NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5103-13T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
March 18, 2016
v.
APPELLATE DIVISION
WILLIAM BURKERT,
Defendant-Appellant.
_______________________________
Submitted January 11, 2016 - Decided March 18, 2016
Before Judges Lihotz, Nugent and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Municipal Appeal
No. 6070.
Caruso Smith Picini, P.C., attorneys for
appellant (Timothy R. Smith, of counsel;
Steven J. Kaflowitz, on the brief).
Grace H. Park, Acting Union County
Prosecutor, attorney for respondent
(Meredith L. Balo, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
J. Gregory Crane and Eugene Volokh (Scott &
Cyan Banister First Amendment Clinic, UCLA
School of Law) of the California bar,
admitted pro hac vice, attorneys for amicus
curiae Pennsylvania Center for the First
Amendment (Mr. Crane and Mr. Volokh, on the
brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Following a trial de novo before the Law Division,
defendant William Burkert, a former Union County corrections
officer, appeals from a judgment of conviction on two counts of
harassment, a petty disorderly offense, N.J.S.A. 2C:33-4(c).
Defendant's conviction was based upon his creation of two
"flyers" that contained the wedding photo of a fellow Union
County corrections officer (the Sergeant), which was altered to
include vulgar handwritten comments in speech bubbles. On
appeal, defendant argues his conviction cannot stand. He
asserts his statements during the internal affairs investigation
were inadmissible because they were coerced and the flyers
represented speech protected by the First Amendment, precluding
criminal prosecution.
Defendant's First Amendment argument is supported by amicus
Professor Eugene Volokh, on behalf of the UCLA School of Law
Scott & Cyan Banister First Amendment Clinic. Prosecution of
the harassment complaints was undertaken by the Sergeant's
private counsel, not the municipal prosecutor. See R. 7:8-7(b).
For ease in presentation, we refer to the prosecuting party as
the State, which urges the evidence was sufficient to uphold
defendant's conviction beyond a reasonable doubt.
We have reviewed the arguments of the parties, in light of
the record and applicable law. We reverse defendant's
2 A-5103-13T3
conviction because the evidence failed to prove he engaged in
harassing conduct directed to the Sergeant as required by
N.J.S.A. 2C:33-4(c). Rather, the commentary defendant added to
the Sergeant's wedding photograph was constitutionally protected
speech.
These facts were relied upon by the Law Division, taken
from the three-day Elizabeth Municipal Court trial regarding
three harassment complaints filed by the Sergeant. In addition
to the testimony of the Sergeant, the State's witnesses included
the internal affairs officer and another corrections officer who
found flyers. The State also submitted various documentary
evidence. Defendant testified on his own behalf.
The Sergeant and defendant had been co-workers for twenty
years. Throughout that time, "tension" and "animosity" developed
between the two, in part because each was a member of a
different union that represented corrections officers.
On January 8, 2011, when he arrived at work, the Sergeant
found a flyer in the parking garage containing his wedding photo
on which "pornographic things" were written. The Sergeant
testified he was "upset, angry" and "very offended and
humiliated." He recognized the handwriting on the photo as
defendant's. As the Sergeant proceeded to the gun locker, he
saw defendant and defendant's brother, a fellow corrections
3 A-5103-13T3
officer, blocking the doorway. Later during the shift,
defendant called the Sergeant regarding a work related issue and
mentioned the Sergeant's wife had "called defendant fat." When
asked by the Sergeant, defendant denied any knowledge of the
flyer found in the garage.
On January 9, 2011, the Sergeant was given a second flyer
by a co-worker, which was found in the locker room vestibule
area. Although the photograph was identical to the first, the
added message was different, and the Sergeant recognized it too
as being written by defendant.1 On January 11, 2011, Lieutenant
Patricia Mauko found two lockers overturned and the offensive
photos strewn on the floor. The Sergeant was not at work that
day but was involved in union business, during which a superior
officer handed the Sergeant a copy of the second flyer stating,
"this came out the other night." The State did not establish
defendant was working that date.
The Sergeant testified he became distraught, embarrassed,
and feared for his safety because he believed his authority with
inmates was undermined. He left work and never returned. He
filed for worker's compensation, asserting a work-related
1
Testimony from another corrections officer, who found
copies of the flyer in the locker room on January 11, 2011, was
presented. She stated on the date of that incident, the
Sergeant was not working and she could not recall whether
defendant was working.
4 A-5103-13T3
psychiatric injury, and thereafter retired. In addition to the
criminal complaints, the Sergeant filed a civil action against
defendant.
Union County was informed of the flyers on January 12,
2011. An internal affairs investigation of the Sergeant's
complaint was conducted by Sergeant Stephen Pilot from the
County Corrections Department. Sergeant Pilot questioned
defendant, explaining "he must give a statement or he would
jeopardize his employment" and be subject to departmental
discipline. In his written statement, defendant admitted to
printing the Sergeant's wedding photograph, which was posted on
NJ.com's Union County forum, and to adding the captions.2
Defendant denied making any other copies, circulating the
flyers, or asking anyone else to do so. Defendant objected to
the admissibility of his written statement given to Sergeant
Pilot. The judge never formally ruled on this objection.
Defendant testified he thought the Sergeant and he were
friends and related past favors he had done for him. He then
explained how over the years he noticed derogatory posts
repeatedly appearing on an NJ.com forum, which increasingly
2
Defendant's statement was introduced as S-3 in evidence
during the municipal court trial; however, the document is not
in the record on appeal. Further, advisory notices given to
defendant prior to Sergeant Pilot's interview, marked as J-4 and
J-5 in evidence, are not in the record.
5 A-5103-13T3
became "personal" regarding him, his brothers, and other family
members. Defendant checked the screenname attached to these
posts, and found the Sergeant's wedding picture, which was also
posted on the forum. Defendant became angry, copied the wedding
picture at home, added the captions, and hung them in his office
"in the union house."
When the Sergeant asked him about the flyers on January 8,
2011, defendant said "[n]o, that wasn't me." Examining S-1 in
evidence, defendant agreed he wrote certain derogatory comments
on the picture, but also identified other comments he did not
write, which were apparently added by others. He denied making
copies of the altered photograph or distributing them in the
garage or locker area.
On cross-examination, defendant also denied blocking the
Sergeant's entrance on January 8, and suggested the photographs
may have been removed from his desk; however, he did not know
when or by whom. He also implied the Sergeant could have
distributed the copies as he was the only person alleged to have
seen the flyers in the parking garage.
At the close of evidence, the judge concluded the direct
and circumstantial evidence supported a finding defendant made
copies of the flyers and distributed them in the garage and the
locker room as "payback" for the derogatory internet postings.
6 A-5103-13T3
Defendant was found guilty of harassment based on the incidents
occurring on January 8 and 11.3 Fines and assessments were
imposed.
In the trial de novo before the Law Division, defendant
argued no evidence proved beyond a reasonable doubt defendant
distributed the flyers or intended to harass the Sergeant.
Further, he maintained, as a matter of law, the written comments
he placed on the photograph were protected speech and could not
constitute criminal harassment because they were not
specifically directed to the Sergeant.
The Law Division judge issued a written opinion finding the
evidence sufficiently supported defendant's conviction of
harassment under N.J.S.A. 2C:33-4(c). He imposed the same
fines, costs, and assessments as the municipal court. Defendant
appeals from the June 20, 2014 order finding him guilty.
On appeal, defendant argues:
POINT I
THE COURT SHOULD HAVE ENTERED A JUDGMENT OF
ACQUITTAL AT THE END OF THE STATE'S CASE;
ALTERNATIVELY, THE COURT SHOULD HAVE FOUND
DEFENDANT NOT GUILTY AT THE END OF THE
ENTIRE CASE AS THE STATE FAILED TO PROVE
THAT DEFENDANT COMMITTED THE ACTS IN
QUESTION WITH AN INTENT TO HARASS.
3
The municipal court disposition sheet recites the complaint
regarding the January 9, 2011 incident was "merged to the other
complaint."
7 A-5103-13T3
A. Defendant was entitled to a judgment of
acquittal at the end of the State's
case.
B. The court's Garrity[4] ruling was
erroneous for several reasons,
including because the court shifted the
burden of proof on the admissibility of
defendant's statement to defendant.
C. The court's ruling admitting the
complainant's testimony that he
recognized defendant's handwriting was
erroneous.
D. The State did not prove an intent to
harass.
POINT II
THE FIRST AMENDMENT PROHIBITS DEFENDANT'S
CONVICTION FOR HARASSMENT FOR HIS EXPRESSION
OF HIS OPINION OF COMPLAINANT EVEN IF
DEFENDANT INTENDED TO HURT COMPLAINANT'S
FEELINGS.
In our review, we "consider only the action of the Law
Division and not that of the municipal court." State v.
Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State
v. Joas, 34 N.J. 179, 184 (1961)). "We are limited to
determining whether the Law Division's de novo findings 'could
reasonably have been reached on sufficient credible evidence
present in the record.'" State v. Palma, 426 N.J. Super. 510,
514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162
4
Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L.
Ed. 2d 562 (1967).
8 A-5103-13T3
(1964)), aff'd, 219 N.J. 584 (2014). See also State v. Rivera,
411 N.J. Super. 492, 497 (App. Div. 2010) ("Where a municipal
court judgment has been appealed to Superior Court, we
ordinarily review the Law Division judgment under a sufficiency
of the evidence standard.").
Initially, we find it unnecessary to review defendant's
arguments raised in Point I, which assert statements uttered in
the course of the internal affairs investigation were
inadmissible. In part, our determination results because
defendant's testimony consistently admitted the same facts he
told Sergeant Pilot, thus obviating any dispute.5
We also see no reason to untangle the arguments advanced by
defendant and countered by the State in Point II, directed to
5
We take no position on the Law Division judge's reasoning
applying the United States Supreme Court's holding in Garrity.
The United States Supreme Court held statements made by public
employees under the threat of discharge were coerced and,
therefore, inadmissible in subsequent criminal proceedings under
the Fourteenth and Fifth Amendments. Garrity, supra, 385 U.S.
at 497, 87 S. Ct. at 618, 17 L. Ed. 2d at 565. ("The option to
lose their means of livelihood or to pay the penalty of self-
incrimination is the antithesis of free choice to speak out or
to remain silent."). Nor do we suggest agreement with the
apparent determination made placing the burden to prove the
issued statement was coerced fell to defendant, as opposed to
the State. Compare N.J.R.E. 104(c) (placing the burden on the
prosecution to prove the voluntariness of a defendant's
statement), with State v. Lacaillade, 266 N.J. Super. 522, 528-
29 (App. Div. 1993) (seemingly placing the burden on defendant
to prove the threat of termination for failure to give a
statement was both subjectively held and objectively
reasonable).
9 A-5103-13T3
whether the judge erred in denying defendant's motion for entry
of a judgment of acquittal. On this issue, defendant contends
once Sergeant Pilot's testimony is excluded, the remaining
evidence failed to prove defendant created and distributed the
flyers. The State counters and urges, with or without Sergeant
Pilot's testimony, the evidence defeated defendant's motion
applying the standard articulated in State v. Reyes, 50 N.J.
454, 458-59 (1967) ("[V]iewing the State's evidence in its
entirety, be that evidence direct or circumstantial, and giving
the State the benefit of all its favorable testimony as well as
all of the favorable inferences which reasonably could be drawn
therefrom, a reasonable jury could find guilt of the charge
beyond a reasonable doubt."). Due to our finding defendant's
conduct was non-actionable protected speech, we need not
consider this question.
We turn to our discussion on whether the evidence supports
conduct proscribed as criminal harassment under N.J.S.A. 2C:33-
4(c). For the reasons set forth below, we conclude it does not.
Defendant was convicted on two counts of harassment under
N.J.S.A. 2C:33-4(c), which reads:
[A] person commits a petty disorderly
persons offense if, with purpose to harass
another, he:
. . . .
10 A-5103-13T3
c. Engages in any other course of alarming
conduct or of repeatedly committed acts with
purpose to alarm or seriously annoy such
other person.
"[C]ourts must consider the totality of the circumstances
to determine whether the harassment statute has been violated."
Cesare v. Cesare, 154 N.J. 394, 404 (1998). Evaluation of
whether facts meet this standard "must be made on a case-by-case
basis." State v. Hoffman, 149 N.J. 564, 581 (1997).
The Supreme Court has instructed "[a] violation of N.J.S.A.
2C:33-4(c) . . . requires proof of a course of conduct." J.D.
v. M.D.F., 207 N.J. 458, 478 (2011). Objective proof must show
such conduct is "alarming" or prove "a series of repeated acts
. . . done with the purpose 'to alarm or seriously annoy' the
intended victim." Ibid. "[I]n addition to a repeated act or
course of conduct, 'the statute requires that the victim . . .
be the target of harassing intent.'" N.T.B. v. D.D.B., 442 N.J.
Super. 205, 222 (App. Div. 2015) (quoting J.D., supra, 207 N.J.
at 486).
We observe the contrast in the degree between harassment
proscribed by subsection (a) of the statute, directed at
communications "likely to cause annoyance or alarm," N.J.S.A.
2C:33-4(a) (emphasis added), and harassment described under
subsection (c) requiring repeated acts accompanied by a "purpose
to alarm or seriously annoy" the intended victim, N.J.S.A.
11 A-5103-13T3
2C:34-4(c) (emphasis added). "The Legislature has made the
conscious choice that the level of annoyance caused by
communications directed to a person with purpose to harass
[under subsection (a)] need not be as serious as that required
by subsection (c)." Hoffman, supra, 149 N.J. at 581.
The Court has also advised the harassment statute may not
be applied to allow "unconstitutional vagueness and
impermissible restrictions on speech," but must be limited to
regulation of improper behavior. Ibid. This requires proof of
"a purpose to harass [a victim, which] may be inferred from the
evidence presented" and from common sense and experience. Id.
at 577. "Although a purpose to harass can be inferred from a
history between the parties, that finding must be supported by
some evidence that the actor's conscious object was to alarm or
annoy; mere awareness that someone might be alarmed or annoyed
is insufficient." N.T.B., supra, 442 N.J. Super. at 222
(quoting J.D., supra, 207 N.J. at 487). "Similarly, '[t]he
victim's subjective reaction alone will not suffice; there must
be evidence of the improper purpose.'" Ibid. (quoting J.D.,
supra, 207 N.J. at 487).
Defendant argues his creation of the vulgar flyers is not
criminally actionable because it amounted to speech protected
under the First Amendment. Because the speech was communicated
12 A-5103-13T3
to others and not directed to the Sergeant, defendant urges
criminal prosecution unconstitutionally restricts free speech,
even if defendant intended to hurt the Sergeant's feelings. The
amicus brief advances a similar argument, noting only speech
directed to an unwilling recipient is restricted, not speech
discussing an unwilling subject to an audience that includes
willing listeners.
"The harassment statute was not enacted to 'proscribe mere
speech, use of language, or other forms of expression.'"
E.M.B. v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011)
(quoting State v. L.C., 283 N.J. Super. 441, 450 (App. Div.
1995), certif. denied, 143 N.J. 325 (1996)). A conveyed
opinion, even if stated in crude language, is not harassment.
L.C., supra, 283 N.J. Super. at 450. Consequently, "proscribed
speech must be uttered with the specific intention of harassing
the listener." Ibid. See also State v. Fin. Am. Corp., 182
N.J. Super. 33, 36-38 (App. Div. 1981).
In this case, the evidence does not support a finding that
defendant's creation of the flyer found in two areas of the jail
were directed to and invaded the privacy rights of the Sergeant.
Also, no proof supports such acts were a direct attempt to alarm
or seriously annoy the Sergeant. Rather, defendant's uncouth
annotations to the Sergeant's wedding photograph that was
13 A-5103-13T3
generally circulated amounts to a constitutionally protected
expression, despite its boorish content, which bothered or
embarrassed the Sergeant.
United States Supreme Court precedent repeatedly holds
expressions remain protected even where the content hurts
feelings, causes offense, or evokes resentment. See, e.g.,
Snyder v. Phelps, 562 U.S. 443, 452, 131 S. Ct. 1207, 1215, 179
L. Ed. 2d 172, 181 (2011) (quoting Connick v. Myers, 461 U.S.
138, 145, 103 S. Ct. 1684, 1689, 75 L. Ed. 2d 708, 718-19
(1983)) ("[S]peech on public issues occupies the highest rung of
the hierarchy of First Amendment values, and is entitled to
special protection."); Hustler Magazine, Inc. v. Falwell, 485
U.S. 46, 55-56, 108 S. Ct. 876, 881-82, 99 L. Ed. 2d 41, 51-53
(1988) (reviewing an advertisement parody caricature of a
minister in an incestuous rendezvous with his mother); NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 910, 102 S. Ct. 3409,
3424, 73 L. Ed. 2d 1215, 1234 (1982) ("Speech does not lose its
protected character, however, simply because it may embarrass
others."); Hess v. Indiana, 414 U.S. 105, 107-108, 94 S. Ct.
326, 327-29, 38 L. Ed. 2d 303, 305-07 (1973) (allowing
expletives during a demonstration); Org. for a Better Austin v.
Keefe, 402 U.S. 415, 415-20, 91 S. Ct. 1575, 1576-78, 29 L. Ed.
2d 1, 3-6 (1971) (vacating prior injunction prohibiting the
14 A-5103-13T3
distribution of leaflets alleging a local businessman was
engaging in "blockbusting" by spreading rumors minorities were
moving into certain neighborhoods); Cohen v. California, 403
U.S. 15, 20, 91 S. Ct. 1780, 1783-86, 29 L. Ed. 2d 284, 291
(1971) (permitting the wearing of a jacket bearing the words
"Fuck the Draft"); Garrison v. Louisiana, 379 U.S. 64, 77-79, 85
S. Ct. 209, 217-18, 13 L. Ed. 2d 125, 134-35 (1964) (rejecting
view defamatory speech could be punished based on motives of the
speaker, even if speaker has express malice); Terminiello v.
Chicago, 337 U.S. 1, 2-3, 69 S. Ct. 894, 895, 83 L. Ed. 1131,
1133-34 (1949) (reviewing criticisms of political and racial
groups).
As is ably pointed out in the amicus brief, the altered
photograph in question was not directed to the Sergeant. Were
the Law Division's application of N.J.S.A. 2C:33-4(c) upheld,
criminal harassment would curb speech ranging from a person
submitting a Facebook post excoriating an ex-lover for cheating,
to the creation of offensive political flyers criticizing a city
council member. Eugene Volokh, One-To-One Speech vs. One-To-
Many Speech, Criminal Harassment Laws, and "Cyberstalking", 107
NW U. L. Rev. 731, 732-34, 774 (2013) (distinguishing the
constitutional protections applicable to "one-to-one speech" and
15 A-5103-13T3
from those protecting "one-to-many speech"). Therefore, we
conclude the Law Division's overbroad application is erroneous.
"Speech is often 'abusive' — even vulgar, derisive, and
provocative — and yet it is still protected under the . . .
Federal constitutional guarantees of free expression unless it
is much more than that . . . . [b]ut unless speech presents a
clear and present danger of some serious substantive evil, it
may neither be forbidden nor penalized." People v. Dietz, 549
N.E.2d 1166, 1168 (N.Y. 1989). "It is now clear that words must
do more than offend, cause indignation or anger the addressee to
lose the protection of the First Amendment." Hammond v.
Adkisson, 536 F.2d 237, 239 (8th Cir. 1976).
Defendant's comments were unprofessional, puerile, and
inappropriate for the workplace. Our opinion does not address
whether the nature of defendant's written comments, which were
posted in his workplace, may subject him to discipline by his
employer. However, they do not amount to criminal harassment.
Reversed.
16 A-5103-13T3