Opinion
DOCKET NO. A-6180-12T4
04-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VINCENT WILSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-10-01787. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Vincent Wilson appeals from a judgment of conviction for third-degree conspiracy to possess with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), following a jury trial. We reverse and remand for a new trial.
I.
We discern the following facts and procedural history from the record. Newark Police Detective Willie J. Thomas was on loan to the United States Drug Enforcement Administration (DEA) as an undercover officer. On September 23, 2010, Thomas and DEA agent Gregory Hilton took a confidential informant (CI), John, to a location in Newark where John was to make arrangements for Thomas to purchase two bricks of heroin from defendant. Other officers were assigned to the area to conduct surveillance of the transaction. Thomas wore a device that transmitted his conversations with defendant to the surveillance team and recorded the conversations.
Although the court granted defendant's motion to compel the disclosure of the identity of the State's confidential informant in this case, we use a fictitious name here.
A brick consists of fifty glassine envelopes of heroin.
Upon arrival at the scene, John exited Thomas's vehicle to make arrangements with defendant for the purchase. John was subsequently detained at the scene by Newark police officers who were unaware of Thomas's planned undercover operation. Thomas and another officer involved in the operation spoke to the Newark police officers and John was released.
John subsequently advised Thomas that defendant was waiting for them in a nearby courtyard. John and Thomas met with defendant, who asked Thomas "how many did [he] want?" Thomas said he wanted two bricks but defendant did not have them. Defendant stated that if he had known Thomas wanted two bricks, he would have gotten them ready. Defendant said he "probably [could] only get one brick."
Defendant placed a telephone call and walked out of the sight of Thomas, who understood that defendant was going to get the one brick of heroin defendant said he could "probably . . . muster up." Thomas heard defendant speak with a person he referred to as Nino on the telephone in what Thomas understood was an effort to obtain the heroin. Hilton observed defendant speak with a woman in the courtyard in what he perceived was an effort to obtain the heroin.
Thomas subsequently learned defendant was arrested by other Newark police officers in the area who were unaware of Thomas's undercover operation. Thomas signaled to Hilton that their operation that day had ended.
On September 28, 2010, John contacted defendant to arrange for Thomas to buy three bricks of heroin. After a series of telephone conversations between Thomas and defendant, they agreed upon a location and defendant told Thomas that he "would send somebody out with the three bricks." Defendant identified the person who would deliver the bricks as Rajohn.
Thomas went to the agreed-upon location and saw defendant and Rajohn walking together. Rajohn was later identified as Ernest Patillo. Patillo left defendant standing in a walkway, entered Thomas's car, and handed three bricks of heroin to Thomas, who gave Patillo $700. Patillo exited the vehicle, walked over to defendant, and gave defendant the money. Patillo testified during the trial that defendant asked him to deliver the package, which Patillo suspected contained illegal drugs, and that defendant paid him for doing so.
On October 15, 2010, Thomas made arrangements to purchase five bricks of heroin from defendant. After John advised defendant by telephone that they arrived at the location defendant had designated, an individual identified as Eli entered Thomas's vehicle, delivered five bricks of heroin, and Thomas gave Eli $1000. After Eli exited the vehicle, Thomas followed him and saw him give the money to defendant.
An Essex County Grand Jury returned an indictment charging defendant with second-degree conspiracy to possess and possess with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) (count one); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); two counts of third-degree distribution of a controlled dangerous substance within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (counts three and seven); two counts of second-degree distribution of a controlled dangerous substance within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (counts four and eight); first-degree being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count five); and first-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) (count six).
Count one of the indictment alleged that defendant, Patillo, and an "unindicted co-conspirator unknown to the grand jury" committed the crime of conspiracy "between on or about" September 28, 2010, and October 15, 2010. Prior to trial, the State moved to amend count one to allege that the conspiracy occurred between on or about September 23, 2010 and October 15, 2010. The State based the motion upon the contention that defendant's "interactions with the undercover [officer] did go back until [September] 23rd." Defendant consented to the amendment, and the court granted the State's motion to amend count one. In addition, count five of the indictment was dismissed by the court prior to defendant's trial.
Patillo was charged in counts one, two, three, and four of the indictment. Prior to defendant's trial, Patillo pled guilty to counts one and three, and agreed to testify against defendant.
The case was tried before a jury over the course of eight days. Prior to closing arguments, the court conducted a charge conference with counsel and reviewed the jury instructions that were distributed by the court.
After closing arguments, the court charged the jury. The court instructed the jury on the elements of the crime charged in count one in accordance with the Model Jury Charge on the crime of conspiracy. Upon completion of the court's instructions on count one and the remaining charges in the indictment, the jury commenced its deliberations.
Count one charged defendant with conspiracy to possess and possess with intent to distribute a controlled substance. In its initial charge to the jury on count one, the court instructed the jury that defendant was charged with conspiracy to possess a controlled dangerous substance with intent to distribute only and explained the elements of the offense of possession of a controlled dangerous substance with intent to distribute as part of its instructions on conspiracy. In its final recharge to the jury on count one, the court stated that defendant was charged under count one with conspiracy to possess and possess with intent to distribute a controlled dangerous substance but did not detail the elements of either the crime of possession or possession with intent to distribute a controlled dangerous substance.
The jury subsequently sent a note to the court asking the following: "Does Count 1 conspiracy require that conspiracy to distribute CDS heroin on all three days, 23rd, 28th, 15th, or can we rule on evidence for conspiracy on 9/23 and not rule based on 28th and/or 15th?" The State requested that the court instruct the jury that a guilty verdict could be based upon a finding defendant committed the crime of conspiracy on any one of the dates alleged in the indictment. Defense counsel contended that there could not have been a conspiracy on September 23, 2010, because there was no transaction completed on that date involving delivery of heroin by a third party. Defense counsel argued that "[y]ou cannot conspire with a buyer" and that any discussions between defendant and Thomas as the buyer could not support a finding of a conspiracy.
The State argued there was evidence showing that on September 23, 2010, defendant spoke to a woman in the courtyard and separately with someone named Nino on the telephone for the purpose of obtaining the heroin Thomas had requested, and that those discussions demonstrated defendant conspired with others to provide heroin to Thomas. The State also argued the evidence demonstrated that defendant spoke to John and that the jury could find that "the co-conspirator might be even the CI." The court disagreed, declaring that "you cannot as a matter of law . . . conspire with a CI."
The court limited its response to the jury to the question it had posed. The court instructed the jury that the dates alleged in count one should be considered in the "disjunctive" and that,
if [the jury] find[s] beyond a reasonable doubt that [defendant] entered into a conspiracy or agreement with one or more persons on any date between [September] 23rd and [October] 15, consistent with the instructions [previously given], that is sufficient for [c]ount [one]. Whether [defendant] was or was not conspiring with someone on the 28th, or may or may not be conspiring with someone on the 15th, may go towards the application of co-conspirator liability. That's a separate question you did not ask.
So to answer your question, it's on [the] 23rd, 28th or the 15th. It's disjunctive, okay, any person or persons.
. . . .
It's disjunctive. Any, it could be 23rd, 24th, 25th, 27th, 28th or the 15th. Okay.
After the jury returned to the jury room to continue its deliberations, defense counsel noted the court's declaration that a defendant could not be convicted of conspiring with a CI and requested that the court instruct the jury that there could be no conspiracy between defendant and either Thomas or the CI, John. The judge denied the request, stating that the jury had not asked about with whom it could find defendant conspired.
During the following day of deliberations, the jury sent a note to the court indicating that it reached a unanimous decision on each of the charges, and provided the court with its verdict sheet. The verdict sheet showed that the jury had found defendant guilty of conspiracy under count one and not guilty of the remaining charges. During a sidebar conference, counsel learned about the jury's verdict.
Defense counsel expressed a concern that the jury was under the impression that defendant could enter into a criminal conspiracy with the buyer of a controlled dangerous substance, "in this case, either the CI or the undercover detective," and requested a supplemental jury instruction. The judge agreed, finding that in the "interest of justice" the jury instructions required clarification. The judge then advised the jury,
I have received [the verdict sheet], and . . . observed the notations made [on it,] and before I accept the verdict I want to clarify that . . . as a matter of law . . . in order to be a member of a criminal conspiracy one must conspire with another individual who is not a government agent. So, therefore, [defendant] cannot conspire with [u]ndercover officer Thomas. [D]efendant cannot conspire with [John], the CI. Therefore, . . . I am not instructing you what to do, but . . . I'm going to return the [verdict sheet] to the foreperson, ask you to go into your deliberations, and if you want me to accept [the verdict sheet] I will do that, I just want[ed] to clarify that issue of law.
Based upon a request made by the State, the judge stated,
[I]f you find that [defendant] conspired with another person, whoever that other person is, other than the government agent, other than [John], other than Officer
Thomas, that is sufficient to return a verdict of guilty on conspiracy. That other person could be [Patillo], it could be Eli, it could be Nino, or whoever. But you have to find that that agreement existed with someone other than a government agent.
The jury continued its deliberations and subsequently sent a note to the court advising that it had reached a verdict on each of the counts, but did not disclose its verdicts. At that time, the State advised the court that it had performed legal research that revealed a defendant could be convicted of a conspiracy based upon an agreement with a government agent. Citing State v. Roldan, 314 N.J. Super. 173 (App. Div. 1998), and State v. Conway, 193 N.J. Super. 133 (App. Div.), certif. denied, 97 N.J. 650 (1984), the State argued that the court had misinformed the jury in its supplemental instruction.
The court reviewed the cases and agreed with the State. Over defendant's objection, the court provided the jury with a further supplemental instruction:
I gave you instructions before you went back to deliberate to the effect . . . [that] you heard what I told you about the government agents, and the ability of the government agents to be members of a conspiracy.
. . . I must supplement that before I receive any verdict from the . . . jury . . . Please be advised that . . . the old New Jersey criminal statutes required that . . . an agreement between two guilty co-conspirators to have a conspiracy consequently if one person with whom a
defendant conspired secretly intended not to follow through with their plan, neither party could be convicted because there was no agreement between two persons. The law has changed.
The new applicable criminal law of this state, however, recognizes unilateral conspiracies. According to the drafters of this amended statute the focus is on each individual's culpability rather than on the conspiratorial agreement.
The drafters of the revised, and presently applicable code noted that the problem arises in a number of contexts, where a person with whom the defendant conspired secretly intended not to go through with the plan.
In these cases it is generally held that neither party can be convicted because there was no, quote, agreement between the two persons.
Under the unilateral approach, which is the present approach now to the code, the culpable party's agreement was feigned. He has conspired within the meaning of the definition in the belief that the other party was with him. His culpability is not decreased by the other party's secret intention.
True enough, the project's chances of success have not been increased by the agreement, but the major basis of the conspiratorial liability, . . . the unequivocal evidence of a firm purpose to commit a crime remains the same.
Hence, and this is . . . from a case, a police agent's . . . purpose is not relevant to the issue of whether a conspirator . . . had a criminal purpose.
A defendant may be culpable even if the police agent was the only other participant in the conspiracy.
We conclude, accordingly, that undercover agents can be conspirators within the purpose of proving that a conspiracy existed. That's . . . the law that applies.
Also, there's the related doctrine regarding conspiracy . . . regarding an agreement to buy and sell.
The general rule that a simple agreement to buy drugs is . . . insufficient to establish a conspiracy between a seller and the buyer. The rationale of this general rule is that [where an] agreement between two parties is inevitably incident to the commission of the crime such as . . . the sale of contraband. A conspiracy, which assumes the voluntary . . . agreement of a person to a crime of such a character that is aggravated by the plurality of agents cannot be maintained.
However, when the evidence shows that two or more parties have entered into an agreement to engage in concerted criminal activity, which goes beyond the kind of simple agreement inevitably incident to the sale of contraband, and consequently makes possible the attainment of ends more complex than those which one criminal could accomplish, the participants may be found guilty of conspiracy.
With those additions, or that supplements to what I just told you, I'm directing you to return to deliberate. If you have a verdict, I'll accept your verdict. If you need to come back, let us know . . . .
Defense counsel requested a mistrial based upon the "myriad of problems" that occurred during the jury deliberations and the multiple jury charges. The court denied defendant's motion, stating that the curative instructions were clear and that the initial incorrect supplemental charge was based upon defendant's request. The court acknowledged that what had occurred was "awkward" but concluded that the jury was deliberating on correct instructions on the law.
As noted, defendant's request for the supplemental instruction that defendant could not be convicted of conspiring with a government agent was made in response to the court's declaration that a defendant could not be convicted of conspiracy under such circumstances. On appeal, defendant does not dispute that a person can be properly convicted of conspiring with a government agent. Roldan, supra, 314 N.J. Super. at 180-81.
After deliberating for approximately six minutes, the jury sent a note to the court indicating that it had completed its deliberations for the day and requested to "hear the additional directions at the beginning of the [following] day" and that the court "clarify the directions as well."
The following morning, the court granted defendant's request that it read count one of the indictment to the jury as part of the recharge on count one. The parties agreed the judge would recharge the jury on the crime of conspiracy, without charging the elements of the crimes of possession or possession with intent to distribute a controlled dangerous substance. It was also agreed that the court would then instruct the jury regarding unilateral conspiracies as defined in Roldan, advise the jury that a simple agreement between a buyer and seller of drugs did not support a guilty verdict on a conspiracy charge, and inform the jury of the factors to be considered in determining whether there was a simple agreement to sell a controlled dangerous substance, or one that went beyond an agreement inevitably attendant to the sale of a controlled dangerous substance thereby permitting a finding of guilt on the conspiracy charge.
The court then recharged the jury on conspiracy. The court concluded the recharge, stating,
So, if after consideration of all the evidence, you are convinced beyond a reasonable doubt that the state has proven each and every one of these elements, then you must find that the defendant is guilty of the crime of conspiracy. On the other hand, if you find that the State has failed to prove to your satisfaction beyond a reasonable doubt any one or more of these elements, then you must find the defendant not guilty of the crime of conspiracy.
With those instructions, you are to return to your deliberations . . . .
The jury continued its deliberations and less than a half-hour later advised the court that it had reached a verdict on each count. The jury found defendant guilty of conspiracy to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), under count one and not guilty of the charges in counts two, three, four, six, seven, and eight.
The jury left the court to continue its deliberations at 10:12 a.m. At 10:40 a.m. the court advised counsel that the jury had sent a note indicating it had reached verdicts on all counts. The record does not reflect when the note from the jury was sent to the court.
The court subsequently denied defendant's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The court granted defendant's motion that the court find that defendant's conviction under count one was for a third-degree crime because the jury did not make a factual determination regarding the weight of the controlled dangerous substances that were the subject of the conspiracy.
The court granted the State's motion for the imposition of an extended term sentence under N.J.S.A. 2C:44-3 and sentenced defendant on the third-degree conspiracy conviction to a ten-year custodial term with a five-year period of parole ineligibility. The court also imposed fines and penalties. Defendant appeals his conviction and sentence.
II.
On appeal, defendant raises the following arguments:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONTRADICTORY, ERRONEOUS, AND PREJUDICIAL INSTRUCTION ON THE LAW OF CONSPIRACY THAT RESULTED IN CONFUSION AND UNFAIR SURPRISE. (Partially Raised Below)
A. The Defendant Was Unfairly Surprised by the Supplemental and Contradictory Instruction Jurors Were Given on the Law of Conspiracy After They Reported that They had Reached a Verdict Based on Prior Instructions.
B. The Conspiracy Agreement Must Be for the Purpose of Furthering, not Frustrating, the Commission of the Crime.
C. The Trial Court Omitted Instructions on an Essential Element of the Crime. (Not Raised Below)
POINT II
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED. (Partially Raised Below)
POINT III
THE PROSECUTOR'S ARGUMENT THAT THE POLICE OFFICER TESTIFIED TRUTHFULLY BECAUSE HE WOULD NOT PUT HIS PENSION AT RISK FOR A DRUG DEALER WAS UNFAIRLY PREJUDICIAL. (Partially Raised Below)
POINT IV
THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE CONSPIRACY OFFENSE BEYOND A REASONABLE DOUBT.
POINT V
THE SENTENCE IS EXCESSIVE.
A. The Defendant Was Unfairly Sentenced to an Extended Term Based on N.J.S.A. 2C:44-3([a]).
B. The Trial Court Improperly Balanced the Aggravating and Mitigating Factors.
C. The Court Improperly Made Findings of Fact To Enhance the Sentence.
III.
We first address defendant's contention that the court's multiple instructions on the conspiracy charge, and the process during which they were given, deprived him of his due process right to a fair trial. "[A]ppropriate and proper charges [to a jury] 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 (2004)). A trial 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. (alteration in original) (quoting Reddish, supra, 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)).
Defendant argues that the court erred by providing supplemental instructions on the law of conspiracy after the jury indicated on two separate occasions it had reached a verdict on the charge. The State recognized the problems inherent in providing supplemental instructions to the jury after it reached a verdict. Following the court's receipt of the verdict sheet indicating that the jury had found defendant guilty of conspiracy, and its subsequent receipt of a note indicating the jury had reached a second undisclosed verdict, the assistant prosecutor expressed concerns "that [the jury] already had a verdict that was believed to be unanimous" and as to "how it's viewed by the jury, and perhaps the inappropriateness of having us see what the verdict is beforehand, it clearly shows a verdict of guilty on [c]ount [one], which we've instructed them in the previous note . . . where we said they can consider each date separately."
Although the court engaged in an earnest effort to provide the jury with accurate and complete instructions on the substantive elements of the crime of conspiracy, we are convinced the court erred by failing to declare a mistrial on count one after the jury indicated on two separate occasions that it had reached a unanimous verdict based upon instructions which the court and counsel acknowledged were incomplete and incorrect. "At the heart of jury deliberations is a joint or collective exchange of views among individual jurors. It is therefore necessary to structure a process and create an environment that fosters and preserves that exchange until the jury reaches a final determination." State v. Williams, 171 N.J. 151, 163 (2002) (citing State v. Corsaro, 107 N.J. 339, 349 (1987)).
In an analogous circumstance, the Supreme Court directed courts to instruct a jury to begin its deliberations anew when a juror is substituted during the course of deliberations. Id. at 170. There are, however, circumstances where "jury deliberations have proceeded too far to permit replacement of a deliberating juror," State v. Jenkins, 182 N.J. 112, 131 (2004), because of "the effect that the progress in deliberations will have on the reconstituted jury's ability truly to begin deliberations anew." State v. Valenzuela, 136 N.J. 458, 474-75 (1994).
In deciding whether to substitute a juror during deliberations, a court must determine whether "the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence." Corsaro, supra, 107 N.J. at 352. Under such circumstances, it can be properly concluded that the jury's mind is "closed or closing." Ibid. We have previously held that where the "totality of circumstances" indicate that it is "highly doubtful that the jury could have been expected to begin its deliberations anew," a defendant is deprived of his "right to a fair trial by an impartial jury." State v. Williams, 377 N.J. Super. 130, 150 (App. Div.), certif. denied, 185 N.J. 297 (2005).
Here, the jury reported on two separate occasions that it had reached final verdicts on each of the counts of the indictment, including count one. Moreover, the jury reported on the first occasion that it reached a verdict of guilty on count one, and the jury knew that the court, counsel, and defendant were aware of its verdict. Under those circumstances, we are convinced that prior to the court's final recharge on count one the jury had reached a point where "the die appear[ed] to have been cast," Jenkins, supra, 182 N.J. at 133, thereby rendering it "highly doubtful" that it could begin its deliberations anew on the court's final revised jury instruction on count one. Williams, supra, 377 N.J. Super. at 150. We are satisfied that where it would be unlikely that a reconstituted jury would begin its deliberations anew, it is less likely the jury would have done so here because on two occasions prior to the final recharge, the same twelve jurors reached a verdict on count one.
We need not decide whether a curative instruction directing the jury to begin its deliberations anew would have been sufficient here because the court did not give the instruction. --------
We are also satisfied that the court's recharge after the jury reached two separate verdicts on count one was "clearly capable of producing an unjust result." R. 2:10-2. The court's final charge on conspiracy went beyond a mere clarification of its prior charges and instead constituted a new charge with changed elements. The final recharge expanded the number of individuals with whom defendant could be found to have conspired to include Thomas, John, and other government agents, and included a new instruction limiting the types of agreements that could support a finding of an unlawful conspiracy.
Because the recharge required the jury to determine defendant's guilt based upon new and differently defined elements under count one, and the jury was aware that the court and counsel knew of its prior verdict of guilty, we are convinced that the high probability that the jury would not begin its deliberations anew was clearly capable of producing an unjust result. As the assistant prosecutor aptly stated prior to the final recharge, "in light of how we addressed it in front of the jury my concern, at this point, is that they felt their choice is incorrect, and may not have remembered the earlier testimony, and is now going to flip it just as arbitrarily as how we're indicating it . . . in front of them."
We are also convinced that the court's instructions were clearly capable of producing an unjust result for a separate but equally dispositive reason. The flurry of recharges was generated by the jury's inquiry as to whether defendant could be convicted of conspiracy based upon a finding that he committed the crime on only one of three dates alleged in the indictment, as amended prior to trial. The court's effort to address that inquiry resulted in the multiple conflicting and incorrect recharges, the final one of which included instructions that defendant should be convicted of conspiracy if the jury found that he committed the crime on any of the three dates alleged and conspired with Thomas, John, Eli, Patillo, or others. following the introduction of the evidence at trial.
We are convinced the judge's response to the jury's inquiry and its subsequent final recharge on conspiracy resulted in an impermissible risk that the jury returned a non-unanimous verdict. See State v. Bzura, 261 N.J. Super. 602, 615 (App. Div. 1993) ("To permit individual jurors to agree on a guilty verdict based on such different factual predicates would countenance a non-unanimous jury verdict . . . ."), certif. denied, 133 N.J. 443 (1993). The United States and New Jersey constitutions mandate that verdicts in criminal cases be unanimous. U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 9; R. 1:8-9. "General charges on unanimity are insufficient where there is the risk of jury confusion or a fragmented verdict." State v. Tindell, 417 N.J. Super. 530, 555 (App. Div. 2011) (citing State v. Gandhi, 201 N.J. 161, 193 (2008)).
Courts are required to provide "'specific unanimity' instructions — that is, impose a requirement that the jury unanimously agree on the facts underlying the guilty verdict — when there is a specific request for those instructions and where there exists a danger of a fragmented verdict." Gandhi, supra, 201 N.J. at 192 (quoting State v. Parker, 124 N.J. 628, 637 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992)). In the absence of a request for a specific unanimity charge, however, a court's failure to give the charge will not "necessarily constitute reversible error," id. at 193, unless the failure is "clearly capable of producing an unjust result." Parker, supra, 124 N.J. at 638.
"[T]he core question is, in light of the allegations made and the statute charged, whether the instructions as a whole [posed] a genuine risk that the jury [would be] confused." Gandhi, supra, 201 N.J. at 193 (second and third alterations in original) (quoting Parker, supra, 124 N.J. at 638). We are required to "examine two factors: whether the acts alleged are conceptually similar or are 'contradictory or only marginally related to each other,' and whether there is a 'tangible indication of jury confusion.'" Ibid. (quoting Parker, supra, 124 N.J. at 639).
In Gandhi, the Court rejected defendant's claim that a specific unanimity charge was required to support the elevation of his stalking conviction to a third-degree offense because it was unclear if the jury unanimously found the same prior no-contact order had been violated. Gandhi, supra, 201 N.J. at 191. The Court concluded there was no basis to find the jurors may have reached contradictory findings as to which no-contact order was violated "[b]ecause each [of the orders] was related to previous orders, with no break in time when defendant was not subject to a no-contact order during the period charged in the offenses, [and] there was no risk of a fragmented verdict." Id. at 193. The Court was also satisfied that there was no jury confusion as to which no-contact order provided the basis for the separate stalking offenses because the State, defense counsel, and the court's closing instructions made clear the evidence the jury was to consider for each charge and "the jury never sought clarification or otherwise expressed uncertainty regarding the execution of its fact-finding duties." Id. at 193-94.
Here, the evidence showed that defendant interacted with Thomas and John on three separate occasions and, based upon the court's final instruction, the jury may have determined that defendant conspired with either or both of them on one or more of those occasions. It also showed that defendant may have also conspired with the woman in the courtyard or Nino or both to obtain heroin on September 23, 2010; may have conspired with Patillo on September 28, 2010; and may have conspired with Eli on October 15, 2010. As a result, the jury was presented with a myriad of separate and distinct factual bases upon which it was required to determine defendant's guilt on the conspiracy charge.
In addition, there is evidence the jury was confused because it asked in the first instance whether it could determine defendant's guilt based upon his actions during only one of the incidents. The court responded by stating that defendant could be found guilty based upon his conduct on any date, but did not instruct the jurors that they had to unanimously agree on the incident providing the basis for a guilty verdict.
In our view, the combination of the court's instruction that defendant could be found guilty of conspiracy based upon his actions on any one or more of the three dates, and its belated final instruction that defendant could be found guilty of conspiring with Thomas, John, the woman, Nino, Eli, Patillo, someone else, or a combination of them created an impermissible ambiguity as to whether the jury was required to unanimously agree that defendant made an unlawful agreement on the same date with the same co-conspirator.
We are convinced the ambiguity, and the opportunity it created for a fragmented jury verdict was not resolved by the judge's final instruction because he did not address the possibility that the jurors might find the defendant guilty of committing the crime without unanimity as to the incident which constituted the commission of the crime and those with whom he conspired. Although defendant did not request a specific unanimity charge, we are satisfied that under the circumstances presented the court's failure to provide a specific unanimity charge was clearly capable of producing an unjust result.
Because we reverse defendant's conviction based upon the court's instructions to the jury, it is unnecessary to address defendant's remaining arguments other than to note that defendant's contention that there was insufficient evidence to sustain his conviction for conspiracy is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION