On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication April 7, 1995.
Before Judges Shebell, Skillman and Kleiner. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
On November 19, 1992, defendant, Roosevelt Grey, and codefendant, Marvin Jenkins, were charged in Essex County Indictment No. 1-3958-11-92 with second degree conspiracy to commit arson, (N.J.S.A. 2C:5-2 and 2C:17-1) (count one); second degree aggravated arson, (N.J.S.A. 2C:17-1a) (count two); three counts of murder, (N.J.S.A. 2C:11-3a(1) and (2)) (counts three, five and seven); three counts of felony murder, (N.J.S.A. 2C:11-3a(3)) (counts four, six and eight); and third degree terroristic threats, (N.J.S.A. 2C:12-3) (count nine). Defendant was tried separately before a jury, and on October 4, 1993, was found guilty on counts one, four, six and eight, and not guilty on counts two, three, five, seven and nine. Defendant moved to set aside his three felony murder convictions on the ground that the verdict was inconsistent as the jury had found him not guilty of the predicate crime of aggravated arson, and therefore a necessary element of felony murder was negated.
Defendant's motion was denied, and he was sentenced to forty-five (45) years imprisonment with thirty (35) years of parole ineligibility on count four. Count one was merged into count four. On counts six and eight defendant was sentenced to thirty years, to run concurrent with each other and concurrent with count four.
In his brief on appeal, defendant raises the following legal arguments:
POINT I: THE TRIAL COURT ERRED IN REFUSING TO VACATE THE JURY'S GUILTY VERDICT ON THREE COUNTS OF FELONY MURDER.
POINT II: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant gave a statement to the police which was reduced to writing. He stated that he was selling drugs for Marvin Jenkins, who supplied him with four hundred dollars worth of drugs, which defendant stashed behind a tree. Jessie Bellinger had been present when he stashed the drugs. Defendant left the stash to make a big sale," and when he came back, Jessie and the stash were gone. Defendant went searching for Jessie, and ran into Jenkins, who told defendant to look for Jessie at his mother's house, and to tell him, "to bring his ass out there before he [Jenkins] burns the house down." Jessie was not home so defendant gave the message to Jessie's sister. Defendant then met with Jenkins and told him what happened. Jenkins replied that, "he was going to get the m[- ] f[- ], I'll catch him. This wasn't the first time he did this to me."
After midnight, on April 1, 1992, Jenkins told defendant that Jessie was staying in an abandoned house. Jenkins went to a gas station and got a can of gas. The two went behind the house, where Jenkins took the gas can from his truck and told defendant "to watch out, make sure nobody comes into the lot, in the back of the house." Jenkins removed wood that was covering an opening and entered the house for about seven minutes, while defendant was "looking out." Jenkins came out rubbing his hands together, as if to wipe the odor of gas from them. Jenkins told defendant he would meet him later and "took off real fast" in his car. Defendant walked to his mother's house and was standing on the porch when he saw a "big clog of smoke" coming out of the abandoned house. Defendant then went inside and went to bed.
A captain of the Newark Fire Department testified that on April 1, 1992, at about 1:42 a.m., he was called to the burning house. As the fire-fighters entered, the captain smelled the heavy odor of gasoline and informed the crew to be careful. The fire was extremely heavy on the second and third floors and in the rear of the house. Flames were coming from every window. It took about two and a half hours to extinguish the fire. Three bodies, later identified as three homeless people, were found burned to death on the third floor. Jessie apparently was not in the house. The fire was determined to be arson.
The afternoon after the fire, defendant was arrested on an unrelated outstanding warrant, and served sixty (60) days in jail. Defendant stated that upon his release he met with Jenkins, who asked if he had said anything about the fire. Jenkins asked if defendant wanted to sell drugs for him again, and defendant declined.
An investigator of the Essex County Prosecutor's Office testified that during the investigation of the fire he learned that there were threats made against the Bellinger family. The family lived within two blocks of the fire. In October 1992, he learned that on the night of the fire someone named Akbar had come to the Bellinger home looking for Jessie. The investigator obtained a photograph of Akbar, also known as Roosevelt Grey. This began a search for defendant.
Defendant fled to New York when he found out that the police were looking for him. On October 7, 1992, he contacted the Newark authorities and wanted to know why they were looking for him. He asked to be picked up because he had no transportation. Defendant was brought to the Essex County Prosecutor's office. After being advised of his rights, he told the detectives that he was selling drugs for Jenkins, and that he was present as the "look out" when Jenkins set the fire. Defendant also said that he had gone to the Bellinger house and made threats to burn their house down because Jessie had stolen their drug stash.
Several witnesses testified at trial that defendant was with his girlfriend and her children during the hours the fire was set. Defendant's counsel argued that based on these witnesses' testimony, it could be seen that the inculpatory statement given by defendant resulted from duress.
Defendant argues on appeal that because conspiracy is not one of the enumerated crimes under the felony murder statute, N.J.S.A. 2C:11-3a(3), his convictions on the three counts of felony murder cannot stand. Defendant reasons that as a matter of law acquittal on the charge of aggravated arson vitiates an essential element of the felony murder charge. We reject this reasoning.
In Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), the court, in reviewing a verdict that convicted on one count of an indictment and acquitted on others, held that consistency in a verdict is not required, since each count is regarded as if it were a separate indictment. Id. at 393, 52 S. Ct. at 190, 76 L. Ed. 2d at 357. The Court stated:
The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real Conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.
That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by ...