charge.

Under N.J. S.A. 2C:28-5(a), a person commits third-degree witness tampering "if, believing that an official proceeding or investigation is pending . . . he knowingly engages in conduct" that does not involve force or the threat of force but "which a reasonable person would believe would cause a witness or informant to" testify or inform falsely, withhold any testimony, elude legal process, absent himself from any proceeding or investigation, or otherwise obstruct an official proceeding or investigation. The letter did not explicitly ask A.Z. to do any of those things.

At trial, A.Z. testified that receiving the letter "was terrifying" and made her "scared" to testify because she realized defendant knew where she lived. A redacted version of the letter was admitted into evidence, and a detective read the letter aloud to the jury. The State focused on the contents of the letter during opening and closing statements. The prosecutor told the jury during summation to "read the letter" and "look at the contents [of the letter]." The prosecutor's slideshow presentation during summation included portions of the letter, and the jury heard a playback of the detective reading the letter during deliberations. Defendant was convicted of both charges.

The Appellate Division affirmed, holding that "N.J.S.A. 2C:28-5(a) is neither unconstitutionally overbroad nor impermissibly vague" and that "[a] defendant awaiting trial has no First Amendment right to communicate directly with the victim of the alleged violent crime." 474 N.J.Super. 366, 370, 379 (App. Div. 2023).

The Court granted certification "limited to whether the witness tampering statute, N.J.S.A. 2C:28-5(a), is unconstitutionally overbroad." 253 N.J. 595 (2023).

HELD: N.J.S.A. 2C:28-5(a) is not unconstitutionally overbroad. It may, however, have been unconstitutionally applied to defendant in this case. The Court therefore vacates defendant's witness tampering conviction, without dismissing any portion of the indictment, and remands the case for a new trial on that charge. The Court does not vacate defendant's conviction for carjacking.

1. Some types of speech are so utterly lacking in social value that they fall outside the protections of the First Amendment altogether. Those historically unprotected categories of speech include fighting words, obscenity, child pornography, incitement, defamation, true threats, and speech integral to criminal conduct. The parties here dispute the relevance of the final two exceptions in this case. A true threat is speech that, when taken in context, objectively threatens unlawful violence. Speech integral to criminal conduct is speech that is intended to bring about a particular unlawful act. (pp. 15-18)

2. Overbreadth is unlike a typical facial challenge because it does not require a challenger to establish that no set of circumstances exists under which the statute would be valid. Rather, a court may hold a law facially invalid for overbreadth under the First Amendment if the challenger demonstrates that the statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. See United States v. Hansen, 599 U.S. 762, 769-70 (2023). A law's unconstitutional applications must be realistic, and their number must be substantially disproportionate to the statute's lawful sweep. Without a lopsided ratio, courts must handle unconstitutional applications case-by-case. (pp. 18-19)

3. The Court reviews the witness tampering statute and agrees with the Appellate Division that N.J.S.A. 2C:28-5(a) is not unconstitutionally overbroad, but for different reasons. The Court does not agree that any communication between a defendant awaiting trial and the victim of a violent crime categorically falls outside the protections of the First Amendment. Courts do not have freewheeling authority to declare new categories of speech outside the First Amendment simply because the value of the speech is less than its societal costs. Instead, speech falls outside the scope of the First Amendment if it falls into one of the historic and traditional categories to which the First Amendment has not applied. (pp. 19-22) 4. The reason defendant's overbreadth claim fails is that there are not far more witness tampering prosecutions for protected speech than for conduct or unprotected speech. Indeed, the heartland of witness tampering prosecutions either do not involve speech at all or prosecute speech that is integral to criminal conduct and is thus unprotected. On the other side of the ledger, the list of potentially unconstitutional prosecutions under N.J. S.A. 2C:28-5(a) appears to be either zero or one (this case). The ratio of unlawful-to-lawful applications of the witness tampering statute is not lopsided enough to justify facial invalidation for overbreadth. Quite simply, "[t]his is not the stuff of overbreadth -- as-applied challenges can take it from here." Hansen, 599 U.S. at 785. (pp. 22-27)

5. Although N.J.S.A. 2C:28-5(a) is not facially overbroad, it may have been unconstitutionally applied to defendant. Defendant was prosecuted for the contents of his letter, which would have been unproblematic if the jury had been required to find that his speech fell into a recognized category of unprotected speech. The true threats exception is not relevant here because defendant's letter does not contain any threat of violence and he was prosecuted for third-degree witness tampering, which specifically excludes the threat of force. And because the letter is facially innocuous, in order to prove that it was speech integral to criminal conduct -- in this case, witness tampering -- the State was required to prove that defendant intended the letter to cause A.Z. to testify falsely, withhold testimony or information, elude legal process, absent herself from a legal proceeding or investigation, or otherwise obstruct, delay, prevent, or impede an official proceeding or investigation. Because the jury here was not so charged, defendant's conviction for witness tampering must be vacated. The Court provides guidance for the new trial. (pp. 27-31)

6. The Court declines to dismiss the witness tampering charge because there is no requirement that the speech succeed in bringing about an unlawful act and because a reasonable jury could conclude that defendant sent the letter to pressure A.Z. to refrain from testifying against him -- i.e., intending to tamper with a witness. (pp. 31-32)

REVERSED as to count two and REMANDED to the trial court.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, FASCIALE, and NORIEGA join in JUSTICE WAINER APTER's opinion.

OPINION

WAINER APTER, JUSTICE

In this appeal, we consider whether the State's witness tampering statute, N.J.S.A. 2C:28-5(a), is unconstitutionally overbroad on its face or was unconstitutionally applied to defendant William Hill. We hold that N.J.S.A. 2C:28-5(a) is not unconstitutionally overbroad. It may, however, have been unconstitutionally applied to defendant in this case. We therefore vacate defendant's witness tampering conviction, without dismissing any portion of the indictment, and remand the case for a new trial on that charge. We do not vacate defendant's conviction for...