On certification to the Superior Court, Appellate Division, whose opinion is reported at 281 N.J. Super. 2 (1995).
The opinion of the Court was delivered by O'hern, J. Chief Justice Poritz and Justices Handler and Stein join in Justice O'hern's opinion. Justice Coleman has filed an opinion Concurring in part and Dissenting in part in which Justices Pollock and Garibaldi join. Coleman, J., Dissenting in part and Concurring in part.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Roosevelt Grey (A-1-96)
Argued January 30, 1996 -- Reargued September 25, 1996 -- Decided December 11, 1996
O'HERN, J., writing for a majority of the Court.
The question in this case is whether a defendant may be convicted of felony murder even though acquitted of the underlying felony of aggravated arson.
Grey was a low-level drug dealer who worked in Newark with another dealer named Marvin Jenkins. After a dispute about stolen drugs, Jenkins used gasoline to start a fire in a boarded-up house. Jenkins and Grey erroneously thought the person who they suspected of stealing the drugs was in the house. Three homeless persons were killed in the fire. Grey later admitted to acting as a lookout for Jenkins as he started the fire.
Grey and Jenkins were charged with one count of second-degree conspiracy to commit aggravated arson; one count of second-degree aggravated arson; three counts of murder; three counts of felony murder; and one count of third-degree terroristic threats. They were tried separately.
The jury convicted Grey of second-degree conspiracy to commit aggravated arson and three counts of felony murder, but found him not guilty of murder, aggravated arson, or terroristic threats. Grey moved to set aside the felony murder verdicts, arguing that he could not be convicted of felony murder without being convicted of the predicate felony of aggravated arson. (Conspiracy to commit aggravated arson is not a basis for a conviction of felony murder.) The trial court denied the motion and sentenced Grey to forty-five years imprisonment with thirty years of parole ineligibility on the three felony murder counts.
The Appellate Division affirmed Grey's conviction and sentence, reasoning that consistent verdicts are not required. It found that a reasonable jury could have concluded that Grey had aided Jenkins in the arson and thus be responsible for the felony-murder as an accomplice, but nevertheless could have declined to convict Grey of aggravated arson due to compromise, mistake or leniency.
The Supreme Court granted Grey's petition for certification limited to the issue of inconsistent verdicts.
HELD: The unusual circumstances in the sequence and delivery of the instructions to the jury led the jury to predicate its conviction of felony murder on its conviction of conspiracy to commit aggravated arson, which is not permitted. The felony murder convictions cannot stand.
1. The Court agrees with the logic of federal decisions holding that inconsistent verdicts in criminal matters are permitted so long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt (the Dunn /Powell rule). Such a verdict does not necessarily indicate that the jury was unconvinced of Grey's guilt, but might be the result of leniency or nullification. (pp. 6-9)
2. The Dunn /Powell rule, however, applies only when the reason for the inconsistent verdicts cannot be determined and one must speculate as to whether the verdicts resulted from juror lenity, compromise, or mistake. There is virtually no uncertainty as to the cause for the inconsistent verdicts in this case. (pp. 9-10)
3. The jury charge here led the jury to erroneously believe that Grey could not be convicted of aggravated arson unless he set the fire himself (as opposed to being guilty as an accomplice). The charge also failed to instruct that conspiracy to commit aggravated arson could not suffice as the predicate felony to the felony-murder charge. Having acquitted Grey of the aggravated arson charge, the jury must have concluded that the conspiracy to commit aggravated arson would suffice as the predicate felony to the felony-murder charge. (pp. 10-14)
4. The jury might have convicted Grey as an accomplice to arson if properly charged, but the Court cannot substitute its interpretation of the verdict for the jury's. The jury simply did not convict Grey of arson. The sequence of events here leads to one Conclusion -- the jury undoubtedly relied on an improper predicate felony, and thus did not properly convict Grey. A verdict based on an improper predicate cannot stand. (pp. 15-16)
5. In felony-murder cases, courts should instruct juries that they may not convict a defendant of felony murder unless they convict defendant of the underlying offense (or an attempt to commit the offense) that is a predicate to the felony-murder conviction. The Court requests its Committee on Model Criminal Jury Charges to consider any required revisions of the Model Charge. (pp. 16-17)
Judgment of the Appellate Division upholding the conviction of three counts of felony murder is REVERSED. The matter is REMANDED for resentencing on the conviction of second-degree conspiracy to commit aggravated arson.
JUSTICE COLEMAN, Concurring in part and Dissenting in part, in which JUSTICES POLLOCK and GARIBALDI join, is of the view that to avoid the application of the Dunn /Powell rule, the majority speculates that the jury concluded the conspiracy conviction would suffice as the predicate felony to the felony-murder charge. The jury was properly instructed on accomplice liability, and there was credible evidence to support a finding that Grey was guilty as an accomplice of aggravated arson and felony murders beyond a reasonable doubt. Despite this overwhelming evidence, the jury found Grey not guilty of the predicate offense. The Conclusion is inescapable that the verdicts of not guilty of aggravated arson and guilty of felony murder are inconsistent. Inconsistent verdicts should be permitted unless the verdict is "irrationally inconsistent" -- that is, not reasonably supported by the evidence. Such is not the case here. He concurs with the majority's holding that in the future, trial courts should instruct juries in compound-felony cases that the jury must first convict on the predicate felony before convicting on the compound offense.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER and STEIN join in JUSTICE O'HERN'S opinion. JUSTICE COLEMAN has filed an opinion Concurring in part and Dissenting in part in which JUSTICES POLLOCK and GARIBALDI join.
The opinion of the Court was delivered by
The defendant has been convicted of second-degree conspiracy to commit aggravated arson. N.J.S.A. 2C:5-2; N.J.S.A. 2C:17-1a. The question is whether he may be convicted of felony murder even though acquitted of the underlying felony of aggravated arson. We find that unusual circumstances in the sequence and delivery of the instructions to the jury led the jury to predicate its conviction of felony murder on its conviction of conspiracy to commit aggravated arson. A conviction of felony murder, however, is not permitted on that basis. N.J.S.A. 2C:11-3a(3).
The case arises from a dispute over stolen drugs. From the record, the jury could have found the following facts. Roosevelt Grey (Grey) was a low-level drug dealer who worked in Newark for another Newark dealer named Marvin Jenkins (Jenkins). In late March, 1992, Jenkins supplied Grey with several hundred dollars worth of cocaine for Grey to sell. Grey hid the drugs prior to going out to make "a big sale." A bystander, Jessie Bellinger (Bellinger), saw Grey hide the cocaine.
When Grey returned to his hiding place, he found that the cocaine had disappeared and immediately suspected Bellinger of stealing the cocaine. While looking for Bellinger, Grey met Jenkins and told him that the drugs had disappeared and that he suspected Bellinger of stealing them. Jenkins told Grey to go to the home of Bellinger's mother and to bring Bellinger out of the house before Jenkins "burns the house down."
Bellinger was not there, but Grey threatened Bellinger's mother and sister that if Bellinger did not return the drugs Jenkins would "burn [him] out of [the house]." Grey returned to Jenkins and told him that he could not find Bellinger. Jenkins told Grey that this was not the first time Bellinger had stolen from him, and said that he would "catch" Bellinger.
The following afternoon Jenkins and Grey resumed their search for Bellinger. When they did not find him, the pair separated. At around midnight that night, Grey met Jenkins on the street. Jenkins told Grey that he believed Bellinger was staying at 19 Vanderpool Street, a nearby boarded-up house.
Jenkins then drove a short distance to a corner gas station. From the street, Grey watched Jenkins take a red container from the trunk of his car, fill it with gas, and then put it back in the trunk. Jenkins drove alone to the house in which Bellinger was supposedly staying and parked behind it. Grey joined Jenkins on foot. Jenkins took the container out of his trunk and told Grey to "watch out" and to make sure no one came into the lot behind the house. Jenkins entered the house, carrying the container that he had filled with gas.
Jenkins was in the house less than ten minutes. Grey remained in the lot keeping watch. Grey saw Jenkins leave the house, but he no longer had the container with him and was rubbing his hands together. Grey thought Jenkins was attempting to get the smell of gas off his hands. Jenkins told Grey that they would meet again later. Jenkins then left in his car.
Grey walked to his mother's house, which is located directly behind 19 Vanderpool Street. He stood on the porch and watched the other house for about three or four minutes until he saw a "big clog of smoke" coming from it. Grey then went to bed.
Newark firefighters, called to the burning house at about two that morning, detected the smell of gasoline upon entering the house. Before the firefighters were able to extinguish the fire, it had completely destroyed the rear parts of the house. They found the bodies of three homeless persons in the house. Investigators concluded that arson was the cause of the fire. Bellinger was not in the house during the fire.
Investigators subsequently learned that someone named "Akbar" had come to the Bellinger home on the night of the fire and had been looking for Bellinger. Six months after the fire, detectives began to search for Grey as being that person.
At first, Grey denied knowing anything about the fire. He later offered to disclose to the police what he knew in exchange for reward money. Grey was taken to the Essex County Prosecutor's Office Arson Unit in East Orange and advised of his Miranda rights. Grey told the police that he worked for Jenkins, that Jenkins had started the fire, and that he had served as a lookout during the fire.
In a later written statement, Grey admitted that prior to the fire he knew that Jenkins intended to set fire to the house. Grey said that Jenkins told him that Bellinger would be in the house. When asked why he acted as Jenkins's lookout, Grey responded that he "was a follower."
An Essex County grand jury charged Grey and Jenkins each with one count of second-degree conspiracy to commit aggravated arson (the burning of an occupied structure or building); one count of second-degree aggravated arson; three counts of murder; three counts of felony murder; and one count of third-degree terroristic threats.
Grey and Jenkins were tried separately. The jury convicted Grey of second-degree conspiracy to commit aggravated arson and three counts of felony murder, but found him not guilty of murder, second-degree aggravated arson, or third-degree terroristic threats.
Grey moved to set aside the felony-murder verdicts. He argued that the jury verdicts were inconsistent, because he was convicted of felony murder without being convicted of the predicate felony of aggravated arson. The State countered that the proof required for accomplice liability was essentially the same as that for the substantive crime of conspiracy to commit aggravated arson. Thus, the same conduct was required for conviction as either an accomplice or a coconspirator, thereby establishing the predicate for the felony murder convictions.
The State further argued that the inconsistent verdicts were the result of the jurors' confusion about the trial court's charge, which seemed to imply that Grey could be guilty of aggravated arson only if he acted as a principal, meaning that he alone or in concert with Jenkins actually set fire to the house. In any event, the State contended, New Jersey permits juries to hand down inconsistent verdicts.
The trial court denied Grey's motion. It sentenced Grey to concurrent terms of forty-five years of imprisonment with thirty years of parole ineligibility on the three felony murder counts. It merged the conspiracy conviction with the first felony murder conviction.
On appeal, the Appellate Division affirmed the conviction and sentence. The court reasoned that consistent verdicts are not required by New Jersey law. It found that a reasonable jury could have concluded that Grey had aided Jenkins in the commission of arson and thus be responsible for the felony-murder as an accomplice, but nevertheless could have declined to convict Grey of aggravated arson due to compromise, mistake, or lenity. State v. Grey, 281 N.J. Super. 2, 656 A.2d 437 (App. Div. 1995). We granted defendant's petition for certification, limited to the issue of inconsistent verdicts. 142 N.J. 452 (1995).
In Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), the government charged Dunn with (1) maintaining a nuisance for the sale of alcoholic beverages, (2) the unlawful possession of alcoholic beverages, and (3) the unlawful sale of alcoholic beverages. The jury acquitted Dunn of (2) and (3), but convicted him of (1). The Court held that the inconsistency in the verdicts did not necessarily indicate that the jury was unconvinced of the defendant's guilt, but that such a verdict might indicate only an exercise of leniency or nullification. Justice Holmes observed that "if separate indictments had been presented against the defendant . . . and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other." Id. at 393, 52 S. Ct. at 190, 76 L. Ed. at 359.
United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), reaffirmed this rule. In Powell the jury convicted the defendant of using a telephone to facilitate a conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute, but acquitted the defendant of conspiracy and possession charges. The defendant argued that the verdicts were inconsistent since she could not have facilitated either possession or a conspiracy to possess when she was acquitted on the underlying possession and conspiracy charges. The Supreme Court unanimously disagreed, saying that "it is equally possible that the jury, convinced of guilt, properly reached its Conclusion on the compound offense [the facilitating offense], and then through mistake, compromise, or lenity, arrived at an inconsistent Conclusion on the lesser offense [the conspiracy and possession offenses]." Id. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468.
The Dunn and Powell decisions are not binding on us but we agree with their logic. In State v. Ingenito, 87 N.J. 204, 432 A.2d 912 (1981), the Court observed that
the responsibility of the jury in [determining] . . . guilt or innocence, is so pronounced and preeminent that we accept inconsistent verdicts that accrue to the benefit of a defendant. Indeed, a jury has the prerogative of returning a verdict of innocence in the face of overwhelming evidence of guilt. It may also refuse to return a verdict in spite of the adequacy of the evidence. This is indicative of a belief that the jury in a criminal prosecution serves as the conscience of the community and the embodiment of the common sense and feelings reflective of society as a whole.
[ 87 N.J. at 211-12 (citations omitted).]
See also State v. Crisantos (Arriagas), 102 N.J. 265, 508 A.2d 167 (1986) (stating criminal jury may return illogical or inconsistent verdicts that would not be tolerated in civil trials). So long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt, such verdicts are normally permitted. State v. Petties, 139 N.J. 310, 654 A.2d 979 (1995). In State v. Kamienski, 254 N.J. Super. 75, 603 A.2d 78 (App. Div.), certif. denied, 130 N.J. 18 (1992), the court found that an acquittal of the charge of conspiracy to rob or to murder did not legally preclude a conviction for murder and felony murder. The court reasoned that a jury could find accomplice liability independent of whether a conspiracy existed. And in State v. Mangrella, 214 N.J. Super. 437, 519 A.2d 926 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987), the court invoked the provisions of the Code of Criminal Justice concerning the doctrine of lesser-included offenses. The court upheld a conviction for burglary despite an acquittal for the lesser-included offense of theft because the acquittal did not preclude finding all the elements necessary for a burglary conviction. *fn1
Defendant relies on State v. Peterson, 181 N.J. Super. 261, 437 A.2d 327 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982), which qualified the general rule of acceptance of inconsistent verdicts by stating that unless inconsistent verdicts preclude the establishment of an element of an offense, an acquittal does not affect the validity of a conviction supported by sufficient evidence. However, Peterson relied in part on the reasoning of United States v. Hannah, 584 F.2d 27 (3d Cir. 1978), which was later disapproved in Powell. In State v. Burnett, 245 N.J. Super. 99, 584 A.2d 268 (App. Div. 1990), the court rejected the Peterson rule that an acquittal on one offense that precludes the finding of one or more elements of a second offense invalidates a conviction on the second offense because it believed that this Court would apply the doctrine of unreviewability even in such circumstances.
The Dunn /Powell rule should apply when the reason for the inconsistent verdicts cannot be determined. In such cases, we should not speculate as to whether the verdicts resulted from jury lenity, compromise, or mistake not adversely affecting the defendant. In Powell, the Supreme Court explained that
inconsistent verdicts . . . should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its [guilty verdict] . . . and then through mistake, compromise, or lenity, arrived at an inconsistent Conclusion on [a different] offense. But in such situations the Government has no recourse if it wishes to correct the jury's error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution's Double Jeopardy Clause.
Inconsistent verdicts therefore present a situation where "error," in the sense that the jury has not followed the court's instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.
[Powell, (supra) , 469 U.S. at 65, 105 S. Ct. at 476-477, 83 L. Ed. 2d at 468-469 (emphasis added) (citations omitted).]
We quite agree with that statement of the law. The problem with the analysis in this case is that there is virtually no "uncertainty." The reason for the verdict appears from the record. Despite the prosecutor's repeated attempts to persuade the trial court to clarify its charge to the jury on accomplice liability for aggravated arson, the court did not correct its original charge. Early in its instructions, the court instructed the jury that Count Two of the indictment charged defendant with committing aggravated arson as a principal:
The second count indicates [the defendant] . . . did commit the act of starting a fire at 19 Vanderpool Street, Newark, New Jersey, thereby purposely or knowingly placing another person in danger of death or bodily injury and or with the purpose of destroying said structure of another. Commonly referred to . . . as aggravated arson.
In order for you to find the defendant to be guilty of aggravated arson, the state must prove the following elements beyond a reasonable doubt. One; that the defendant started a fire. . . .
If the state has proven each element beyond a reasonable doubt, then you should find the defendant ...