SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1293-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAHOUNA DUTTON,

Defendant-Appellant.

__________________________

Submitted April 28, 2022 – Decided June 15, 2022

Before Judges Mitterhoff and Alvarez.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 18-10-0857.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Laura B. Lasota, Assistant Deputy Public 

Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Colleen Kristan Signorelli, Assistant 

Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-1293-19

Defendant Shahouna Dutton appeals from an October 15, 2019 judgment 

of conviction sentencing her to four years for witness tampering, N.J.S.A. 

2C:28-5(a)(3). We affirm, substantially for the reasons articulated by Judge 

John A. Young in his thoughtful and well-reasoned opinion. 

We discern the following facts from the record. On March 29, 2017, 

Terrell Smith was shot and killed in Jersey City. During the ensuing 

investigation, Hudson County Prosecutor's Office (HCPO) detectives spoke to 

Aladine Hicks, a witness to the shooting, who initially denied knowing the 

identity of the shooter. In a subsequent statement, however, Hicks identified 

Shaquan Hyppolite as the shooter. Hicks explained that he did not identify 

Hyppolite earlier because he feared for his safety. Approximately two-and-ahalf weeks before Smith's murder, Hicks had been jumped by some of 

Hyppolite's associates. After giving his statements to the police, Hicks relocated 

out of state. 

On June 20, 2017, Hyppolite was arrested and charged with Smith's 

murder. Hyppolite was ultimately indicted for murder and weapons offenses. 

In July 2017, a police report outlining Hicks's statement to police was 

turned over to Hyppolite as part of pretrial discovery. The trial, originally 

scheduled to begin on February 28, 2018, was adjourned because Hicks refused 
3

A-1293-19

to testify. Hicks allegedly refused to testify because, in August 2017, defendant 

posted a Snapchat video of an unknown person holding a copy of the police 

report summarizing Hicks's identification of Hyppolite as the shooter. A female 

voice in the background said "[w]ell, people really be tellin', people be tellin'. 

That is not right, that is not right." 

While Hyppolite was detained, he and defendant had at least seven phone 

conversations, which were recorded. During these conversations, the pair made 

repeated references to "L" which HCPO detectives believe was a reference to a 

man named Tyrone Wilson, who had been murdered a year earlier. "L" 

apparently stands for "life" and "is a popular [hand] gesture between people like 

[defendant] and [associates of hers] . . . by the name[s] of 'Eze' Hemingway and 

Juan Hemingway on Facebook and other social media forms." The hand gesture 

appeared to be a tribute to Wilson. Hyppolite also had conversations with "Eze" 

Hemmingway, during which Hyppolite asked if Hemmingway had "put out that 

document yet." 

Hicks was associated with people that defendant's friends thought were 

responsible for the death of Wilson and believed the attack on him was 

retaliation for Wilson's death. After defendant posted the Snapchat video, 
4

A-1293-19

Hicks's mother told HCPO detectives that she was fearful for her safety and that 

of her son.

HCPO obtained a search warrant of defendant's home on February 22, 

2018, which produced several electronic devices, two letters from the Hudson 

County jail, and a handgun.1 Defendant was arrested and charged with witness 

tampering. On October 4, 2018, a Hudson County grand jury returned 

Indictment 18-10-0857, charging defendant with the third-degree witness 

tampering.

On December 19, 2018, defendant moved to dismiss the indictment. 

Defendant argued first that the Snapchat post was constitutionally protected free 

speech that could not be criminalized, and second, that the prosecutor's grand 

jury presentation was filled with inaccurate or misleading claims. Defense 

counsel alleged that the prosecutor improperly elicited testimony suggesting

defendant was involved in a gang, mischaracterized a telephone conversation 

between Hyppolite and Hemingway to suggest that they were speaking about a 

document, and erroneously distorted the timing of events. 

1

 The handgun found in the search of defendant's home was the subject of a 

separate federal charge. 
5

A-1293-19

On May 22, 2019, the court entered an order and accompanying written 

opinion denying defendant's motion. On July 12, 2019, we denied defendant's 

motion for leave to appeal. 

On August 22, 2019, defendant, without waiving her right to appeal from 

the trial court's May 22, 2019 order, entered into a plea agreement and pleaded 

guilty to third-degree witness tampering. In exchange, the State agreed to 

recommend a flat four-year sentence, to run concurrent to her federal sentence. 

On October 4, 2019, the court sentenced defendant in accordance with the plea 

agreement. This appeal followed.

On appeal, defendant presents the following arguments for our 

consideration:

POINT I

DEFENDANT'S MOTION TO DISMISS THE 

INDICTMENT SHOULD HAVE BEEN GRANTED 

BECAUSE HER SNAPCHAT POST WAS 

CONSTITUTIONALLY PROTECTED FREE 

SPEECH AND THE STATE'S GRAND JURY 

PRESENTATION CONTAINED INACCURATE 

AND MISLEADING CLAIMS THAT PREVENTED 

THE GRAND JURY FROM MAKING AN 

INFORMED DECISION. 

A. As the Snapchat Post Was 

Constitutionally Protected Free Speech, 

The Indictment Should Have Been 

Dismissed.
6

A-1293-19

B. Alternatively, Dismissal Of The 

Indictment Was Required As The State 

Made Inaccurate And Misleading Claims 

During The Grand Jury Presentation That 

Prevented The Grand Jury From Making 

An Informed Decision.

We review a trial court's denial of a motion to dismiss an indictment for 

abuse of discretion. State v. Bell, 241 N.J. 552, 561 (2020) (quoting State v. 

Twiggs, 233 N.J. 513, 544 (2018)). We will find an abuse of discretion only 

where "a decision is 'made without a rational explanation, inexplicably departed 

from established policies, or rested on an impermissible basis.'" Flagg v. Essex 

Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. 

Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). When a 

trial court's decision turns on a legal question, this court reviews that 

determination de novo, without deference to the trial court's interpretation.

Twiggs, 233 N.J. at 532. 

Guiding our review of the denial of a motion to dismiss an indictment is 

the principle that "[o]nce a grand jury returns an indictment, a court should 

dismiss that indictment 'only on the clearest and plainest ground, and only when 

the indictment is manifestly deficient or palpably defective.'" Bell, 241 N.J. at 

560 (quoting Twiggs, 233 N.J. at 531-32). Dismissal of an indictment is a "last 

resort because the public interest, the rights of victims and the integrity of the 
7

A-1293-19

criminal justice system are at stake." State v. Williams, 441 N.J. Super. 266, 

272 (App. Div. 2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App. 

Div. 2004)). 

Article I, Paragraph 6 of the New Jersey Constitution provides that 

"[e]very person may freely speak, write and publish his sentiments on all 

subjects, being responsible for the abuse of that right." New Jersey's free speech 

clause has been interpreted to be co-extensive with the First Amendment. See

Twp. of Pennsauken v. Schad, 160 N.J. 156, 176 (1999). "'The First Amendment 

generally prevents government from proscribing speech . . . or even expressive 

conduct . . . because of disapproval of the ideas expressed. Content-based 

regulations are presumptively invalid.'" State v. Fair, 469 N.J. Super. 538, 549 

(App. Div. 2021) (quoting R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992)). "The 

Supreme Court, however, has recognized 'a few limited' categories of speech 

which may be restricted based on their content, including defamation, obscenity, 

'fighting words,' incitement to imminent lawless action, and . . . true threats."

Ibid. (citing Virginia v. Black, 538 U.S. 343, 358-59 (2003)). Additionally, this 

court has previously recognized that New Jersey's witness tampering statue is 

constitutional because an "important governmental interest" exists in 

"preventing intimidation of, and interference with, potential witnesses or 
8

A-1293-19

informers in criminal matters." State v. Crescenzi, 224 N.J. Super. 142, 148 

(App. Div. 1988). 

"A 'true threat' includes 'statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful 

violence to a particular individual or group of individuals.'" State v. Carroll, 

456 N.J. Super. 520, 538 (App. Div. 2018) (quoting Black, 538 U.S. at 359). 

"The First Amendment does not cover true threats so as 'to protect[] individuals 

from the fear of violence and from the disruption that fear engenders, in addition 

to protecting people from the possibility that the threatened violence will 

occur.'" Ibid. (alteration in original) (quoting Black, 538 U.S. at 360). "By 

contrast, mere hyperbole, even 'vehement, caustic, . . . unpleasantly sharp 

attacks' and 'vituperative, abusive, and inexact' speech, are protected." Ibid.

(alteration in original) (quoting Watts v. United States, 394 U.S. 705, 708 

(1969)). 

"Alleged threats should be considered in light of their entire factual 

context, including the surrounding events and reaction of the listeners." Ibid.

(quoting Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life 

Activists, 290 F.3d 1058, 1075 (9th Cir. 2002)). "Contextual factors include the 

language itself, and whether it is stated conditionally." Ibid. 
9

A-1293-19

A court must also consider: "the reaction of the 

recipient of the threat and of other listeners; whether 

the threat was conditional; whether the threat was 

communicated directly to its victim; whether the maker 

of the threat had made similar statements to the victim 

in the past; and whether the victim had reason to believe 

that the maker of the threat had a propensity to engage 

in violence."

[Id. at 538-39 (quoting United States v. Dinwiddie, 76 

F.3d 913, 925 (8th Cir. 1996)).]

We are satisfied that Judge Young properly determined that defendant's 

Snapchat post was not protected speech under the First Amendment or New 

Jersey's free speech analog. As he explained:

"[N.J.S.A. 2C:28-5] 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." 

State v. Crescenzi, 224 N.J. Super. 142, 148 (App. Div. 

1988) (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 

659, 562 (1976)). "When the public interest in 

discovering the truth in official proceedings is balanced 

against a party's right to speak to a particular witness 

with the intent of tampering, that party's right is 

'minuscule.'" Id. (quoting State of New Hampshire v. 

Kilgus, 125 N.H. 739 (1984)). Further, "[w]hether the 

statements made amount to 'true threats' is a question of 

fact for the jury." Id. at 147 (quoting U.S. v. Kalevas, 

622 F. Supp. 1523, 1527 (S.D.N.Y. 1985)). For 

example, "[u]ttered in one context, an apparently 

innocent statement such as, 'I'd be careful crossing the 

street if I were you' can be merely helpful advice to a 
10 A-1293-19

senior citizen." Id. at 147-48. However, "[u]ttered in 

another context it may well be correctly perceived by 

reasonable persons to be intended as a threat." Id. at 

148. 

Crescenzi found that defendant's charged offense 

of witness tampering "easily meets the test of weighing 

the importance of this exercise of speech against the 

gravity and probability of harm therefrom." 224 N.J. 

Super at 148. Defendant's Snapchat post is not 

protected as an exercise of free speech. In addition, 

defendant's assertion that "there are no true or imminent 

threats" in the Snapchat is a question of fact for the jury. 

See id. at 147 (under N.J.S.A. 2C:28-5, the issue of 

"[w]hether the statements made amount to 'true threats' 

is a question of fact for the jury"). Lastly, defendant's 

contention that her Snapchat account is private and 

inaccessible to Hicks is unavailing. As discussed 

above, the "prosecutor's sole evidential obligation is to 

present a prima facie case that the accused has 

committed a crime." Hogan, 144 N.J. at 236. Here, the 

State elicited testimony that both Hicks and his mother 

had a screenshot of defendant's Snapchat post. 

[(alteration in original).] 

We likewise reject defendant's claims that the State made misleading 

statements to the grand jury that improperly influenced its determination. Where 

a motion to dismiss is based upon prosecutorial misconduct before the grand 

jury, dismissal is not required "[u]nless the prosecutor's misconduct . . . is 

extreme and clearly infringes upon the [grand] jury's decision-making function." 

Bell, 241 N.J. at 560 (alterations in original) (quoting State v. Murphy, 110 N.J. 
11 A-1293-19

20, 35 (1988)). Dismissal is only appropriate where "the prosecutor's conduct 

'impinge[s] on a grand jury's independence and improperly influence[s] its 

determination.'" Id. at 561 (alterations in original) (quoting State v. Francis, 191 

N.J. 571, 587 (2007)). 

Defendant specifically highlights three statements she argues were 

inaccurate or misleading. First, she objects to the following exchange between 

the prosecutor and HCPO Detective Infantes: 

[Prosecutor]: There was also phone calls between . . .

Hyppolite and "Eze" Hemingway from jail, correct? 

[Infantes]: That's correct. 

[Prosecutor]: And they talked about whether or not 

. . . Hemingway had put out that document yet, correct? 

[Infantes]: Correct. 

[Prosecutor]: And that was in conjunction with the 

video that was then released by [defendant] on 

Snapchat, correct? 

[Infantes]: Correct. 

[Prosecutor]: And, again, as I said, . . . Hicks has since 

refused to testify in the upcoming trial against . . . 

Hemingway, correct? 

[Infantes]: That is correct. 
12 A-1293-19

Defendant argues that this line of questioning was misleading because it 

suggests that Hyppolite and Hemingway had discussed releasing the police 

report outlining Hicks's statement to the police and defendant posted the 

Snapchat video shortly thereafter. Defendant asserts that "at no time in the 

recorded calls between Hyppolite and Hemingway did they discuss a 

'document.'" 

With respect to this exchange, Judge Young observed: 

[j]ust moments prior to this exchange, Det. Infantes 

testified that defendant posted the HCPO report on her 

Snapchat account, and that Hicks informed him that he 

would not testify in Hyppolite's murder trial. The 

above exchange, then, merely referred the grand jury to 

Det. Infantes' earlier testimony. Defendant's assertion 

that the State preempted the grand jury's duty to draw 

its own conclusions is without merit. 

Next, defendant argues that "the prosecutor also suggested to the grand 

jury through questioning that Hicks's mother had immediately reported the 

Snapchat post to Infantes and that the post made Hicks fearful and resulted in 

him refusing to testify" when, in fact, the report was not made immediately. In 

addressing this argument, Judge Young explained: 

[d]efendant also takes issue with the State's 

characterization of the timing of Det. Infantes' 

communications with Hick[s's] mother, Vivian. During 

testimony, the detective stated that defendant posted the 

HCPO report. The prosecutor then asked the detective 
13 A-1293-19

if Vivian contacted him "shortly thereafter . . . [and] 

communicated to you in no uncertain terms how fearful 

both she and her son were because of this posting; is 

that accurate?" Det. Infantes responded, "Correct." 

According to defendant, Vivian actually contacted Det. 

Infantes approximately six months after the Snapchat

post. The State's alleged misstatement here— "shortly 

thereafter"— is highly insignificant; it bears no weight 

on any of the elements in defendant's charged offense 

of witness tampering. For example, if the prosecutor 

had instead asked Det. Infantes if Vivian had contacted 

him "six months later" after the Snapchat post, the 

outcome of the proceeding would not be different. 

Defendant is unable [to] demonstrate that such a 

misstatement was "extreme and clearly infringe[d] 

upon the grand jury's decision making function." [State 

v. Murphy, 110 N.J. 20, 35 (1988).] 

[(third and fourth alteration in original).] 

Finally, defendant argues that "the prosecutor also elicited irrelevant and 

extraneous information during the grand jury presentation that painted defendant 

as a person who may be engaged in gang activity." Defendant specifically 

objects to the following exchange: 

[Prosecutor]: And after [Hyppolite] was indicted, he 

was taken into custody; is that correct? 

[Infantes]: Correct. 

[Prosecutor]: And there were phone calls that were 

recorded from . . . Hyppolite to [defendant]; is that 

correct? 

[Infantes]: Correct. 
14 A-1293-19

[Prosecutor]: At least seven of those phone 

conversations, correct? 

[Infantes]: Yes, sir. 

[Prosecutor]: And they reference things along the lines 

of "L". "L" is for life, correct? 

[Infantes]: Yes, sir. 

[Prosecutor]: Now, "L" – the "L" kind of hand gesture 

that I'm showing now is a popular gesture between 

people like [defendant] and also individuals by the 

name of "Eze" Hemingway and Juan Hemingway on 

Facebook and other social media forms, correct?

 

[Infantes]: That's correct. 

[Prosecutor]: And that "L" gesture appears to be a 

reference to a person that those individuals I just 

referenced used to denote "Ugly" Tyrone or otherwise 

known as Tyrone Wilson; is that correct? 

[Infantes]: That is correct. 

[Prosecutor]: Tyrone Wilson was murdered the year 

prior, and nearly thereafter, the "L" gesture became 

popular and they – is also shown in tribute with murals 

and photos of Tyrone Wilson, correct? 

[Infantes]: That is correct. 

[Prosecutor]: Those murals, those photos include 

[defendant] and both "Eze" and Juan Hemmingway; is 

that correct? 

[Infantes]: Correct. 
15 A-1293-19

Judge Young rejected defendant's argument on this point explaining: 

[h]ere, the State's grand jury presentation does not in 

any way demonstrate that defendant was a member of a 

gang or linked to the murders of "Ugly" Tyrone and 

Smith. There is no evidence to suggest that defendant's 

"friends" were affiliated with a gang; that "Eze" and 

Juan Hemingway were in a gang; that the murder of 

"Ugly" Tyrone was the result of gang violence; and that 

the alleged retaliatory killing of Smith was the result of 

gang violence. Det. Infantes also testified that the "L" 

hand sign served as a "tribute" to Ugly Tyrone; in other 

words, the "L" sign was not a gang sign. Further, 

contrary to defendant's assertions, defendant's posing in 

photos or murals with certain individuals does not, by 

itself, "link [defendant] with the murders" of "Ugly"

Tyrone and Smith. Defendant's claim that the grand 

jury presentation was prejudicial or lacking in 

relevance is without merit. 

We discern no error and no abuse of discretion that would require reversal. 

For the reasons provided by Judge Young, it is clear that the State's conduct was 

not "extreme" and did not "clearly infringe[] upon the [grand] jury's decisionmaking function." Bell, 241 N.J. at 560 (alterations in original) (quoting 

Murphy, 110 N.J. at 35). 

To the extent we have not addressed any of defendant's remaining 

arguments, we conclude they are without sufficient merit to warrant discussion 

in a written opinion. See R. 2:11-3(e)(2).

Affirmed.