                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2225-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WALI WILLIAMS, a/k/a WALI
ISHMAEL WILLIAMS, WAIL
WILLIAMS, TYRONE WILLIAMS,
TYRONE JOHNSON, TYRONE
THOMAS, TYRONE TELLER, and
TYRONE WATERMELON,

     Defendant-Appellant.
_______________________________

                    Submitted September 18, 2019 – Decided October 7, 2019

                    Before Judges Whipple and Gooden Brown.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 15-02-0462.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Susan Brody, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
            Hanley, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Wali Williams appeals from an August 9, 2017, judgment of

conviction after a jury found him guilty of first-degree conspiracy to commit

murder, N.J.S.A. 2C:5-2 and 2C:11-3(a). Defendant was sentenced to a twenty-

year term of imprisonment, subject to an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We

reverse because the jury instructions constituted plain error.

      In March 2014, Anthony Flowers found Kashira Stubbs's driver's license

on the ground of a convenience store. Flowers contacted Stubbs on Facebook

and offered to return her license for ten dollars. Stubbs agreed to meet Flowers

at the same store where the license was found and told defendant's brother of

her intentions.

      Anthony asked his brother, Damon Rogers, to meet Stubbs. When Rogers

arrived at the store, he encountered defendant, who identified himself as

Stubbs's brother. Rogers gave defendant the license, and defendant grabbed

Rogers by the jacket, asked why he stole Stubbs's license and punched him in

the face. Rogers punched back and was able to break free and retreat into the

store. Defendant followed Rogers, told him not to return and let him go.

                                                                        A-2225-17T1
                                        2
      Rogers went home to tell his brothers, Flowers and Quassim Fluker, what

had just happened. Flowers and Fluker immediately left to confront defendant.

As they approached the store, Fluker recognized defendant standing at the front

of a crowd of people. Flowers asked defendant why he had punched Rogers,

and defendant said it was because Rogers stole the license. Flowers punched

defendant, and, as they struggled, two men, one of whom was later identified as

Dennis Russell, stood in front of Fluker. Russell pulled out a handgun and

pointed it at Fluker. Fluker recalled defendant reach for his waistband but never

saw defendant remove a firearm.

      Shots rang out, and Fluker realized he was shot in the abdomen. Fluker

was able to run home, where he found Rogers. Fluker told Rogers to locate

Flowers, and Rogers found him lying on the ground near the store. Flowers was

pronounced dead later that night from two gunshot wounds.

      In February 2015, an Essex County grand jury returned an indictment

charging defendant, Laquan Dwight, and Russell with: first-degree conspiracy

to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a), second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).




                                                                         A-2225-17T1
                                       3
Defendant was individually charged with first-degree murder, N.J.S.A. 2C:11-

3(a)(1).

      A jury trial was held. During the jury charge, the trial judge gave the

following definition of conspiracy to commit murder:

            1.) That the defendant agreed with another person or
            persons that they or one or more of them would engage
            in conduct which constitutes the crime of murder; and,

            2.) That the defendant's purpose was to promote murder
            or facilitate the commission of the crime of murder.

The trial judge explained the jury could not find defendant guilty of conspiracy

unless:

            the state has . . . prove[n] beyond a reasonable doubt
            that when [defendant] agreed, it was his conscious
            object or purpose to promote it or make it easier to
            commit the crime of murder. . . . It also makes no
            difference what the person or persons with whom the
            defendant actually conspired had in mind, so long as the
            defendant believed that he was furthering the
            commission of the crime of murder.

      During jury deliberations, the foreperson submitted the following

clarification request: "Regarding conspiracy to commit murder, does this

include conspiracy when pertaining to someone conspiring to . . . do . . .

something else, i.e., conspiring to fight someone and murder is the final

outcome?"


                                                                        A-2225-17T1
                                       4
In response, the trial judge answered:

      Now, in the charge that you have in the jury room, . . .
      conspiracy to commit murder, it outlines certain
      elements. And the elements are—and the state must
      prove each beyond a reasonable doubt—(1) that the
      defendant agreed with another person or persons that
      they or one or more of them would engage in conduct
      which constitutes the crime of murder; and . . . (2) that
      the defendant's purpose was to promote or facilitate the
      commission of the crime of murder.

      So, the purpose of the conspiracy is to commit murder.
      The purpose of the conspiracy, it's insufficient if it's to
      promote a fistfight. So, the purpose, the object of the
      conspiracy is to commit murder.

      So, for . . . the defendant [] to be found guilty of
      conspiracy, the conspiracy charged in the indictment
      which is conspiracy to commit murder, the state has to
      prove beyond a reasonable doubt that when he agreed,
      it was his conscious object or purpose to promote or
      make it easier to commit the crime of murder. And that
      purpose can evolve during the course of the conspiracy.

      Now, in determining what the purpose was, . . . the
      nature of purpose or knowledge . . . with which
      defendant acted toward Anthony Flowers is a question
      of fact for you, the jury, to decide. . . . [P]urpose and
      knowledge are conditions of the mind which cannot be
      seen and can only be determined by inferences from
      conduct, words or acts.

      Further on, it is within your power to find that proof of
      purpose or knowledge has been furnished beyond a
      reasonable doubt by inferences that may arise from the
      nature of the acts and the surrounding circumstances.
      Such things as the place where the acts occurred, the

                                                                    A-2225-17T1
                                  5
           weapon used, the location, number and nature of
           wounds inflicted, and all that was done and said by
           defendant preceding, connected with, and immediately
           succeeding the events leading to the death of Anthony
           Flowers are among the circumstances to be considered.

           So you may consider any alleged involvement of
           [defendant] in a preceding fistfight in evaluating the
           facts and circumstances that you consider as to whether
           he was a member of a conspiracy to commit murder or
           that he had the requisite state of mind.

           [(Emphasis added).]

     Defendant did not object to the trial judge's supplemental instructions.

Thereafter, the jury acquitted defendant of the murder and weapons possession

charges but found him guilty of conspiracy to commit murder.

     On appeal, defendant raises the following issues:

           Point I
           REVERSAL IS REQUIRED BECAUSE THE TRIAL
           JUDGE'S ERRONEOUS RESPONSE TO THE
           JURY'S CONSPIRACY QUESTION WAS LIKELY
           TO HAVE COMPROMISED THE VERDICT AS TO
           THAT CHARGE. (Not Raised Below)

           Point II
           THE JUDGE'S CHARGE AND RECHARGE ON
           CONSPIRACY WERE MISLEADING AS TO THE
           PERMISSIBLE SCOPE OF THE ALLEGED
           CONSPIRACY, NECESSITATING REVERSAL.

           Point III
           THE TRIAL JUDGE ERRED IN CONSIDERING FOR
           SENTENCING PURPOSES DEFENDANT'S 2003

                                                                      A-2225-17T1
                                      6
             CONFESSION TO TWO HOMICIDES DESPITE THE
             SUBSEQUENT DISMISSAL OF THOSE CHARGES.

      Defendant argues the trial judge's inclusion of the phrase "And that

purpose can evolve during the course of the conspiracy" in response to the jury's

clarification request was erroneous and necessitates reversal of the jury's verdict.

In defendant's view, the jury was confused about whether they could find

defendant guilty of conspiracy to commit murder if he had only conspired to

engage in a fistfight but murder was the final result. The correct answer was

"no," which was how the trial judge initially responded. But, by seemingly using

the word "purpose" to refer to both the mental state defendant must have acted

with as well as the object of the conspiracy, defendant contends the trial judge

instructed the jury that the object of the conspiracy could "evolve" without a

contemporaneous finding of agreement among the co-conspirators. While we

cannot be sure how the jury interpreted the trial judge's supplemental instruction,

the risk that the jury convicted defendant of conspiracy to commit murder when

they only believed he conspired to instigate a fistfight is far too great to ignore.

For that reason, we reverse defendant's conviction and remand this case for a

new trial.

      "[A]ppropriate and proper charges are essential for a fair trial." State v.

Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613

                                                                            A-2225-17T1
                                         7
(2004)).   "The trial court must give 'a comprehensible explanation of the

questions that the jury must determine, including the law of the case applicable

to the facts that the jury may find.'" Id. at 159 (quoting State v. Green, 86 N.J.

281, 287-88 (1981)). "Thus, the court has an 'independent duty . . . to ensure

that the jurors receive accurate instructions on the law as it pertains to the facts

and issues of each case, irrespective of the particular language suggested by

either party.'" Ibid. (quoting Reddish, 181 N.J. at 613). "Because proper jury

instructions are essential to a fair trial, 'erroneous instructions on material points

are presumed to' possess the capacity to unfairly prejudice the defendant." Ibid.

(quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)). Therefore, "[e]rroneous

instructions are poor candidates for rehabilitation as harmless, and are ordinarily

presumed to be reversible error." State v. Afanador, 151 N.J. 41, 54 (1997)

(citation omitted).

      "The standard for assessing the soundness of a jury instruction is 'how and

in what sense, under the evidence before them, and the circumstances of the

trial, would ordinary . . . jurors understand the instructions as a whole.'" State

v. Savage, 172 N.J. 374, 387 (2002) (quoting Crego v. Carp, 295 N.J. Super.

565, 573 (App. Div. 1996)). "When a jury requests clarification, the trial judge

is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157


                                                                              A-2225-17T1
                                          8
(App. Div. 1984) (citing United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.

1979)). "So, too, when the jury's question is ambiguous, the judge is obliged to

clear the confusion by asking the jury the meaning of its request." State v.

Graham, 285 N.J. Super. 337, 342 (App. Div. 1995). Indeed,

            [a] question from a jury during its deliberations means
            that one or more jurors need help and that the matter is
            of sufficient importance that the jury is unable to
            continue its deliberations until the judge furnishes that
            help. An appropriate judicial response requires the
            judge to read the question with care to determine
            precisely what help is needed.

            [State v. Parsons, 270 N.J. Super. 213, 221 (App. Div.
            1994).]

      The Parsons court further explained:

            Jury questions present a glimpse into a jury's
            deliberative process. If a question discloses that the
            jury needs specific help in understanding issues it must
            decide, particularly issues related to the elements of the
            crime charged, and that help is not given, we will not
            speculate as to whether the verdict would have been
            different or the same had the help been given.

            [Id. at 224.]

      In a case where, as here, the State argues that the error is harmless because

the trial judge correctly instructed the jury in other components of the charge,

"[t]he test to be applied . . . is whether the charge as a whole is misleading, or

sets forth accurately and fairly the controlling principles of law."      State v.

                                                                           A-2225-17T1
                                        9
Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997) (alteration in original)

(quoting State v. Sette, 259 N.J. Super. 156, 190-91 (App. Div. 1992)). A jury

"charge must be read as a whole in determining whether there was any error."

State v. Torres, 183 N.J. 554, 564 (2005). Moreover, the effect of any error

must be considered "in light 'of the overall strength of the State's case.'" State

v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289

(2006)).

      When a defendant does not object to perceived error in the jury charge,

we review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016). "Under

that standard, we disregard any alleged error 'unless it is of such a nature as to

have been clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-

2). "Without an objection at the time a jury instruction is given, 'there is a

presumption that the charge was not error and was unlikely to prejudice the

defendant's case.'" State v. Montalvo, 229 N.J. 300, 320 (2017) (quoting State

v. Singleton, 211 N.J. 157, 182 (2012)). Plain error, in the context of an

allegedly improper jury charge, "requires demonstration of 'legal impropriety in

the charge prejudicially affecting the substantial rights of the defendant and

sufficiently grievous to justify notice by the reviewing court and to convince the




                                                                          A-2225-17T1
                                       10
court that of itself the error possessed a clear capacity to bring about an unjust

result.'" Id. at 321 (quoting Chapland, 187 N.J. at 289).

      An "agreement to commit a specific crime is at the heart" of the conspiracy

statute. State v. Samuels, 189 N.J. 236, 245 (2007). A conspiracy requires an

"actual agreement [with another] for the commission of the substantive crime[.]"

State v. Kamienski, 254 N.J. Super. 75, 93 (App. Div. 1992).              "[M]ere

knowledge, acquiescence, or approval of the substantive offense, without an

agreement to cooperate, is not enough to establish one as a participant in a

conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div. 1992).

Rather, the State must prove the defendant either agreed with another to engage

in criminal conduct or agreed to aid the other in planning or committing the

crime. N.J.S.A. 2C:5-2(a); see State v. Ball, 141 N.J. 142, 178 (1995) ("A

conspiracy conviction does not turn on 'doing the act, nor effecting the purpose

for which the conspiracy is formed, nor in attempting to do them, nor in inciting

others to do them, but in the forming of the scheme or agreement[.]'" (quoting

State v. Carbone, 10 N.J. 329, 337 (1952))). To be guilty of conspiracy, the

defendant must have acted with purpose, i.e., it was his or her "conscious object

to engage in conduct of that nature or cause such a result" or if he or she was

"aware of the existence of such circumstances or he [or] she believes or hopes


                                                                          A-2225-17T1
                                       11
that they exist." Model Jury Charges (Criminal), "Conspiracy (N.J.S.A. 2C:5-

2)" (rev. Apr. 12, 2010).

      When giving a conspiracy instruction, the trial judge must not conflate the

conspiracy's purpose, i.e., its objective, with the mens rea necessary to

consummate the conspiracy. The model jury instructions for conspiracy make

this necessary distinction by using the phrase "conspired to commit the crime"

when describing the conspiracy's aim and only using purpose to refer to the

defendant's mental state. Ibid. Here, the trial judge followed the model jury

instructions in providing the initial conspiracy instruction; however, his

deviation from the model instructions in response to the jury's question resulted

in plain error.

      The jury's question was, essentially, if defendant conspired to instigate a

fistfight, and a death resulted, was that a sufficient basis to find conspiracy to

commit murder? As a matter of law, the answer to the question is "no." A

conspiracy is complete the moment the parties agree to "engage in conduct

which constitutes [a] crime," N.J.S.A. 2C:5-2(a)(1). Thus, by definition, the

object of the conspiracy cannot change once agreed upon unless there is

evidence the members of the conspiracy agreed to commit a new crime and acted

with purpose to promote or facilitate the new crime.


                                                                          A-2225-17T1
                                       12
      Initially, the trial judge correctly answered the question, saying, "So, the

purpose of the conspiracy is to commit murder. . . . [I]t's insufficient if it's to

promote a fistfight. So, the purpose, the object of the conspiracy is to commit

murder." But, he continued, "the [S]tate has to prove beyond a reasonable doubt

that when he agreed, it was his conscious object or purpose to promote or make

it easier to commit the crime of murder. And that purpose can evolve during the

course of the conspiracy."

      Although we cannot know how the jury interpreted the trial judge's

answer, the jury could well have understood that a conspiracy's aim could evolve

without corresponding proof the parties agreed to carry out the new crime. In

other words, the jury could have found defendant only conspired to instigate a

fistfight but found him guilty of conspiracy to commit murder without finding

defendant agreed to commit murder and it was his conscious object to promote

or facilitate the murder.

      We recognize that the phrase at issue was but one vague or incorrect

statement in an otherwise correct jury instruction. However, we cannot ignore

the possibility that the jury convicted defendant of conspiracy upon an invalid

understanding of the law. See Montalvo, 229 N.J. at 324 ("Here, because the

jury instructions permitted the jurors to convict [the defendant] either upon a


                                                                           A-2225-17T1
                                       13
valid theory of guilt . . . or upon an invalid theory . . . and because we cannot

know upon which theory the jury found [the defendant] guilty, we find that the

jury instructions were clearly capable of producing an unjust result."). For that

reason, we reverse defendant's conviction and remand the matter for a new trial.

It is unnecessary to address defendant's remaining arguments.

      Reversed.




                                                                         A-2225-17T1
                                      14
