Witness Tampering Statute is Neither Unconstitutionally Overbroad Nor Vague

State v. Hill, 474 N.J. Super. 366 (App. Div. 2023). Defendant was convicted of carjacking and witness tampering. After the female victim of the carjacking identified defendant to police from a photo array, defendant wrote the victim a lengthy letter, at her home address. Among other things, the letter claimed that defendant was innocent and said “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.” Defendant then said “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%.”

In contesting his conviction for witness tampering, defendant argued that the witness tampering statute under which he was convicted, N.J.S.A. 2C:28-5(a), was unconstitutional as overbroad and vague. He objected to the “reasonable person” standard included in the statute, which makes conduct violative “if a person knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to do one or more specified actions, such as testify falsely or withhold testimony.”

Writing for the Appellate Division, Judge Susswein rejected defendant’s arguments. After citing the standard of review that indulges a presumption that statutes are constitutional and places the burden of proving unconstitutionality on the party challenging a statute, he noted that overbreadth and vagueness are two distinct concepts. “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.” A 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.”

After analyzing the issues in detail, Judge Susswein rejected both arguments. On the vagueness issue, the panel found support in State v. Gandhi, 201 N.J. 161 (2010), which had interpreted a comparable “reasonable person” standard in the stalking statute. Though the Supreme Court there did not address constitutional issues, Judge Susswein “deem[ed] it unlikely, if not inconceivable, that the Court would have gone to such lengths to construe the statute in a manner that would render it impermissibly vague on its face.” And as to overbreadth, a doctrine that “typically addresses First Amendment free speech concerns,” Judge Susswein observed (among other reasons for rebuffing the overbreath claim) that “[a] defendant awaiting trial has no First Amendment right to communicate directly with the victim of the alleged violent crime.”

The panel had asked the parties to brief the effect of State v. Pomianek, 221 N.J. 66 (2015), a case involving the bias intimidation statute that defendant had not raised. Defendant then relied heavily on that case. But Judge Susswein found it distinguishable in multiple respects, including that “unlike the invalidated portion of the bias intimidation statute, the witness tampering statute includes a ‘knowing’ mens rea component. [Citation]. 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.”

“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.”

In conclusion, Judge Susswein said that the court “decline[d] 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.” The latter sentence referred to the fact that defendant had raised other arguments, including complaints about the prosecutor’s summation and about the admission of certain evidence. The panel rejected those arguments, but the discussion in that regard was omitted from the published opinion.