On appeal from Superior Cour of New Jersey, Law Division, Essex County.
Fritz, Polow and Joelson. Fritz, P.J.A.D. (concurring).
Defendant was indicted with Thomas Eckert and Donna Ann Eckert for conspiracy to violate the narcotics laws. The indictment did not allege the existence of any unindicted or unnamed coconspirators. The three defendants were tried together. The jury found Thomas and Donna Ann Eckert not guilty, but found defendant guilty. Defendant then moved for a judgment of acquittal, contending that the acquittal of the two codefendants precluded the conviction of defendant. The trial judge granted that motion. This is the State's appeal of the judge's determination. We affirm.
If all but one of the named coconspirators are acquitted, a conviction of the remaining one cannot logically stand. State v. Furey , 128 N.J. Super. 12, 23 (App.Div.1974), certif. den. 65 N.J. 578 (1974); State v. Goldman , 95 N.J. Super. 50, 52 (App.Div.1967), certif. den. 50 N.J. 288 (1967); Annotation, "Prosecution or conviction of one party to alleged conspiracy as affected by disposition of case against other parties," 91 A.L.R. 2d 700, 705 (1963). One person cannot conspire with himself. State v. Carminati , 170 N.J. Super. 1, 15 (App.Div.1979). The cases in which a conviction of a sole defendant for conspiracy was allowed to stand involve situations where no disposition on the merits had been made of the charges against the other alleged coconspirators. State v. Louf , 126 N.J. Super. 321, 345 (App.Div.1973), aff'd in part, rev'd in part, 64 N.J. 172 (1973); State v. Furey, supra, State v. Goldman, supra. In Louf the reversal of the convictions of two alleged coconspirators on double jeopardy grounds was held to be not an acquittal on the merits and not inconsistent with their guilt. 126 N.J. Super. at 346.
In Furey there was an unindicted coconspirator named in the indictment who testified for the State under a grant of immunity. 128 N.J. Super. at 23. In Goldman it was held that since neither the guilt nor innocence of the alleged coconspirators was settled by a voluntary dismissal of the indictment against him before trial, "automatic exculpation" of the defendant was not called for. 95 N.J. Super. at 53.
The State relies on a line of cases which hold that consistency in verdicts is not required. Dunn v. United States , 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932); State v. Thrunk , 157 N.J. Super. 265 (App.Div.1978); State v. D'Arco , 153 N.J. Super. 258 (App.Div.1977); State v. Maddox , 153 N.J. Super. 201 (App.Div.1977); State v. Muniz , 150 N.J. Super. 436 (App.Div.1977), certif. den. 77 N.J. 473 (1978); State v. Lawrence , 142 N.J. Super. 208 (App.Div.1976); State v. Still , 112 N.J. Super. 368 (App.Div.1970), certif. den. 57 N.J. 600 (1971).
It is not necessary to analyze in detail each case regarding inconsistent verdicts relied on by the State. Suffice it to say that none of them involved a conviction in a conspiracy case by the same jury which found the other named coconspirators not guilty. If a jury finds that the State failed to prove beyond a reasonable doubt that Doe conspired with Roe, logic defies an explanation of how it can find proof beyond a reasonable doubt that Roe conspired with Doe. Conspirators must have a "shared objective." State v. Mazur , 158 N.J. Super. 89, 99 (App.Div.1978), certif. den. 78 N.J. 399 (1978).
We agree with our concurring colleague that the expressions of the New Jersey courts that the acquittal of all but one of the named coconspirators precludes a conviction of the remaining one constitute dicta. We also agree that we should nevertheless accept the good sense of this proposition in a case where, as here, it is directly in issue. Likewise we have no difference with him that it is unnecessary to consider an issue not presented by the case before us.
FRITZ, P.J.A.D. (concurring).
I am in total agreement with the proposition that an alleged conspirator cannot be convicted of that crime in a trial in which all other alleged conspirators have been cleared of the charge. Those are the ...