Submitted October 15, 2018
appeal from Superior Court of New Jersey, Law Division,
Camden County, Complaint No. W-2018-005075-0408.
E. Krakora, Public Defender, attorney for appellant (M.
Edward Rivas, Assistant Deputy Public Defender, of counsel
and on the brief).
Eva Colalillo, Camden County Prosecutor, attorney for
respondent (Kevin J. Hein, Assistant Prosecutor, of counsel
and on the brief).
Judges Koblitz, Ostrer and Mayer.
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.
charges relate to four posts that defendant allegedly made on
a Facebook page assigned to a person with the user ID, Klo
Klό. For purposes of our discussion, we will assume
that defendant is Klo Klό. 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.The State alleges that defendant's
posts referred to a prosecution witness at Brown's trial.
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:
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!
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 ANNOUNCENT 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.
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.
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
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);
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.
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
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.
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
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. 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
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
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 ...