STATE OF NEW JERSEY VS. WILLIAM HILL

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4544-19 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, APPROVED FOR PUBLICATION AS REDACTED January 23, 2023 APPELLATE DIVISION Defendant-Appellant. _______________________________ Argued October 25, 2022 – Decided January 23, 2023 Before Judges Sumners, Geiger and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 19-090946. John P. Flynn, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ashley Brooks, Assistant Deputy Public Defender, 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, of counsel and on the briefs). Catlin A. Davis, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Catlin A. Davis, of counsel and on the brief). Doris Cheung argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, PC, attorneys; Doris Cheung, on the brief). Ronald K. Chen argued the cause for amicus curiae American Civil Liberties Union of New Jersey Foundation (American Civil Liberties Union of New Jersey and Rutgers Constitutional Rights Clinic, attorneys; Alexander Shalom and Jeanne M. LoCicero, of counsel and on the brief; Ronald K. Chen, on the brief). The opinion of the court was delivered by SUSSWEIN, J.A.D. Defendant, William Hill, appeals from his jury trial convictions for carjacking and witness tampering. He contends the witness tampering statute, N.J.S.A. 2C:28-5(a), is unconstitutionally overbroad and vague. The statutory framework defendant challenges on appeal provides that a witness tampering offense is committed if a person knowingly engages in conduct which a 2 A-4544-19 reasonable person would believe would cause a witness or informant to do one or more specified actions, such as testify falsely or withhold testimony.1 Defendant contends the "reasonable person" feature renders the statute unconstitutional and, to avoid constitutional infirmity, the statute must be construed to require the State to prove the defendant knew his or her conduct would cause a prohibited result. Aside from the constitutional issue, defendant contends the assistant prosecutor committed misconduct during summation and the trial court erred by admitting arrest photos into evidence. After carefully examining the relevant precedents in light of the arguments of the parties and amici, we conclude N.J.S.A. 2C:28-5(a) is neither unconstitutionally overbroad nor impermissibly vague. We decline to embrace a new rule that categorically prohibits the Legislature from using an objective "reasonable person" test to determine a defendant's culpability. We also reject defendant's trial error contentions and, therefore, affirm his convictions. I. The following facts were elicited at trial. On the morning of October 31, 2018, the victim left her car running while she went back into her house to 1 N.J.S.A. 2C:28-5(a) lists five distinct actions by the targeted witness or informant that can be caused by a defendant's witness-tampering conduct. The superseding indictment in this case alleged all five results, not just testifying falsely or withholding testimony. For purposes of brevity, we refer collectively to the statutorily enumerated actions as "prohibited" results. 3 A-4544-19 retrieve a sweater. When she returned to her car one or two minutes later, she noticed a "figure" in the vehicle. The victim ran to her car, opened the door, and told the man to get out. The man put the vehicle in reverse while the door was still open. To avoid getting hit by the door, the victim jumped into the vehicle. She grabbed the steering wheel while her legs were hanging outside the door. She pulled herself into the car as the man shifted the vehicle into drive and sped off with the door still open. He drove erratically and began hitting other vehicles. Each time the vehicle struck another car, the driver-side door would hit the victim's back. Although she was unable to remove the ignition key, she eventually managed to shift the gear into neutral. When the vehicle began to slow down, the man hit the brakes, pushed the victim aside, jumped out, and ran away. From start to finish, the carjacking incident lasted approximately two minutes. The victim drove to a police station and provided Harrison Police Department Detective Joseph Sloan a description of the carjacker. She stated he was "very, very scruffy. Like, he had hair all over his face, and it was not well maintained." He also had "big eyes" and his skin was not "too dark, but he wasn't light skinned." She stated the man was wearing a red winter "skully" hat, gray hoodie, olive or brown vest, and faded blue jeans. 4 A-4544-19 Detective Sloan collected video surveillance recordings from the area, including from a coffee shop and a convenience store. The video footage and screenshot stills were introduced as evidence at trial to show what the suspect was wearing. On November 6, 2018, the victim went to the police station to view a photo array. Sergeant Charles Schimpf showed the victim six photographs. He handed the victim one photo at a time and instructed her to stack the photos on top of one another. Despite the instruction to view the photos sequentially, the victim started looking at the photos simultaneously, comparing one against the other. The record indicates the victim at one point "really thought" the man who attempted to steal her car was an individual in a photograph that was not defendant. However, she ultimately selected defendant's photograph from the array. At trial, she testified, I recognized him by what I saw in my car. Like, I knew that I . . . know that I saw the person. You know, I was face to face with him. I know exactly what he looks like. The pictures just didn't look up to date, and so, . . . when I was looking at all of the pictures, I knew that I recognized him, but there were so many things missing. I was like this is definitely the guy, but the facial hair isn't there. You know what I mean? He was so scruffy and it looked like the 5 A-4544-19 picture was taken with a flash, so he looked a little bit lighter, but . . . I just . . . knew. The victim stated she was confident in her identification because she recognized the carjacker's eyes, explaining, "[w]hen you look at someone in the eyes at such a terror -- terrific moment . . . . [i]t's something that doesn't leave your head." She also recognized the man's mouth and nose. The victim stated she was eighty percent confident in her identification. Defendant was arrested on November 27, 2018. Following the arrest, Detective Sloan took six photographs of defendant. In the arrest photos, defendant is wearing faded jeans, a black jacket, a grey hoodie, and a red skully cap. In April 2019, while awaiting trial, defendant sent a letter addressed to the victim's home. The letter, as redacted for its use at trial, reads: Dear Ms. [Victim], Now that my missive had [sic] completed its passage throughout the atmosphere and reached its paper destination, I hope and pray it finds its recipient in the very best of health, mentally as well as physically and in high spirits. I know you're feeling inept to be a recipient of a correspondence from an unfamiliar author but please don't be startled because I'm coming to you in peace. I don't want or need any more trouble. Before I proceed, let me cease your curiosity of who I be. I am the guy who has been arrested and 6 A-4544-19 charged with Car Jacking upon you. You may be saying I have the audacity to write to you and you may report it but I have to get this off my chest, I am not the culprit of this crime. Ms. [Victim], I've read the reports and watched your videotaped statement and I'm not disputing the ordeal you've endured. I admire your bravery and commend your success with conquering a thief whose intention was to steal your vehicle. You go girl! [smiley face]. Anyway, I'm not saying your eyes have deceived you. I believe you've seen the actor but God has created humankind so close in resemblance that your eyes will not be able to distinguish the difference without close examination of people at the same time. Especially not while in wake of such commotion you've endured. .... Ms. [Victim], due to a woman giving me the opportunity to live life instead of aborting me, I have the utmost regards for women, therefore, if it was me you accosted, as soon as my eyes perceived my being in a vehicle belonging to a beautiful woman, I would have exited your vehicle with an apology for my evil attempts. However, I am sorry to hear about the ordeal you had to endure but unfortunately, an innocent man (me) is being held accountable for it. Ms. [Victim], I don’t know what led you into selecting my photo from the array, but I place my faith in God. By His will the truth will be revealed and my innocence will be proven. But however, I do know He works in mysterious ways so I'll leave it in His Hands. .... 7 A-4544-19 Ms. [Victim], I'm not writing to make you feel sympathy for me, I'm writing a respectful request to you. If it's me that you're claiming is 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%. Ms. [Victim], I'm not expecting a response from you but if you decide to respond and want a reply please inform me of it. Otherwise you will not hear from me hereafter until the days of trial. Well, it's time I bring this missive to a close so take care, remain focus, be strong and stay out of the way of trouble. Sincerely, [Defendant] Defendant was initially charged by indictment with first-degree carjacking, N.J.S.A. 2C:15-2(a)(1). Following the letter incident, a superseding indictment added a charge of third-degree witness tampering, N.J.S.A. 2C:28-5(a). In June 2019, the trial court held a Wade2 hearing to determine the admissibility of the eyewitness identification. On July 8, 2019, the trial court issued an oral ruling denying defendant's motion to suppress the victim's identification of defendant as the perpetrator. 2 United States v. Wade, 388 U.S. 218 (1967). 8 A-4544-19 In fall 2019, defendant was tried before a jury over the course of several days. The jury found defendant guilty on both counts. On June 10, 2020, the trial judge denied defendant's motion for a new trial and sentenced defendant to a twelve-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the carjacking conviction. The judge imposed a consecutive three-year term of imprisonment on the witness tampering conviction. Defendant raises the following contentions for our consideration on appeal: POINT I TO AVOID CONSTITUTIONAL INFIRMITY, THE WITNESS-TAMPERING STATUTE MUST BE INTERPRETED TO REQUIRE THAT THE DEFENDANT KNOW THE SPEECH OR CONDUCT WOULD CAUSE A WITNESS TO IMPEDE OR OBSTRUCT AN INVESTIGATION OR PROCEEDING. A. FOR THE WITNESS-TAMPERING STATUTE TO BE CONSTITUTIONAL, IT MUST BE CONSTRUED TO REQUIRE KNOWLEDGE THAT THE SPEECH OR CONDUCT WOULD CAUSE A WITNESS TO IMPEDE OR OBSTRUCT AN INVESTIGATION OR PROCEEDING. OTHERWISE, THE STATUTE MUST BE DEEMED OVERBROAD AND VAGUE. B. MR. HILL'S CONVICTIONS MUST BE REVERSED BECAUSE THE JURY WAS NOT 9 A-4544-19 INSTRUCTED ON AND DID NOT FIND THAT THE STATE PROVED THIS ESSENTIAL ELEMENT BEYOND A REASONABLE DOUBT. POINT II THE PROSECUTOR MADE NUMEROUS MISLEADING ARGUMENTS CONTRARY TO LAW AND FACT AS A MEANS OF BOLSTERING THE WEAK IDENTIFICATION, DEPRIVING MR. HILL OF A FAIR TRIAL AND REQUIRING REVERSAL. A. THE SIMULATION USED BY THE PROSECUTOR IN SUMMATION TO ARGUE THAT, JUST LIKE THE JURORS WOULD NOT FORGET HIS FACE, THE VICTIM WOULD NOT FORGET THE PERPETRATOR'S FACE, WAS EXTREMELY MISLEADING. HIS ARGUMENT THAT THE STRESS OF THE INCIDENT MADE HER IDENTIFICATION MORE RELIABLE COMPOUNDED THE HARM. B. THE PROSECUTOR ELICITED MISLEADING TESTIMONY AND MADE A MISGUIDING ARGUMENT CONTRARY TO FACT AND LAW: THAT BECAUSE THE EYEWITNESS THOUGHT MR. HILL LOOKED THE MOST LIKE THE SUSPECT, HE WAS THE SUSPECT. C. THE CUMULATIVE EFFECT OF THE REPEATED PROSECUTORIAL MISCONDUCT DEPRIVED MR. HILL OF A FAIR TRIAL. 10 A-4544-19 POINT III THE ARREST PHOTOS SHOULD HAVE BEEN EXCLUDED BECAUSE THEY WERE MINIMALLY PROBATIVE, HIGHLY PREJUDICIAL, AND CUMULATIVE. AT MINIMUM, A LIMITING INSTRUCTION SHOULD HAVE BEEN GIVEN. REVERSAL IS THUS REQUIRED. II. We first address defendant's constitutional arguments. The State maintains we should not consider defendant's overbreadth and vagueness contentions because he did not challenge the constitutionality of the witness tampering statute before or during the trial. Defendant first argued the State was required to prove he knew his conduct would cause the victim to engage in prohibited acts in his post-verdict motion for a new trial. Defendant, in the relevant point heading of his initial appeal brief, asserts the constitutional argument was "partially raised below." See R. 2:6-2(a)(6). In State v. Galicia, our Supreme Court explained, "[g]enerally, an appellate court will not consider issues, even constitutional ones, which were not raised below." 210 N.J. 364, 383 (2012) (emphasis added). Accordingly, "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. 11 A-4544-19 Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super 542, 548 (App. Div. 1959)). Because the problem of witness intimidation is a matter of great public interest—one that has a direct impact on the integrity of the criminal justice process and public safety—we choose to address defendant's constitutional arguments notwithstanding that they were not fully presented to the trial court. 3 We begin our substantive analysis by acknowledging certain foundational legal principles. "A presumption of validity attaches to every statute" and the burden is on the party challenging the statute to establish its unconstitutionality. State v. Lenihan, 219 N.J. 251, 265–66 (2014). Defendant contends the witness tampering statute is both overbroad and vague. Overbreadth and vagueness are analytically distinct concepts that implicate different constitutional concerns. When considering overbreadth, the "first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail." State v. B.A., 458 N.J. Super. 391, 407 (App. Div. 2019) (quoting State v. Saunders, 302 N.J. Super. 509, 517 (App. Div. 1997)). In 3 Because this case raises important issues and implicates the need to deter witness intimidation, we invited the Attorney General, the American Civil Liberties Union of New Jersey (ACLU), and the Association of Criminal Defense Lawyers of New Jersey to participate as amicus curiae. We express our gratitude to the amici for their helpful arguments. 12 A-4544-19 State v. Burkert, our Supreme Court commented that invalidating a statute on overbreadth grounds is a "drastic remedy." 231 N.J. 257, 276 (2017). The Court in Burkert explained that "[v]ague and overly broad laws criminalizing speech have the potential to chill permissible speech, causing speakers to silence themselves rather than utter words that may be subject to penal sanctions." Ibid. (first citing Reno v. ACLU, 521 U.S. 844, 871–72 (1997); and then citing NAACP v. Button, 371 U.S. 415, 433 (1963)). The Court acknowledged, however, that certain categories of speech may be criminalized, noting that a statute will not be struck down on First Amendment grounds when, for example, the speech at issue "is integral to criminal conduct, . . . physically threatens or terrorizes another, or . . . is intended to incite imminent unlawful conduct." Id. at 281. In B.A., we held that "[w]ith respect to speech 'integral to criminal conduct,' the 'immunity' of the First Amendment will not extend to 'a single and integrated course of conduct' that violates a valid criminal statute." 458 N.J. Super. at 408 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)). We further explained in B.A. that when an overbreadth challenge is rejected, "[t]he court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge 13 A-4544-19 only if the enactment is impermissibly vague in all of its applications." Id. at 410 (quoting Saunders, 302 N.J. Super. at 517 (alteration in original)). While the overbreadth doctrine typically addresses First Amendment free speech concerns, "[t]he constitutional doctrine of vagueness 'is essentially a procedural due process concept grounded in notions of fair play.'" State v. Borjas, 436 N.J. Super. 375, 395 (App. Div. 2014) (quoting State v. Emmons, 397 N.J. Super. 112, 124 (App. Div. 2007)). It "is well settled that '[a] criminal statute is not impermissibly vague so long as a person of ordinary intelligence may reasonably determine what conduct is prohibited so that he or she may act in conformity with the law.'" Id. at 395–96 (quoting Saunders, 302 N.J. Super. at 520–21 (alteration in original)). Therefore, the test for vagueness is whether "persons of 'common intelligence must necessarily guess at [the statute's] meaning and differ as to its application.'" Id. at 396 (quoting State v. Mortimer, 135 N.J. 517, 532 (1994)). A statute need not be a "model of precise draftsmanship," but rather need only "sufficiently describe[] the conduct that it proscribes." Afanador, 134 N.J. 162, 169 (1993). State v. "[I]mprecise but comprehensible normative standard[s]" are sufficient to survive constitutional challenge. See Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). 14 A-4544-19 In State v. Crescenzi, we rejected a vagueness and overbreadth challenge to a predecessor version of the witness tampering statute. 224 N.J. Super. 142, 148 (App. Div. 1988). Regarding overbreadth, we held "the statute 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." Id. at 148. In 2008, the witness tampering statute was significantly amended. L. 2008, c. 81, § 1. The Senate Judiciary Committee Statement noted that the statute was amended to "ensure that tampering with a witness or informant is applied as broadly as possible." Sen. Judiciary Comm. Statement to A. 1598 4 (L. 2008, c. 81). The societal interest in preventing intimidation of, and interference with, potential witnesses or informers in criminal matters remains an important governmental objective. See State v. Ramirez, 252 N.J. 277, 301 (2022) (noting the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-36(c), was amended in 2012 "to provide that victims have the right to be free from intimidation, harassment and abuse by any person, including the defendant or any person acting in support of or on behalf of the defendant" (emphasis omitted) (quoting Sen. Budget & Appropriations Comm. Statement to A. 2380 1 (L. 2012, c. 15 A-4544-19 27))). Nothing in the 2008 amendments undermines the rationale supporting the conclusion we reached in Crescenzi regarding overbreadth. We note that very recently—after oral argument in the matter before us—the United States Supreme Court granted certiorari in a Colorado criminal case to address the First Amendment implications of an objective reasonable person test applied to a stalking statute. Counterman v. Colorado, 598 U.S. ___ (2023). The issue in that case is whether a "reasonable person" interpreting a statement as a threat of violence is sufficient to establish a "true threat" removed from First Amendment protection, 4 or whether the speaker must subjectively know or intend the threatening nature of the statement. Petition for Writ of Certiorari at 2, Counterman, 598 U.S. ___ (No. 22-138). That issue is distinct from the one before us. Here, we are not evaluating speech directed broadly or to an unspecified class of persons. Instead, we are solely evaluating speech directed to victims, witnesses, or informants who are linked to an official proceeding or investigation. N.J.S.A. 2C:28-5(a). Also, in this case, the communication was sent by a charged defendant through regular mail directly to the victim- 4 "True threats" to commit violence are not protected by the First Amendment. See Watts v. United States, 394 U.S. 705, 708 (1969). 16 A-4544-19 witness's home. We are not addressing the criminalization of social media posts broadcast to a wide audience. A defendant awaiting trial has no First Amendment right to communicate directly with the victim of the alleged violent crime. Were it otherwise, a court setting the conditions of pretrial release under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, might be foreclosed from imposing a "no contact" order. 5 Thus, the contours of the "true threat" doctrine are not at issue in this appeal. Accordingly, we reject defendant's current overbreadth claim. The 2008 amendments significantly impact the analytically distinct question of whether the statute in its present form is impermissibly vague. The 2008 amendments added the "reasonable person" standard for determining culpability that defendant now challenges. Because that feature was not at issue in Crescenzi, the legal analysis and conclusion in that case provide no guidance on the vagueness question before us in this appeal. 5 We confirmed at oral argument the trial court had not issued an explicit pretrial "no contact" order. We emphasize this is not a case where defense counsel or his investigator reached out to the victim as part of the defense investigation or litigation strategy. See Ramirez, 252 N.J. at 302 (recognizing a distinction between disclosing a victim's address to the defense team and to the defendant himself or herself). Rather, defendant reached out to the victim directly and entirely on his own. The record does not indicate how defendant learned the victim's home address. 17 A-4544-19 The witness tampering statute now reads in pertinent part: a. Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to: (1) Testify or inform falsely; (2) Withhold any testimony, information, document or thing; (3) Elude legal process summoning him to testify or supply evidence; (4) Absent himself from any proceeding or investigation to which he has been legally summoned; or (5) Otherwise obstruct, delay, prevent or impede an official proceeding or investigation. [N.J.S.A. 2C:28-5 (emphasis added).] In State v. Gandhi, 201 N.J. 161 (2010), our Supreme Court interpreted a substantially similar "reasonable person" feature in the stalking statute, N.J.S.A. 2C:12-10.6 The defendant argued the jury instruction on the stalking 6 N.J.S.A. 2C:12-10(b) provides: A person is guilty of stalking . . . if he [or she] purposely or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his [or her] safety or 18 A-4544-19 charge "was insufficient because it did not explicitly require the jury to find that a defendant had the conscious object to induce, or awareness that his conduct would cause, fear of bodily injury or death in his victim."7 Gandhi, 201 N.J. at 169. In rejecting that claim, the Supreme Court reasoned: [W]e do not discern a legislative intent to limit the reach of the anti-stalking statute to a stalker-defendant who purposefully intended or knew that his behavior would cause a reasonable person to fear bodily injury or death. Rather, we read the offense to proscribe a defendant from engaging in a course of repeated stalking conduct that would cause such fear in an objectively reasonable person. We view the statute's course-of-conduct focus to be on the accused's conduct and what that conduct would cause a reasonable victim to feel, not on what the accused intended. [Id. at 170.] The Court further explained, "the reasonable-person standard demonstrates a legislative preference for the objective perspective of the fact-finder to assess a reasonable person's reaction to the course of conduct engaged in by the accused stalker." Id. at 180. ____________________ the safety of a third person or suffer emotional distress. 7 We note the jury charge/statutory construction argument the defendant raised in Gandhi, while not couched in constitutional terms, is very similar to the argument defendant raised in the present matter in his motion for a new trial. 19 A-4544-19 Although the Court in Gandhi was not called upon to address the constitutionality of the reasonable-person standard, 8 we deem it unlikely, if not inconceivable, that the Court would have gone to such lengths to construe the 8 The Supreme Court in State v. Pomianek, 221 N.J. 66 (2015), explicitly acknowledged that Gandhi did not address the constitutionality of the stalking statute, explaining: The State compares N.J.S.A. 2C:16-1(a)(3) [bias intimidation] to the stalking statute, N.J.S.A. 2C:1210, which we addressed in State v. Gandhi, 201 N.J. 161 (2010). Unlike N.J.S.A. 2C:16-1(a)(3), the stalking statute has a mens rea component. The stalking statute provides that a defendant is guilty of a crime "if he [or she] purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his [or her] safety or the safety of a third person or suffer other emotional distress." N.J.S.A. 2C:12-10(b) (emphasis added). In Gandhi, we determined only that the Legislature did not intend by the statute's wording to impose a requirement on the prosecution to prove that the defendant purposefully or knowingly "cause[d] a reasonable victim to fear bodily injury or death." 201 N.J. at 187. Our task in Gandhi was statutory interpretation and not constitutional adjudication. [221 N.J. 66, 88 n.8 (2015) (second alteration in original) (emphasis omitted).] The witness tampering statute, like the stalking statute, also has a mens rea component in that it requires proof the defendant "knowingly engage[d] in conduct which a reasonable person would believe would cause a witness or informant to [engage in a prohibited action]." N.J.S.A. 2C:28-5(a) (emphasis added). 20 A-4544-19 statute in a manner that would render it impermissibly vague on its face. Following Gandhi, moreover, we upheld the constitutionality of the stalking statute. B.A., 458 N.J. Super. at 398. Defendant contends the witness tampering statute is impermissibly vague based on our Supreme Court's ruling in Pomianek.9 The Court in that case addressed the constitutionality of N.J.S.A. 2C:16-1(a)(3), "a bias-crime statute that allows a jury to convict a defendant even when bias did not motivate the commission of the offense." Pomianek, 221 N.J. at 69. The relevant portion of the bias intimidation statute at that time provided: (a) A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S. 2C:33-4; N.J.S. 2C:39-3; N.J.S. 2C:39-4 or N.J.S. 2C:39-5, (1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or (2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, 9 Defendant did not rely upon, or even cite to, Pomianek in his initial appeal brief. He did so in compliance with our request to the parties to file supplemental briefs to address Pomianek. 21 A-4544-19 color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or (3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. [Id. at 81 (emphasis added) (quoting N.J.S.A. 2C:161).] The Court concluded that N.J.S.A. 2C:16-1(a)(3) was unconstitutionally vague, noting, "[i]n focusing on the victim's perception and not the defendant's intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law." Id. at 70. The Court added: Unlike subsections (a)(1) and (a)(2), subsection (a)(3) focuses not on the state of mind of the accused, but rather on the victim's perception of the accused's motivation for committing the offense. Thus, if the victim reasonably believed that the defendant committed the offense of harassment with the purpose to intimidate or target him based on his race or color, the defendant is guilty of bias intimidation. N.J.S.A. 22 A-4544-19 2C:16–1(a)(3). Under subsection (a)(3), a defendant may be found guilty of bias intimidation even if he [or she] had no purpose to intimidate or knowledge that his [or her] conduct would intimidate a person because of his [or her] race or color. In other words, an innocent state of mind is not a defense to a subsection (a)(3) prosecution; the defendant is culpable for his words or conduct that led to the victim's reasonable perception even if that perception is mistaken. [Id. at 82 (emphasis omitted).] Ultimately, the Supreme Court struck subsection (a)(3) of the bias statute but allowed subsections (a)(1) and (a)(2) to stand. Id. at 91–92. Defendant and the ACLU argue that the "reasonable person" feature in the witness tampering statute is analytically indistinguishable from the portion of the bias intimidation statute struck down on vagueness grounds in Pomianek. We disagree. A close examination reveals significant, substantive differences between N.J.S.A. 2C:16-1(a)(3) and N.J.S.A. 2C:28-5(a)(1). It is true the witness tampering statute, like the bias intimidation feature that was invalidated in Pomianek, "criminalizes [the] defendant's failure to apprehend the reaction that his words would have [on] another." Id. at 90. It also is true that a defendant may be found guilty of witness tampering even if he or she did not intend to impede a proceeding or investigation. 23 A-4544-19 But the similarities between the two statutes end there. As we have already noted, unlike the invalidated portion of the bias intimidation statute, the witness tampering statute includes a "knowing" mens rea component. See note 8. Most significantly, the invalidated portion of the bias intimidation statute employed a subjective test under which a defendant's culpability was determined from the perspective of the specific victim who was targeted. The witness tampering statute, in contrast, does not depend on the victim's subjective reaction. Rather, like the stalking statute, the witness tampering statute uses a purely objective test that relies on the "objective perspective of the fact-finder." See Gandhi, 201 N.J. at 180. The Pomianek Court highlighted the subjective nature of the bias crime provision, which focused on the victim's personal perspective. 221 N.J. at 89. The Court explained: Of course, a victim's reasonable belief about whether he [or she] has been subjected to bias may well depend on the victim's personal experiences, cultural or religious upbringing and heritage, and reaction to language that is a flashpoint to persons of his [or her] race, religion, or nationality. A tone-deaf defendant may intend no bias in the use of crude or insensitive language, and yet a victim may reasonably perceive animus. The defendant may be wholly unaware of the victim's perspective, due to a lack of understanding of the emotional triggers to which a reasonable person of that race, religion, or nationality would react. [Ibid.] 24 A-4544-19 That led the Court to conclude that "guilt may depend on facts beyond the knowledge of the defendant or not readily ascertainable by him [or her]," thereby rendering the statute impermissibly vague. Ibid. The reasonable-person standard employed in the witness tampering statute, in contrast, does not account for, much less depend on, what the victim actually perceived or believed. Rather, it is an objective standard. As our Supreme Court explained in Gandhi, [t]he legislative choice to introduce a reasonableperson standard undercuts defendant's argument that the plain language of the statute calls for application of a subjective standard . . . . To the contrary, the reasonable-person standard demonstrates a legislative preference for the objective perspective of the factfinder to assess a reasonable person's reaction to the course of conduct engaged in by the accused stalker. [201 N.J. at 180.] The objective formulation of the witness tampering statute effectively eliminates the concern expressed in Pomianek regarding idiosyncratic personal characteristics of the victim. From a due process notice standpoint, the purely objective reasonable-person standard is vastly different from a subjective standard like the one used in the invalidated bias intimidation provision. Furthermore, the bias crime provision struck down in Pomianek was a uniquely convoluted culpability formulation that essentially required a 25 A-4544-19 defendant to divine what the victim would perceive as to the defendant's motivation. Notably, the constitutionally deficient portion of the bias intimidation statute did not focus on the impact of a defendant's conduct but rather on the victim's speculation as to what the defendant was thinking. That statute thus required clairvoyance, for lack of a better description, because it presupposed a defendant would somehow be privy to the subjective thought processes of the targeted victim or victims. Because it uses a purely objective standard, N.J.S.A. 2C:28-5(a) does not suffer from the constitutional defect identified in Pomianek. The witness tampering statute, unlike the invalidated bias intimidation provision, does not require a defendant to know the "personal experiences" or "emotional triggers" of the victim and thus does not depend on "facts beyond the knowledge of the defendant or not readily ascertainable by him [or her]." Pomianek, 221 N.J. at 89. We also emphasize that the invalidated provision in the bias intimidation statute was unprecedented—that culpability formulation had not been used in any preexisting statute and was never replicated in New Jersey or any other jurisdiction so far as we are aware. The objective "reasonable person" formulation employed in the witness tampering statute, in contrast, appears throughout the New Jersey Code of Criminal Justice. 26 In addition to the A-4544-19 stalking statute construed in Gandhi and upheld in B.A., a "reasonable person" test is used in the following criminal statutes 10: Criminal Attempt, N.J.S.A. 2C:5-1(a)(1) and (a)(3) (a defendant is culpable if he or she engages in conduct that would be criminal "if the attendant circumstances were as a reasonable person believes them to be"); Human Trafficking, 2C:13-9(a)(2) (a defendant is culpable if he or she forces labor from someone "under circumstances in which a reasonable person would conclude that there was a substantial likelihood that the person was a victim of human trafficking"); Distribution/Possession with Intent to Distribute Imitation Controlled Dangerous Substances, N.J.S.A. 2C:35-11(a)(3) (a defendant is culpable if he or she distributes/possesses with intent to distribute a noncontrolled substance "[u]nder circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance"); Financial Facilitation of Criminal Activity (Money Laundering), N.J.S.A. 2C:21-25(a) to (c) (a defendant is culpable if he or she possesses property "known or which a reasonable person would believe to be derived from criminal activity"; or "engages in a transaction involving property known or which a reasonable person would believe to be derived from criminal activity"; or participates in "transactions in property known or which a reasonable person would believe to be derived from criminal activity"); 10 The following statutory summaries are provided only to demonstrate the Legislature's use of the reasonable-person standard. They do not contain all the elements of the listed offenses. 27 A-4544-19 Minor's Access to Loaded Firearm, N.J.S.A. 2C:5815(a)(2) (a defendant is culpable if he or she "knows or reasonably should know" a minor could access a loaded firearm, unless he or she "stores the firearm in a location which a reasonable person would believe to be secure"); Criminal Trespass, N.J.S.A. 2C:18-3(c) (a defendant is culpable if, without consent, he or she peers into another's window "under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed"); Invasion of Privacy, N.J.S.A. 2C:14-9(a) and (b) (a defendant is culpable if he or she, without license or privilege, "and under circumstances in which a reasonable person would know that another may expose intimate parts," observes another without their consent; or, records an image of someone's intimate parts without that person's consent "under circumstances in which a reasonable person would not expect to have his undergarment-clad intimate parts observed"). Theft from Grave Site, N.J.S.A. 2C:20-2.3 (a defendant is culpable if he or she removes a headstone without permission "under circumstances which would cause a reasonable person to believe that the object was unlawfully removed"). So far as we are aware, none of the foregoing statutes have been challenged, much less stricken, on constitutional grounds because they employ a reasonable-person standard. In these circumstances, we decline to create a new categorical rule that would invalidate the use of an objective reasonable person test for determining criminal culpability. 28 A-4544-19 In sum, we conclude that a person of ordinary intelligence can reasonably determine whether his or her conduct constitutes witness tampering. See Borjas, 436 N.J. Super. at 395–96. In this particular application, moreover, we are satisfied defendant was on constitutionally sufficient notice that the letter he addressed to the carjacking victim's private residence violated N.J.S.A. 2C:28-5(a) as measured from the perspective of a reasonable person. As the ACLU acknowledges, "[o]f course, it is not necessary to a convict[ion] for witness tampering that the witness actually give false testimony or obstruct a proceeding, if the conduct of defendant made the risk of such behavior sufficiently likely." Amicus further acknowledges that "[w]ritten communications can, depending on context, often convey meanings that are at odds with their facial text." Here, although defendant's letter was not explicitly threatening, the context shows defendant wanted the victim to recant her identification of him. Importantly, the context of the letter shows he knew where she lived and was prepared to interact with her directly and not through his attorney or the prosecutor's office. We believe defendant was thus on sufficient notice that a reasonable person would believe an eyewitness confronted with such a letter would feel pressured to accede to his request to recant an out-of-court identification and refrain from testifying against him at trial. 29 A-4544-19 III. [At the direction of the court, the published version of this opinion omits the court's discussion of the trial prosecutor's conduct during summation. See R. 1:36-3.] IV. [At the direction of the court, the published version of this opinion omits the court's discussion of the trial court's decision to admit pictures taken of defendant at the time of his arrest. See R. 1:36-3.] V. [At the direction of the court, the published version of this opinion omits the court's discussion of defendant's contention that the cumulative effect of the trial errors warranted reversal of his convictions. See R. 1:36-3.] VI. To the extent we have not specifically addressed them, any remaining arguments raised by defendant lack sufficient merit to warrant discussion. See R. 2:11-3(e)(2). Affirmed. 30 A-4544-19

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