                        NOT FOR PUBLICATION WITHOUT THE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-2256-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

EARNST WILLIAMS, a/k/a
ERNEST WILLIAMS,

     Defendant-Appellant.
_____________________________
          Argued May 2, 2018 — Decided May 21, 2018

              Before Judges Fuentes, Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              13-03-0574.

              Brian P. Keenan, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Mark H. Friedman, Assistant Deputy Public
              Defender, of counsel and on the brief).

              Lucille M. Rosano, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Robert D. Laurino,
              Acting Essex County Prosecutor, attorney;
              Lucille M. Rosano, of counsel and on the
              brief).


PER CURIAM
      Defendant Earnst Williams appeals from his December 14, 2015

conviction for felony murder, N.J.S.A. 2C:11-3a(3), for which he

was   sentenced   to   fifty   years   in    prison   with   an   85%     parole

disqualifier and a five-year parole supervision term pursuant to

the No Early Release Act, N.J.S.A. 2C:43-7.2.                The State and

defendant agreed that the victim was shot and killed after meeting

defendant in an apartment building to buy oxycodone pills.                    The

State's theory was that defendant shot the victim during the course

of a robbery.     Defendant testified that he was intending to sell

the victim the drugs, but the victim tried to shoot defendant and

defendant wrested the victim's gun away and shot the victim in

self-defense.     We reverse because the trial judge did not allow

defendant   to    introduce    relevant     exculpatory   evidence      of    the

victim's prior drug purchases.

      Defendant was indicted for first-degree murder, N.J.S.A.

2C:11-3a(1) (count one); first-degree felony murder, N.J.S.A.

2C:11-3a(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1

(count three); second-degree conspiracy to rob, N.J.S.A. 2C:5-2

and 2C:15-1b (count four); second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5b (count five); second-degree possession

of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count

six); and third-degree conspiracy to violate the narcotics laws,

N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5, and N.J.S.A. 2C:35-10 (count


                                       2                                A-2256-15T3
seven).    Count four was dismissed prior to trial.   Defendant was

convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a

lesser included offense of murder in count one and convicted of

all other counts.    The judge merged all other convictions into

count two, felony murder.

      At trial, Craig1 testified that on July 22, 2015, Barry, a

22-year old Connecticut resident, contacted his friend John to ask

if he knew anyone selling oxycodone pills.       John put Barry in

touch with his next-door neighbor, defendant.    Barry, who planned

to drive from Connecticut with his friend Craig to buy the pills,

asked defendant if they could meet halfway, but defendant refused

and set up a meeting in Montclair.    Barry then asked to meet in a

"public place, like a grocery store," but defendant again declined,

setting up a meeting on a street in Montclair.

      When Barry and Craig arrived at the address, defendant entered

the car.     The two buyers asked to see the drugs.       Defendant

answered that the drugs were at his girlfriend's apartment.         He

also insisted that Barry bring all the money.    Barry took $900 and

walked into the building with defendant.   Craig heard two gunshots

coming from inside the house.

      Craig called Barry's cell phone number, and when he received

no answer, he "drove away frantically . . . hysterical, afraid for


1
    We use pseudonyms for the names of the victim and witnesses.
                                 3                          A-2256-15T3
[his] life."   Three witnesses testified that they saw defendant

and another man fitting Barry's description go inside the building

and then heard gunshots.

     On the same date, Rob, who drove a taxi for Montclair Yellow

Cab, "pick[ed] up a guy," who he identified as defendant, sometime

between 6:30 and 7:30 p.m., and took him to Newark.     Defendant's

cousin Rose initially testified that she could not remember what

happened.   After being confronted with her police statement, she

remembered that defendant came to her home in Newark by taxi at

about 7:30 p.m. and asked to use her telephone.      Defendant then

met with "about three or four" men outside.      She heard what she

"guess[ed] was [defendant's] voice" saying "I robbed him."

     Defendant's friend John,2 his daughter, defendant's brother,

and a friend drove to Newark and saw defendant sitting on his

cousin's stoop "with his head down."    Defendant stated that "shit

went wrong."   Defendant admitted to John that he was trying to rob

Barry and that defendant brought the gun to the scene, but he also

claimed that it was Barry "who reached to the gun," after they

began "tusseling" and "fighting."    He told John that "he shot down

on [Barry's] leg.   And then he shot him again."    He said he took

"some" money from Barry, tossed the gun away, and left the scene.


2
   John pled guilty to count seven, third-degree conspiracy to
distribute drugs, agreeing to testify against defendant in
exchange for a probationary sentence.
                                 4                          A-2256-15T3
     Footage from two businesses' security video cameras in the

area showed Craig's vehicle turning onto the street, and one showed

defendant   walking,   carrying    a       T-shirt.   Barry's   cell   phone

contained several text messages with defendant regarding the terms

of the sale and where the transaction would take place.                Barry

texted defendant "I'm not giving you the money up front, letting

you go back into the house.       I'll park on the street and you can

just bring them to the car.        I'll count them and give you the

cash."   He also texted defendant, "I don't need to come into the

house. . . . You got to understand, I'm not gonna go in the house

where I've never been without seeing all the pills first. . . .

You got to work with me.    Let me know I'm safe."

     Defendant spent the night after the killing at his cousin

Rose's home.   She had a conversation with defendant the next day

in which he stated he "did something in Montclair . . . [H]e robbed

a [Caucasian] man in Montclair and they got into a little scuffle

and that he shot him" twice, once in the leg and once in the head.

She stated that "he was supposed to meet up with a guy to make a

[drug] transaction," but that he had no drugs to sell and, instead,

intended to "rob him."   Rose then stated that during this account,

defendant took out $400 and counted it.

     Defendant testified at trial that, in preparation for the

drug sale, he had stashed oxycodone pills in a shoe that he left


                                       5                           A-2256-15T3
in the second floor hallway.    He walked up to the second floor

landing, put the pills in his pocket, and as he was "walking down,

[Barry] pull[ed] a gun out.    So I dove on [Barry]. . . . I bit

[him] . . . . I'm [in] fear for my life . . . . I know he got shot

. . . . I know he got hit again . . . . I never had total control."

He took the gun from Barry, ran from the building, but denied

taking any money from him.     He further denied that he had ever

planned to rob Barry.

     Defendant said he walked towards his mother's home, removed

his T-shirt, wrapped the gun in it, threw it away into a garbage

can, and later sold the drugs he was carrying for $500 to another

buyer.   He took a shower, went to Newark, met John, and told him

what happened.   The next day, his father came to pick him up, and

he turned himself in at the Essex County Prosecutor's Office.     He

admitted that he did not have a girlfriend at the address where

he arranged to sell the drugs, but chose that building because it

was quiet, the front door was always open, and he was "familiar

with the format."    He did not want to conduct the sale in the

local business areas because a "police station [is] right there,"

nor did he want to sell drugs in his own home.

     Barry died as a result of a gunshot wound to the head.       He

was also shot in the abdomen, and the bullets found in both wounds

were fired from the same .38 caliber pistol.     He was found with


                                 6                         A-2256-15T3
$500 in his pocket.      DNA testing confirmed that defendant bit

Barry's right forearm.    Barry had oxycodone in his blood.

     On appeal, defendant argues:

          POINT I: THE TRIAL COURT ERRED PREJUDICIALLY
          BY REFUSING TO ALLOW THE DEFENSE TO CROSS-
          EXAMINE [CRAIG] ABOUT HIS STATEMENTS TO THE
          POLICE REGARDING HIS AND [BARRY]'S PRIOR DRUG
          TRANSACTIONS   WITH   [JOHN]   AT   PALISADES
          [CENTER],   WHICH   WERE  RELEVANT   TO   AND
          SUPPORTIVE OF DEFENDANT'S SELF-DEFENSE CLAIM.

          POINT II: DEFENDANT'S SENTENCE IS MANIFESTLY
          EXCESSIVE AND UNDULY PUNITIVE.

     Defendant argues that Craig's statements concerning Barry's

prior drug purchases in a public place enhanced the evidence of

Barry's "security concerns" when purchasing drugs.        Defendant

points to Craig's admission to police that the two young men had

"very smoothly" purchased drugs about three times from John at

Palisades Center where, as here, Craig dropped off Barry and waited

for him in the car until Barry called.      Craig further told the

police that leading up to this trip, Barry tried to convince

defendant to meet him at Palisades Center, but when defendant

claimed he "didn't have a ride," Barry suggested a meeting in a

public place.    The text messages on Barry's phone substantiated

this evidence.

     The State responds that Barry's concern for conducting drug

transactions in public places does not mean that he carried a gun

to this transaction inside a private home.      We agree that the

                                 7                            A-2256-15T3
excluded evidence does not prove      Barry brought the gun; the

question is whether this evidence supports defendant's affirmative

defense.    Defendant testified that he had no intention of robbing

Barry, and that he planned to sell oxycodone pills.   Barry's state

of enhanced vigilance, stemming from the drug transaction out of

public view, was somewhat supportive of the defense that Barry

brought a gun to the sale.     The jury found defendant guilty of

aggravated manslaughter and not murder.     Thus the jury did not

find that the State proved the murder charge against defendant,

to wit, that defendant did not "knowingly" or "purposely" caused

Barry’s death.    See N.J.S.A. 2C:11-3a(1) or (2).

     The trial judge misapplied the heavy burden against admission

of the State's evidence under State v. Cofield, 127 N.J. 328, 338

(1992) and N.J.R.E. 404,    ruling that defense counsel could not

cross-examine Craig about a December 2011 transaction because

defendant had failed to present sufficient evidence to show the

meeting occurred or that it was similar to the July 22, 2012

incident.    The strict Cofield standard, however, is appropriate

only when the State seeks to introduce evidence of other crimes

against defendant.

     The "relaxed" standard for the admission of defense evidence

of prior criminal activity is set forth in State v. Weaver, 219

N.J. 131, 150 (2014).   The admissibility of other-crimes evidence


                                  8                        A-2256-15T3
used defensively is governed by Rule 401, and the standard is

"simple relevance to guilt or innocence."       Weaver, 219 N.J. at

150.    Evidence is relevant if it has "a tendency in reason to

prove or disprove any fact of consequence to the determination of

the action."    N.J.R.E. 401; State v. Williams, 190 N.J. 114, 122-

23 (2007).      "It is well established that a defendant may use

similar other-crimes evidence defensively if in reason it tends,

alone or with other evidence, to negate his guilt of the crime

charged against him."   State v. Garfole, 76 N.J. 445, 453 (1978);

State v. Cook, 179 N.J. 533, 566-67 (2004).

       If relevance is established, the court must undertake a Rule

403 analysis.    Weaver, 219 N.J. at 151.   "[T]he question . . . is

not relevance as such, but the degree of relevance balanced against

the counter considerations expressed in [N.J.R.E. 403] of undue

consumption of time, confusion of the issues and the misleading

of the jury."    Id. at 157 (quoting Garfole, 76 N.J. at 451).    The

State argues that the evidence would be confusing and misleading

and that Craig's "testimony would have also prejudiced the State's

case by 'muddying' the victim's character with unsubstantiated

allegations of violent behavior."     The jury heard evidence that

Barry had oxycodone in his system, and that he wanted to conduct

this drug transaction in a public place.    The additional evidence




                                  9                         A-2256-15T3
of a prior drug transaction occurring in a mall would not have

been unduly time-consuming, confusing or misleading.

     "Although     a    trial   court     retains   broad   discretion   in

determining the admissibility of evidence, that discretion is

abused when relevant evidence offered by the defense and necessary

for a fair trial is kept from the jury." State v. Stubblefield,

450 N.J. Super. 337, 348 (App. Div. 2017) (quoting State v. Cope,

224 N.J. 530, 554-55 (2016)).      The trial judge's ruling precluding

defense evidence was a clear error of judgment resulting in a

manifest denial of justice.        See State v. Morton, 155 N.J. 383,

454 (1998) (expressing the standard of review of an evidentiary

ruling).

     We    have   considered    whether    the   improper   preclusion   of

evidence sought to be admitted by the defense should be considered

harmless error.     R. 2:10-2.    In a murder case where the defendant

testifies and provides an alternate version of the facts, the

preclusion of evidence supporting the defense version is not likely

to be harmless.        "If there is a 'reasonable doubt as to whether

the error denied a fair trial and a fair decision on the merits,'

State v. Macon, 57 N.J. 325, 338 (1971), a new trial is required.

Because defendant objected at trial, the harmful error standard

applies. R. 2:10-2." State v. Bradshaw, 195 N.J. 493, 509 (2008).

We therefore reverse.


                                    10                            A-2256-15T3
     Because    we    reverse        defendant's    convictions,    we     need   not

address his sentence.          We do note, however, that the judge erred

in considering defendant's prior record of arrests as a juvenile

and adult as an important consideration.                 Our Supreme Court has

instructed    us     in   a   Pre-trial        Intervention    context     that   the

prosecutor may not consider an individual's history of arrests as

an indication of unlawful behavior.               State v. K.S., 220 N.J. 190,

199 (2015).        In the sentencing context, certainly defendant's

juvenile and adult arrests that did not result in convictions

should not have been considered as indicia of unlawful behavior.

Defendant    had    been      convicted    of    six   drug-related      disorderly

persons offenses, but had no juvenile adjudications of delinquency

or indictable criminal convictions.

     After     reviewing        in    detail     defendant's      arrest    record,

beginning in 2007 when he was a juvenile, the judge commented on

the severity and frequency of the charges.                    She said: "There is

an ample record of [defendant's] criminal activity prior to the

events in this matter.          He has a criminal history which includes

numerous arrests and was, by his own admission, a drug dealer by

trade."   When considering arrests for the purposes of sentencing,

even prior to K.S., they might be considered as an unsuccessful

deterrent to criminal activity, or for some other relevant purpose,

but "[t]he important limitation of course is that the sentencing


                                          11                                A-2256-15T3
judge shall not infer guilt as to any underlying charge with

respect to which the defendant does not admit his guilt."   State

v. Green, 62 N.J. 547, 571 (1973).

    Reversed and remanded for a new trial.     We do not retain

jurisdiction.




                              12                        A-2256-15T3
