Monday, September 26, 2016

The Escort Service, the Text Messages and First-Degree Murder

This post examines an opinion from the District Court of Appeals of Florida -- Fourth District Ho v. State, 2016 WL 4916840 (2016).  
[a]ppellant Jimmy Ho was convicted of kidnapping and first degree murder with a firearm and sentenced to consecutive life terms. We affirm without further discussion the lower court's sentencing of Appellant, as well as its rulings denying Appellant's motions for judgment of acquittal. We write solely to address Appellant's challenge as to whether the trial court properly denied his motion to suppress statements made to the police during a `knock and talk.’. . .
Ho v. State, supra.
The Court of Appeal went on to explain how, and why, the prosecution arose:
The victim in this case was a young woman who ran an escort service from her home. One afternoon, while with a client, the victim sent a text message to her boyfriend saying the client was acting strangely and she was scared. Later that night, the victim failed to call her boyfriend as usual. Subsequently, the victim was found in her bedroom barely alive (she later died), shot twice with severe wounds on her neck and torso.

Responding detectives interviewed the victim's boyfriend. They looked at the text messages on his phone regarding the encounter the victim had with a client, and obtained the victim's cell phone number. Then, they subpoenaed the telephone company for the victim's telephone records, at which point they learned that the victim exchanged several calls the afternoon of the shooting with another number. Using the police department's computer records, detectives learned that the other number was Appellant's. From the records, they also learned his address.

At about 3:00 a.m. the day after the homicide, a team of about ten armed police officers and a canine unit surrounded Appellant's home. According to the testimony of one of the arresting detectives, he and another detective knocked on the door. One detective did not have a gun drawn, but the other did at the low ready position—pointed towards the ground.

After the detectives knocked, Appellant answered the door. His girlfriend was behind him. The detectives informed Appellant that they were investigating a shooting, and that they had some questions. Appellant immediately began volunteering statements like `it was self-defense’ and `my life is ruined.’ Based on these statements, officers arrested Appellant and commenced a pat down search for weapons.
Ho v. State, supra.
You can, if you are interested, read more about the facts in this case in the news stories you can find here, here and here.  This story explains that Ho was, at the time, a police officer with the Florida Atlantic University police force.
The court went on to point out that
[a]ppellant's version of the story is much different—that when Appellant answered the door, officers had their guns drawn pointing at him. He was immediately ordered out of the house with his hands raised and then frisked for weapons. Then, he was questioned. At that point, he made his incriminating statements.

The trial court weighed the evidence and found the officers' testimony more credible than Appellant's. The court accordingly denied Appellant's motion to suppress, finding that he had voluntarily consented to the search and seizure (by making the incriminating statements) during the knock and talk.
Ho v. State, supra.
The Court of Appeals then articulated the standard it used in analyzing an appeal, noting that
[i]n reviewing a trial court's determination as to a motion to suppress, this Court defers to the trial court's factual findings and reviews any legal conclusions de novo. Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003). The trial court's findings of fact must be supported by competent and substantial evidence. Pagan v. State, 830 So.2d 792, 806 (Florida Supreme Court 2002). They are `clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.’ Terry v. State, 668 So.2d 954, 958 (Florida Supreme Court 1996).

A knock and talk is a `purely consensual encounter’ that an officer may initiate without any objective level of suspicion. Hardin v. State, 18 So.3d 1246, 1247 (Fla. 2d DCA 2009) (citing State v. Triana, 979 So.2d 1039, 1043 (Fla. 3d DCA 2008)). Defendants have no constitutional safeguards during such encounters. Popple v. State, 626 So.2d 185, 186 (Florida Supreme Court1993). `The key to the legitimacy of the knock-and-talk technique . . . is the absence of coercive police conduct. . . . [T]he police should not “deploy overbearing tactics that essentially force the individual out of the home.”’ Luna–Martinez v. State, 984 So.2d 592, 598–99 (Fla. 2d DCA 2008) (quoting United States v. Thomas, 430 F.3d 274, 277 (U.S. Court of Appeals for the 6th Circuit 2005)).
Ho v. State, supra.
It went on to explain that the
trial court conducted a `totality of the circumstances’ review and properly considered the fact that the victim had been shot; that Appellant was possibly tied to the victim, if not the shooting; and that the officers reasonably believed Appellant was a police officer (he was actually a security guard/former police officer) who would thus possess a weapon. These factors supported the presence of a number of armed officers at the scene. By virtue of his law enforcement experience, Appellant would have been well aware that any police visit to his home would likely have extra security given the possibility that he was armed and trained himself.

The trial court found the testimony of the law enforcement officers more credible than Appellant's with respect to the 3:00 a.m. encounter. The trial court noted that Appellant's girlfriend witnessed the confrontation and disagreed with Appellant's claim that the officers had their weapons drawn and raised at Appellant when he opened his apartment door. Under the facts as found by the trial court, Appellant came to the door and saw multiple officers, but did not see weapons drawn and pointed at him.

Accordingly, the trial court's conclusion that Appellant made his incriminating statements prior to his actual seizure is supported by the record. See G.M. v. State, 19 So.3d 973, 978 (Fla.2009) (holding that a totality of the circumstances review applies to determining whether police conduct constitutes a seizure); State v. Ojeda, 147 So.3d 53, 57 (Fla. 3d DCA 2014) (noting the factors to be considered in a `totality of the circumstances’ determination as to whether consent to a search was `freely and voluntarily given’); Triana, 979 So.2d at 1044–45.

Appellant's incriminating statements (made before he was actually asked any questions) were uncoerced and voluntary. The evidence considered by the trial court, including the testimony of the detectives that the trial court determined to be more credible than that of Appellant's, supports the trial court's decision to deny the motion to suppress.
Ho v. State, supra.
The court then ended the opinion with the following:
[w]e affirm the trial court's ruling denying Appellant's motion to suppress. The trial court properly found that the initial knock and talk was not an arrest and that Appellant was not coerced by police action to speak with the officers, and thus Appellant's incriminating statements were freely given.

Because the record further supports the trial court's decision to deny Appellant's motions for judgment of acquittal with respect to both the first degree murder and the kidnapping charges, as well as the sentence imposed, we affirm.
Ho v. State, supra.

Friday, September 23, 2016

“Moose,” Defamation and the Statute of Limitations

This post examines a recent opinion from the Superior Courtof New Jersey – Appellate Division: Roberts v. Mintz, 2016 WL 3981128 (2016) (per curiam). The court begins the opinion by explaining that
[p]laintiffs Donna Roberts and Dawn Abrams appeal from the summary judgment dismissal of their defamation complaint, the award of sanctions against them and their attorney, and the denial of their cross-motion for summary judgment and injunctive relief. Defendant Clifford S. Mintz cross-appeals from the sanctions award.
Roberts v. Mintz, supra.
The Superior Court went on to explain how, and why, the litigation arose:
We discern the following facts from the record, viewed in the light most favorable to plaintiffs as the non-movants.  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (Supreme Court of New Jersey 1995). In August 2008, defendant bought what he believed was a purebred Havanese dog from plaintiffs. One of the plaintiffs had represented to defendant that the dog was a healthy, nine-month-old, purebred Havanese. After taking the dog home, defendant allegedly learned from veterinarians that the dog was actually two years old, was not a purebred Havanese, and suffered from various health problems. He named the dog `Moose.’

Later in August, defendant confronted plaintiffs with these findings, which they denied. Plaintiffs offered to refund his money in exchange for Moose, but defendant insisted on keeping Moose in addition to a refund. He claimed he had spent $800 in veterinary fees and had become fond of Moose. Plaintiffs refused.

Beginning in September 2008, defendant aired his dissatisfaction with plaintiffs in a series of posts on his personal blog titled `Rants and Raves,’ which appears on his personal website, His posts, in addition to relating his personal experience with plaintiffs, disclosed what he claimed to have learned about plaintiffs from other pet owners, pet activists, and public records. He also frequently referred to plaintiffs as `dog grifters,’ `scammers,’ `nefarious,’ and `amoral and unethical scumbags.’
Roberts v. Mintz, supra.
The court goes on to explain that
[w]e need not review at length defendant's posts, as plaintiffs' complaint is limited to six statements. The first two were made in a September 1, 2008 post, which described defendant's purchase and asserted that plaintiffs misrepresented Moose's age, breed, and health. Plaintiffs challenged the statement that `Dawn Abrams fraudulently sold [defendant] a dog named ‘Moose.’ The second alleged defamatory remark in this post was the statement, `we learned that Grace Abrams is a member of a notorious ring of South Jersey dog grifters run by her mother Donna Roberts who in 2007 was found guilty under [New Jersey] Statute 4:22–26L on three of five counts of animal cruelty.’ At the conclusion of this post, defendant wrote that his goal was to `shut down the operations run by’ plaintiffs.

In the `comments’ section at the bottom of this post, two people who identified themselves as `grace’ and `Donna Roberts”’ left comments denying the allegations about Moose and calling defendant a `liar’ and a `jerk.’ `Donna Roberts’ told defendant to `can your bullshit’ and claimed that defendant was `shoved up the ass’ of another of plaintiffs' critics, whom she called `the Hitler of the dog world’ who used `Nazi tactics.’ `Donna Roberts’ also stated that defendant suffered from “rage syndrome,” a behavioral condition that afflicts canines.

On February 27, 2009, in a post titled, `The Dark Underside of New Jersey Dog Breeders: Revisited,’ defendant wrote, `For the past year or so, I have been dealing with Donna Roberts, a so-called dog breeder who recently was convicted in New Jersey on three counts of animal cruelty.’ The next allegedly defamatory remark appeared in an April 7, 2010 post, in which defendant stated, `The Vincentown address is where Dawn Roberts lives in a run down farmhouse with 6 children.’ This is a reference to the house where defendant bought Moose.

Defendant ratcheted up the rhetoric in his next two posts. In an April 27, 2010 post titled, `The Dog Grifters: Donna Roberts and Dawn Abrams Strike Again,’ defendant wondered how `these despicable human beings’ `think that they can continue to get away with ripping people off . . .’ Plaintiffs challenge a section of the following sentence where defendant declares,`eventually we will be able to shut down their fraudulent puppy mill ring! To that end, please pass the information along that nobody ought to buy dogs from these grifters!’ The final post in this series was a May 3, 2010 entry titled, `Donna Roberts Responds: I am Innocent of All Charges—The Rest of the World is Guilty.’ Here he writes, `I frequently get messages from others, who, like me, were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them.’
Roberts v. Mintz, supra.
The Superior Court went on to explain that
[p]laintiffs filed their complaint on May 18, 2010.  On July 16, 2010, defendant filed a motion for summary judgment in lieu of an answer. The same day, defendant's counsel served on plaintiff's counsel a `safe harbor letter’ pursuant to Rule 1:4–8 demanding that plaintiffs withdraw their complaint.

Plaintiffs filed a cross-motion for summary judgment, although none of the papers filed in support of their cross-motion were provided to us. Plaintiffs also sought an order restraining defendant from defaming plaintiffs.

The court issued a written decision granting defendant's motion and denying plaintiff's cross-motion. The court found that the statements published before May 18, 2009 were time-barred, and rejected plaintiffs' argument that the statute of limitations was tolled because defendant committed a continuing wrong. The court found that defendant's remaining statements were opinions, epithets, and hyperbole, and were not sufficiently factual to be actionable.

The court also held that defendant's statements involved a matter of public concern, such that plaintiffs were required to prove actual malice. The court found plaintiffs had not met this burden, as there was enough evident truth to defendant's statements to preclude a finding of actual malice. To this end, the court largely credited the assertions in defendant's certification that Moose was in poor health, was two years old when defendant bought him, and was not a purebred Havanese.
Roberts v. Mintz, supra.
The opinion goes on to explain that on October 27, 2010, Mintz
filed a notice of motion for sanctions against plaintiffs' counsel pursuant to Rule1:4–8, and against plaintiffs pursuant to N.J.S.A. 2A:15–59.1. Although the notice of motion referenced a certification of counsel, the record does not include one. The appendix includes what appears to be a copy of defense counsel's bills, totaling $49,732.50 in fees for work performed between June 24, 2010 and October 25, 2010, at an hourly rate of $285. At oral argument on the sanctions motion, plaintiffs contended that the motion was not supported by a proper certification, the amount sought was excessive, and defendant was not entitled to fees incurred before he sent the July 16, 2010 safe harbor letter.

In a written opinion issued October 16, 2014, the court awarded defendant $25,000 in fees and costs. The court found plaintiffs' claims were frivolous under Rule 1:4–8 and N.J.S.A. 2A:15–59 .1 because the complaint `was filed without sufficient evidentiary support, several of the claims were beyond the statute of limitations, and it was not a good faith effort to reverse existing law.’ To find that the claims were frivolous, the court reiterated its reasons for granting summary judgment.

With respect to the amount of fees, the court found that defense counsel's hourly rate and billing entries were reasonable, but concluded it was “not fair or reasonable” to require plaintiffs to be responsible for that amount. The court reduced the fee award to $25,000, finding that that amount was `fair and reasonable’ based on `the time and labor required, the novel issue of the application of the statute of limitations to internet postings and the question of whether each posting is a separate event, and the results obtained. . . .’ The court's order made the plaintiffs and their counsel jointly liable.
Roberts v. Mintz, supra.
The Superior Court then explains what is at issue in the case, noting that the
plaintiffs argue that the case was not ripe for summary judgment, none of their claims were barred by the statute of limitations, and that defendant's statements were actionable, and were made with actual malice. Plaintiffs also contend they raised novel issues of law, and therefore defendant was not entitled to an award of fees. Plaintiffs also appeal from the denial of their request for a preliminary injunction and cross-motion for summary judgment. Defendant urges us to affirm summary judgment, but contends that the court abused its discretion in reducing the award of fees.
Roberts v. Mintz, supra.
The court then began its analysis of the arguments, and the issues, in the appeal, explaining initially that
[w]e first consider the summary judgment dismissal of plaintiffs' complaint. We review the grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330, 9 A.3d 882 (New Jersey Supreme Court 2010). We must determine whether the competent evidence presented, `when viewed in the light most favorable to the non-moving party, [is] sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.’ Brill, supra, 142 N.J. at 540, 666 A.2d 146. We also review the trial court's legal conclusions de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995); including whether the statute of limitations applies, Churchill v. State, 378 N.J.Super. 471, 478, 876 A.2d 311 (App. Div. 516, 529, 643 A.2d 972 (1994).
Roberts v. Mintz, supra.
The Superior Court went on to explain that
[a]t the outset, we reject plaintiffs' argument that summary judgment was premature. Our courts favor early consideration of summary judgment motions in defamation cases:

`On the one hand, in deciding whether to grant summary judgment, a court should proceed cautiously when presented with an incomplete record. On the other hand, a timely grant of summary judgment in a defamation action has the salutary effect of discouraging frivolous lawsuits that might chill the exercise of free speech on matters of public concern.’

[G.D. v. Kenny, 205 N.J. 275, 304–05, 15 A.3d 300 (2011) (internal citations omitted).]

A party claiming summary judgment is premature must ‘demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action.’ Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555, 107 A.3d 1281 (New Jersey Supreme Court 2015) (internal quotation marks and citation omitted); see also Trinity Church v. Lawson–Bell, 394 N.J.Super. 159, 166, 925 A.2d 720 (App.Div.2007) (party `must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete’). Plaintiffs have failed to do so.

Furthermore, by cross-moving for summary judgment, plaintiffs waived the incomplete-discovery argument. `The filing of a cross-motion for summary judgment generally limits the ability of the losing party to argue that an issue raises questions of fact, because the act of filing the cross-motion represents to the court the ripeness of the party's right to prevail as a matter of law.’ Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J.Super. 158, 177, 943 A.2d 881 (App.Div.), certif. denied, 196 N.J. 85, 951 A.2d 1038 (2008).
Roberts v. Mintz, supra.
The Superior Court then took up the issue of the statute of limitations, noting that
we agree with the trial court that plaintiffs' claims based on statements made before May 18, 2009 were time-barred. Actions for libel or slander must be commenced within one year of publication. N.J.S.A. 2A:14–3. We reject plaintiffs' argument that defendant engaged in a continuing pattern of defamation that tolled the statute until the last publication.

Plaintiffs rely on the `continuing violation’ doctrine, which provides that when a plaintiff `is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.’ Wilson v. Wal–Mart Stores, 158 N.J. 263, 272, 729 A.2d 1006 (1999). Our courts have never applied the continuing violation doctrine to defamation claims, and have only applied it to hostile work environment claims under the Law Against Discrimination, and continuing nuisance claims. See Shepherd v. Hunterdon Developmental Ctr.,174 N.J. 1, 18–22, 803 A.2d 611 (2002) (hostile work environment); Wreden v. Twp. of Lafayette, 436 N.J.Super.117, 125, 92 A.3d 681 (App. Div. 2014) (continuing nuisance). Courts in other jurisdictions have uniformly declined to apply the continuing violation doctrine to defamation. See Amobi v. D.C. Dep't of Corr., 755 F.3d 980, 994 (D.C. Cir. 2014) (applying D.C. law); McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 710 (10th Cir.2012) (applying Wyoming law); Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir.2002); Smith v. IMG Worldwide, Inc., 437 F.Supp.2d 297, 304–05 (E.D.Pa.2006); Card v. Pipes, 398 F.Supp.2d 1126, 1133 (D. Or. 2004); Lewis v. Gupta, 54 F.Supp.2d 611, 616 (E.D.Va.1999); Scott v. Zaheri, 157 So.3d 779, 786–87 (La.Ct.App.2014); Selkirk v. State, 249 A.D.2d 818, 671 N.Y.S.2d 824, 825 (App.Div.1998); Rosenbaum v. Chronicle Telegram, 2002 Ohio App. LEXIS 7189, at *13, 2002 WL 31890101 (Ohio Ct.App.2002).

We decline to extend the doctrine to defamation. A continuing tort by its nature `involves repeated conduct’ and occurs over a period of time; it cannot be distilled to one discrete act giving rise to the cause of action. Shepherd, supra, 174 N.J. at 19, 803 A.2d 611. A claim for defamation, by contrast, is based on a single act: the publication of a defamatory statement. The claim accrues `immediately upon the occurrence of the tortious act.’ Flowers, supra, 310 F.3d at 1126.
Roberts v. Mintz, supra.
The court went on to explain that,
[a]pplying the continuing tort doctrine in this case would also be at odds with the single publication rule, which provides that a statement posted on the internet is deemed to only be published once for purposes of the statute of limitations; the limitations period does not restart every time the post is viewed. Churchill, supra, 378 N.J.Super. at 479–83, 876 A.2d 311.

Furthermore, our Supreme Court is generally reluctant to relax the statute of limitations governing defamation. See NuWave Inv. Corp. v. Hyman Beck & Co., Inc., 221 N.J. 495, 500, 114 A.3d 738 (2015) (declining to apply discovery rule to defamation claim, holding the statute's `clear and unqualified language’ requires all libel claims to be made within one year of publication).

In sum, the court correctly dismissed as time-barred plaintiffs' defamation claims based on the three statements made in the September 1, 2008 and February 27, 2009 blog posts.
Roberts v. Mintz, supra.
The Superior Court then took up the “statements that are not time-barred,” explaining that
we conclude they were non-actionable opinion.4 There are three elements of a cause for defamation: `”(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher.”’ Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585, 969 A.2d 1097 (2009) (quoting DeAngelis v. Hill,180 N.J. 1, 13, 847 A.2d 1261 (2004)). `”To determine if a statement has a defamatory meaning, a court must consider three factors: ‘(1) the content, (2) the verifiability, and (3) the context of the challenged statement.”’ Ibid. (quoting DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261).

In considering verifiability, our courts have drawn a line between opinions, which are not actionable, and statements of fact, which are. `A statement's verifiability refers to whether it can be proved true or false.’ Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167, 735 A.2d 1129 (1999). A statement is actionable if it `”suggested specific factual assertions that could be proven true or false.”’  Leang, supra, 198 N.J. at 585, 969 A.2d 1097 (quoting DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261). Statements of opinion are usually not actionable, as opinions “ ‘are generally not capable of proof of truth or falsity because they reflect a person's state of mind[.]’ “ NuWave Inv. Corp. v. Hyman Beck & Co., 432 N.J.Super. 539, 553, 75 A.3d 1241 (App. Div. 2013) (quoting Ward, supra, 136 N.J. at 531, 643 A.2d 972) aff’d, 221 N.J. 495, 114 A.3d 738 (2015). But an opinion is actionable if `it implies ‘reasonably specific assertions' of “underlying objective facts that are false.”’ Ibid. (quoting Ward, supra, 136 N.J. at 531, 643 A.2d 972).

`Loose, figurative or hyperbolic language is not likely to imply specific facts’ and thus is generally not actionable. Lynch, supra, 161 N.J. at 167–68, 735 A.2d 1129. Similarly, `epithets, insults, name-calling, profanity and hyperbole’ are not actionable. DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261. `The higher the fact content of a statement,”the more likely it is actionable.”’ Lynch, supra, 161 N.J. at 168, 735 A.2d 1129. . . . 

Statements `falsely attributing criminality to an individual [are] defamatory as a matter of law.’ G.D., supra, 205 293, 15 A.3d 300 (internal citation omitted) (flyers referring to G.D. as a convicted drug dealer were defamatory); see also Lawrence v. Bauer Publ'g & Printing, 89 N.J. 451, 456, 459–60, 446 A.2d 469 (statement that two men might be charged with forgery was defamatory), cert. denied, 459 U.S. 999 (1982). Yet, this does not mean that using a word that is also the name of a crime necessarily accuses the person of committing that crime. Rather, the word must be considered in context, focusing on `the listener's reasonable interpretation’ of the statement. Leang, supra, 198 N.J. at 585, 969 A.2d 1097. Context includes `the identity of the speaker and the targeted audience[,]’ Senna v. Florimont, 196 N.J. 469, 492–93, 958 A.2d 427 (2008), or `the section of a newspaper in which an article appears,’ Lynch, supra, 161 N.J . at 168, 735 A.2d 1129 (internal citation omitted).
Roberts v. Mintz, supra.

The Court then began the process of outlining its “holding,” i.e., its decision, in the case:
Applying these principles, we consider first defendant's comment that Roberts lived in “a run down farm house” with six children. This merely conveys defendant's opinion of Roberts's home, and is therefore not actionable.

The two remaining statements present a closer issue. As noted, in the April 27, 2010 post, defendant called plaintiffs `grifters’ and their business a `fraudulent puppy mill ring.’ The May 3, 2010 post alleged that defendant “frequently” received messages from “others” who also `were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them.’

We recognize that words like `grifters,’ `scammed,’ and `fraudulent’ can be used to describe unscrupulous or deceptive business practices, and a `puppy mill’ is a facility where puppies are bred, usually in inhumane conditions. However, our concern is not the meaning of these words in isolation, but rather their meaning in the context in which defendant said them. Leang, supra, 198 N.J. at 585, 969 A.2d 1097. And three elements of context lead us to conclude that a reasonable reader would not take defendant's use of these words literally.
Roberts v. Mintz, supra.
The opinion goes on to explain that,
[f]irst, the words immediately surrounding these terms include sarcastic quips like `Despite a down economy, it appears that business for the dog grifting team of [Roberts and Abrams] is booming,’ and derisive insults such as `nefarious individuals,’ `despicable human beings,’ and `cronies.’ Second, defendant's invective grew more disparaging in response to comments left by readers claiming to be plaintiffs, which attacked defendant using incendiary language. The parties' exchange of insults suggests a reader would view defendant's words as barbs, hyperbole, and opinion—not fact.

Perhaps most importantly, defendant made these statements under the heading, `Rants and Raves,”’signaling to any reader that what followed were the author's personal viewpoints. See Summit Bank v. Rogers, 206 Cal.App.4th 669, 142 Cal.Rptr.3d 40, 60 (Court of Appeals 2012) (fact that statements appeared in section of website entitled `Rants and Raves”’ indicated a reader would `view them with a certain amount of skepticism’ and understand that `they will likely present one-sided viewpoints rather than assertions of provable facts’). That impression is reinforced by the fact that few of the blog posts included in this record are factual in nature. Given the profanity-laden, emotionally-charged context in which defendant used `grifters,’ `scammed,’ and `fraudulent puppy mill,’ a reader would not reasonably understand defendant as charging plaintiffs with a crime or fraud. Instead, a reasonable reader would interpret these statements as name-calling and hyperbole. See Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (stating that `even the most careless reader’ would have interpreted an accusation of `blackmail' in the context of public negotiations as `rhetorical hyperbole’).

Additionally, defendant did not assert specific, verifiable facts to support claims that plaintiffs operated a `fraudulent puppy mill’ or `scammed’ their customers. See Dice v. Johnson, 711 F.Supp.2d 340, 360–61 (M.D.Pa.2010) (accusation that someone was a `notorious puppy broker’ was not defamatory); NBC Subsidiary (KCNC–TV) v. Living Will Ctr., 879 P.2d 6, 12 (Colo.1994) (statement that company that sells living will forms is a `scam” was not defamatory because it did not imply `a verifiable fact’ nor could `it reasonably be understood as an assertion of actual fact’). In the absence of “underlying objective facts” that could be proven true or false, defendant's accusations are more accurately classified as opinoiins. See Ward, supra, 136 N.J. at 531, 643 A.2d 972.

In conclusion, the court properly dismissed plaintiffs' claims, as defendant's statements were non-actionable opinion, hyperbole, and epithets. Having concluded that plaintiffs' claims were properly dismissed on this ground, we need not address whether defendant's statements involved matters of public concern, imposing on plaintiffs the heightened burden to prove actual malice. Plaintiffs' arguments with respect to the denial of their request for a preliminary injunction and their cross-motion for summary judgment lack sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).
Roberts v. Mintz, supra.

Wednesday, September 21, 2016

The Cell Phone, Second-Degree Robbery and the Mugshot

This post examines a decision from the California Court of Appeals – Second District: People v. Estrada, 2016 WL 4729515 (2016).  The court begins by explaining that Jose Raul Estrada
appeals from a judgment entered after he pleaded no contest to receiving stolen property (California Penal Code, § 496, subd. (a)) and possession of methamphetamine (California Health & Safety Code, § 11377, subd. (a)), and a jury found him guilty of second degree robbery (California Penal Code § 211) and also found he used a handgun during the robbery (California Penal Code § 12022.5, subd. (a)). After finding a prior prison term enhancement allegation to be true (California Penal Code § 667.5, subd. (b)), the trial court sentenced him to eight years and eight months in prison.
People v. Estrada, supra.
On appeal, Estrada argued, among other things, that the trial court judge erred “in admitting into evidence his mugshot photograph from his current arrest and a detective's testimony regarding how law enforcement identified him as a suspect”. People v. Estrada, supra.
The Court of Appeals began the substantive part of its opinion by explaining that, in his appeal, Estrada argued that the trial court judge erred, among other things, “in admitting into evidence his mugshot photograph from his current arrest and a detective's testimony regarding how law enforcement identified him as a suspect”.  People v. Estrada, supra. It also went on to explain that
[a]n information charged Estrada with second degree robbery (count 1), receiving stolen property (count 2), and possession of methamphetamine (count 3). Before trial on the robbery count and the firearm use enhancement alleged in the information, Estrada pleaded no contest to counts 2 and 3. The trial court continued sentencing on counts 2 and 3 until after the trial.
People v. Estrada, supra.
The Court of Appeals went on to explain why, and how, the prosecution arose:
The robbery victim, Octavia Clemons, testified she was waiting at a bus stop in Pasadena about 6:30 a.m. on May 18, 2014, when a man (later identified as Estrada) stole her cell phone. Clemons identified Estrada in court at trial as the man who robbed her. She was not acquainted with Estrada prior to the robbery.

Clemons was using her cell phone when Estrada approached the bus stop on a bicycle. He stood face-to-face with her, straddling his bicycle, and asked to borrow her cell phone. She agreed, and he started providing a phone number for her to dial. After changing the digits of the phone number, he demanded, `Bitch, give me your phone or I am gonna blast you right here.’ He lifted his shirt, revealing what appeared to Clemons to be the black handle of a nine-millimeter handgun tucked into his waistband. Clemons had seen nine-millimeter handguns on other occasions prior to the date of this robbery. She felt afraid, believing Estrada would fire the gun. Estrada snatched the cell phone from her hand and ordered, `Don't fucking turn around or I am gonna fucking blast you, bitch.’ He left on his bicycle.

Clemons rode the bus for about five minutes to the next stop, then walked the half-mile to her home. She dialed 911 and provided a description of the man who had robbed her. The jury heard an audio recording of the 911 call. Officers responded to her home and interviewed her.

Later that day, Clemons requested that her wireless provider disconnect the service to the cell phone Estrada stole. She purchased a new cell phone and activated it, using the same phone number. `All night,’ she received calls on her new phone from people asking to speak with `Jose’ (Estrada's first name) or `Stalker’ (Estrada's admitted nickname). Clemons photographed the incoming call log on her new cell phone and provided the photos to the police.

In the evening after the robbery, Clemons accessed the social media Web site Facebook and was reviewing user profiles, when she observed a photograph of the man who had robbed her. She took `screen shots’ of the Facebook photographs and provided them to the police.
People v. Estrada, supra.
The opinion then explained how local police found and arrested Estrada:
Detective David Duran, the investigating officer on this case from the Pasadena Police Department, testified at trial that he conducted a `records check,’ using the name Jose and the birth date associated with the Facebook profile Clemons provided. The results of his search included photographs depicting the same person pictured in the Facebook photographs. Duran circulated a `wanted persons flier’ with Estrada's photograph and `his last known address.’ Officers arrested Estrada at that address on July 7, 2014.

Detective Duran interviewed Estrada on the day of his arrest, after Estrada waived his Miranda rights. Estrada told Duran he had used the nickname `Stalker.’ Duran asked if Estrada recognized one of the phone numbers from Clemons's incoming call log. Estrada identified the number as Alma Reyes's phone number. Reyes was present with Estrada when he was arrested.
People v. Estrada, supra.
At his trial, Estrada
presented an alibi defense through testimony from his former girlfriend/ mother of his son. She stated Estrada was sleeping in the room he rented in Highland Park around 6:30 a.m. on May 19, 2014 (the same time as the robbery), when she arrived to bring him food.
People v. Estrada, supra.
The opinion then outlines what else happened at Estrada’s trial and thereafter:
Prior to reaching a verdict, the jury submitted a question to the trial court, stating, `In the event that the jury reaches a verdict on one charge but cannot on another, what happens with the result of the case?’ The court responded, `Do your best to reach a verdict/decision on the charge and allegation. Do not be concerned with the procedure or what happens afterward.’ The jury also submitted a request for transcripts of Clemons's cross-examination and defense counsel's closing argument. The court provided a read-back of Clemons's cross-examination and informed the jury it would not hear a read-back of argument because that is not evidence.

The jury found Estrada guilty of second degree robbery and found true the enhancement allegation that Estrada personally used a handgun in the commission of the robbery (§ 12022.5, subd. (a)).

Estrada waived his right to jury trial on the prior prison term enhancement allegation set forth in the information, and the trial court found true that he had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Estrada to eight years and eight months in prison: the midterm of three years for robbery (count 1), plus a consecutive four-year term for the firearm use enhancement and a consecutive one-year term for the prior prison term enhancement; and a consecutive term of eight months (one-third the midterm) for receiving stolen property (count 2) after the pretrial no contest plea. On count 3 for possession of methamphetamine, to which Estrada also pleaded no contest, the court imposed a one-year concurrent term.
People v. Estrada, supra.
The Court of Appeals then took up Estrada’s argument concerning the admission of his “mugshot.” People v. Estrada, supra.  It explained that
[o]ver Estrada's Evidence Code section 352 objection, the trial court allowed the prosecution to introduce Estrada's `mugshot’ or booking photograph for purposes of depicting Estrada's appearance at the time of his arrest. Apparently his hair was longer by the time of trial, a point he conceded in making his objection. Estrada argued the photograph was `very prejudicial’ because (1) it was titled `mugshot,’ (2) he appeared to be `glowering and angry’ in the photograph, and (3) his overall appearance had not changed sufficiently by the time of trial to warrant the photo's introduction. The court overruled Estrada's objection (and later admitted the photograph into evidence), finding the evidence was more probative than prejudicial.

During direct examination, Detective Duran described the photograph as a `booking photograph of Mr. Estrada’ and testified the photograph accurately depicted Estrada's appearance on the date of his arrest in this case. We review the trial court's admission of evidence for abuse of discretion. (People v. Johnson, 61 Cal.4th 734, 767) California Court of Appeals – Fourth District 2015) [`The admission of photographs lies within the trial court's discretion and will not be disturbed absent an abuse of that discretion’].)
People v. Estrada, supra.
The court began its analysis of Estrada’s objection by explaining that he
contends the trial court abused its discretion in admitting the mugshot photograph into evidence because (1) it revealed he had a prior criminal record, (2) it removed the question of identity from the jury, (3) it was not relevant to any material issue at trial, and (4) it was cumulative because Clemons, the victim, already had identified Estrada as the robber before the prosecution introduced the photograph. We reject each of these arguments.

The mugshot photograph did not disclose Estrada's prior criminal record to the jury. As the trial court explained in overruling Estrada's objection to this evidence, `This is the booking photo from this case. I mean, they [the jurors] know he was arrested. He is here in court. He was arrested and charged.’ (Compare People v. Cook (1967) 252 Cal.App.2d 25, 29 [error to admit mugshot taken seven years before trial, indicating the defendant had a prior criminal record].)  Estrada notes there are three different identification numbers on the photograph (an `FCN,’ a `CII,’ and an `OCA’ number), but he does not explain how these numbers would have revealed his prior criminal record to the jury.

The fact the mugshot photograph identified Estrada by name does not mean it removed the question of Estrada's identity as the robber from the jury. The mugshot, coupled with Detective Duran's testimony, merely identified Estrada as the man arrested for the robbery of Clemons. It was for the jury to decide if Estrada, in fact, was the man who had committed the robbery.
People v. Estrada, supra.
The Court of Appeals went on to explain that the
mugshot photograph was relevant to the material issue of identity. Clemons provided the police with copies of photographs she had obtained from Facebook, depicting the man she claimed had robbed her. The purpose of the mugshot was to show the jurors Estrada's appearance at the time of his arrest so they could compare his appearance with that of the man in the Facebook photographs. Because Estrada's hair was longer at the time of trial, the mugshot presented a more accurate comparison. (See People v. Peralez (1971) 14 Cal. App. 3d 368, 377 [p]olice photograph of the defendant taken at the time of his arrest `was relevant to the identity of the [defendant] because of the change in his appearance between the time of booking and the time of trial’.)

Estrada asserts the mugshot photograph constituted cumulative evidence because the prosecution introduced the Facebook photographs and Clemons identified Estrada as the robber in court, before the prosecution introduced the mugshot. We disagree. The mugshot photograph was the only evidence depicting Estrada's appearance at the time of his arrest—less than two months after the crime—that the jury could compare to the Facebook photographs Clemons obtained the same day as the crime, and which she claimed depicted the robber. The trial occurred more than nine months after the crime, and Estrada's hair had grown longer.
People v. Estrada, supra.
The Court of Appeals then articulated its ruling on the issue of whether the trial court judge acted properly in admitting the mugshot:
The trial court acted within the bounds of its discretion in admitting into evidence the mugshot photograph. The probative value of the photograph—Estrada's appearance closer in time to the crime—was not `substantially outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (California Evidence Code § 352).  

Regardless of whether the trial court erred, we would not reverse Estrada's conviction because it is not reasonably probable the jury would have reached a result more favorable to him absent the mugshot photograph. (People v. Watson (1956) 46 Cal.2d 838, 836; People v. Carter (2005) 36 Cal.4th 1114, 1170-1171 [`Under the Watson standard, the erroneous admission of a photograph warrants reversal of a conviction only if the appellate court concludes that it is reasonably probable the jury would have reached a different result had the photograph been excluded’].)

Clemons unequivocally identified Estrada in court as the man who robbed her. Other substantial evidence corroborated her identification (e.g., the fact a woman who was present with Estrada at the time of his arrest made multiple calls to Clemons's cell phone number after Clemons reported her cell phone stolen). We have no reason to believe the jury based its true finding on the firearm use enhancement on its response to the mugshot rather than Clemons's testimony regarding her observation of a gun, as Estrada suggests.
People v. Estrada, supra.
For these and other reasons, the Court of Appeals held that the
judgment is modified to reflect the sentence the trial court imposed on count 3, possession of methamphetamine, a violation of Health and Safety Code section 11377, subdivision (a): a one-year concurrent term. In all other respects the judgment is affirmed. 

People v. Estrada, supra.
(If you're wondering whose mugshot is included with this post, it's Al Capone.)