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State v. Kelly

May 4, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DUANE KELLY, A/K/A DWAYNE A. KELLY, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 406 N.J. Super. 332 (2009).

SYLLABUS BY THE COURT

(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).

The issue in this appeal is whether defendant's second prosecution should have been barred by application of the doctrine of collateral estoppel, as incorporated in the Double Jeopardy Clause of the United States and New Jersey Constitutions.

Defendant Duane Kelly was charged in a multi-count indictment with the purposeful or knowing murder of Rajuahn Anderson and Malcom Mills; felony murder of both victims; first-degree robbery of both victims; third-degree possession of a .357 and/or .38 caliber handgun and a .40 caliber handgun; and second-degree possession of a .357 and/or .38 caliber handgun with the purpose to use it unlawfully against both victims. The indictment alleged that these crimes took place in the City of Plainfield (Plainfield charges). In a separate indictment, defendant was charged with, among other things, second-degree unlawful possession of a firearm while at the same time possessing with intent to distribute a controlled dangerous substance; second-degree eluding; third-degree theft of a pick-up truck; third-degree burglary of a pick-up truck; third-degree unlawful possession of a weapon; and third-degree possession with intent to distribute a controlled dangerous substance. This indictment alleged that these crimes occurred in the Borough of Fanwood and Clark Township (Clark charges).

In October 2003, defendant was jointly tried on both indictments before the same jury. The State presented the following evidence at trial. Rajuahn Anderson, a drug dealer, stored a cache of marijuana, along with a .40 caliber semi-automatic pistol and a .38 caliber revolver, in his two-story apartment in Plainfield. On the afternoon of June 15, 2001, defendant spent time with Anderson, Malcolm Mills, and others in that apartment. Both Anderson and Mills died from single gunshot wounds to their heads, and the bullets that killed them were fired from the same gun, either a .357 or .38 caliber firearm. In addition, defendant was arrested following a high-speed chase while driving a truck he stole a short distance from Anderson's apartment. In the stolen truck, the police discovered a .40 caliber semi-automatic pistol, a box for the pistol, and a black backpack containing bags of marijuana, many small empty baggies, and an electronic scale. Witnesses familiar with the contents of Anderson's apartment testified that the .40 caliber semi-automatic pistol and scale appeared to be the same as those possessed by Anderson. Additionally, Anderson's fingerprints were found on the gun box and on one of the plastic bags in the backpack. Finally, the bodies of Anderson and Mills were discovered on June 17, 2001, in the bedroom of Anderson's apartment. The apartment showed no sign of forced entry, and Anderson's .38 caliber handgun was missing. The murder weapon was not recovered by the time of trial.

Defendant called only one witness, Shelley Copeland Perry. According to Perry, Terrence Wilson -- who also was indicted for the murders but was scheduled to be tried separately -- admitted to her that he and George Pennant had killed the victims during a botched robbery. In her testimony, Perry made no mention of defendant.

Based on Perry's testimony, the court instructed the jury that defendant could be held liable either as a principal or an accomplice on the charges of murder, felony murder, robbery, and possession of a .357 or .38 caliber handgun with the purpose to use it unlawfully against both victims. The court also instructed that defendant could be found guilty of the armed robbery of Anderson only if the jury determined that defendant was armed as a principal or an accomplice with a .357 or .38 caliber firearm. No one disputed that the murder weapon was a .357 or .38 caliber handgun. The jury also was charged on actual, constructive, sole, and joint possession of that weapon.

The jury found defendant guilty of the purposeful or knowing murders of Anderson and Mills, of the felony murders of the two victims, of the armed robbery of Anderson, and of the unlawful possession of a .40 caliber firearm. More specifically, the jury noted on the verdict sheet that in committing the robbery "defendant was armed with and or did use a . . . firearm" and that the felony murders were "committed by the use of a firearm." The jury, however, acquitted defendant of both unlawful possession of a .357 or .38 caliber handgun and possession of that weapon for the purpose of using it in the robbery and murders. On the Clark charges, the jury returned guilty verdicts on all counts but one.

Before Terrence Wilson's trial for the Anderson and Mills murders, Perry recanted her prior testimony and statements implicating Wilson in the killings. Based on Perry's admission to having falsely implicated Wilson and perjured herself at defendant's trial, defendant moved for a new trial. Without objection from the State, the court granted the new-trial motion on all the Plainfield convictions except the unlawful possession of a .40 caliber handgun. The State also dismissed the charges against Wilson.

In light of the State's dismissal of the charges against co-defendant Wilson, the court declared that, in the second trial, defendant could be tried only as a principal on the murder and robbery charges. The trial court rejected defendant's argument that the not guilty verdicts on the gun charges indicated that he was an accomplice to the crimes. The court ultimately determined that it was impossible to know whether the first jury considered defendant to be the shooter or an accomplice to the crimes. The court held that the doctrine of collateral estoppel did not bar a retrial of the vacated murder and robbery convictions. At defendant's second trial, the State introduced additional evidence to bolster its case, including the subsequently found .38 caliber revolver used to kill Anderson and Mills, and additional testimony placing defendant at the crime scene. The second jury found defendant guilty of two purposeful or knowing murders, two felony murders, and armed robbery.

The Appellate Division rejected defendant's argument that because the jury in the first trial found him not guilty of unlawfully possessing and possessing for an unlawful purpose a .357 or .38 caliber handgun -- the murder weapon -- the Double Jeopardy Clause and principles of collateral estoppel barred a retrial for murder, felony murder, and armed robbery. The panel refused to speculate on how the jury arrived at its verdict, stating that any number of suppositions could be advanced. In the panel's view, the acquittals were not the equivalent of the finding of an ultimate fact that could be used to collaterally estop a retrial for the murder and armed robbery charges.

The Supreme Court granted defendant's petition for certification, limited to the issue of whether his second prosecution should have been barred by application of the doctrine of collateral estoppel, as incorporated in the Double Jeopardy Clause of the United States and New Jersey Constitutions.

HELD: The Court affirms the judgment of the Appellate Division upholding defendant's murder, felony-murder, and armed-robbery convictions. Defendant's second trial was not barred by the principles of collateral estoppel, which are incorporated in the Double Jeopardy Clause. Because of the seemingly inconsistent verdicts in the first trial, defendant cannot establish that the jury determined an ultimate fact that precluded a retrial of the reversed convictions. Moreover, even if the verdicts were not inconsistent, the Court would not be inclined to apply the constitutional-equitable doctrine of collateral estoppel when the ultimate issue defendant seeks to preclude from relitigation is one that might well have been founded on a defense witness's perjured testimony, testimony that tainted both the acquittals and convictions in the first trial.

1. The Fifth Amendment of the United States Constitution guarantees that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Double Jeopardy Clause provides three basic safeguards: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." United States v. DiFrancesco, 449 U.S. 117, 129 (1980). The New Jersey Constitution provides similar double jeopardy protection to its federal counterpart. Generally, the Double Jeopardy Clause does not "bar reprosecution of a defendant whose conviction is overturned on appeal" because, until the proceedings have run their full course, the defendant remains in a state of "continuing jeopardy." Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 308 (1984). A defendant's successful motion for mistrial, moreover, typically will "remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." United States v. Dinitz, 424 U.S. 600, 607 (1976). The State, however, cannot reprosecute a defendant on a charge that is reversed because of insufficient evidence to support the conviction. Those basic principles help frame the issues in this case. No one disputes that in light of the acquittals for unlawful possession of a .357 or .38 caliber handgun and possession of that weapon for an unlawful purpose, defendant cannot be retried on those charges. No one suggests that there was insufficient evidence to support the murder, felony-murder, and armed-robbery convictions in the first trial. The United States Supreme Court, however, has acknowledged that, given contradictory verdicts, no amount of rational exegesis may explain the actions of a jury. United States v. Powell, 469 U.S. 57 (1984). The United States Supreme Court recognized that inconsistent verdicts, such as an acquittal of a predicate offense and a guilty finding of a greater offense, could not be viewed simply as a jury giving "a windfall to the Government" when it is just as likely that a jury -- despite overwhelming evidence of guilt -- found a defendant not guilty "through mistake, compromise, or lenity." Id. at 65. Thus, in cases of inconsistent verdicts returned by the same jury at the same trial, the doctrine of collateral estoppel or issue preclusion has no meaning, because it cannot be determined why a jury returned an acquittal. Without the determination of an ultimate fact that can rationally foreclose some other issue from consideration, double-jeopardy principles do not apply. The burden is on defendant to prove that the issue sought to be precluded was actually decided in the first trial. That he cannot do here. (Pp. 15-22)

2. Given the trial record, the judge's charge, and the verdicts rendered, the Court cannot find a rationally fact-based explanation for why, on the one hand, the jury acquitted defendant of both unlawful possession of a .357 or .38 caliber handgun and possession of that weapon for a purpose to use it unlawfully against the victims and, on the other hand, convicted him of both the armed robbery and murders with that weapon. Moreover, the Court cannot determine from the verdict sheet whether the jury convicted defendant of the robbery and murders as an accomplice or principal, or whether some of the jurors convicted on the basis of accomplice liability and others as a principal. Unanimity on whether a defendant is guilty as an accomplice or principal is not required in this State. Based on the evidence, the jury charge, and verdict, defendant was found guilty -- as an accomplice or principal (or both) -- of robbery while armed with a .357 or .38 caliber handgun and the felony murders, which were committed with the use of a .357 or .38 caliber handgun. The Court doubts that a jury, rationally deciding the issues in this case, could conclude that defendant committed the robbery and murders with a .357 or .38 caliber handgun, as an accomplice, but that he did not, as an accomplice, possess a .357 or .38 caliber handgun for the unlawful purpose of committing the robbery and murders. Defendant in this case has not met his burden of showing that the jury's not guilty verdict of possession of a .357 or .38 caliber handgun for the purpose to use it unlawfully against another was based on a rational determination of an ultimate fact -- that he was not the actual shooter. (Pp. 22-26)

3. Even if defendant had met his burden of persuasion and proved that the acquittals showed unmistakably that the first jury believed that he was not the actual shooter, but rather an accomplice, the Court would have grave doubts whether an ultimate issue that was determined by a jury seemingly based on perjured testimony is entitled to preclusive effect in a retrial, such as here. In this case, Perry's perjured testimony -- introduced innocently by defendant himself -- opened the door to a theory of accomplice liability that tainted not only the convictions, but also the acquittals, thus undermining the integrity of the trial process. An ultimate fact founded on perjured testimony is not fairly procured, and it is doubtful that collateral estoppel requires one unjust result to perpetuate another unjust result. The constitutional equities do not favor the application of collateral estoppel in this case. All in all, there is no reason that would militate toward giving preclusive effect to an issue that may have been decided on perjured testimony. The Court does not disturb the benefit defendant received from the acquittals and reversal of convictions based on perjured testimony. But the Double Jeopardy Clause does not give defendant the constitutional windfall of barring a new trial on the murder and robbery charges. (Pp. 26-29)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN's opinion.

The opinion of the court was delivered by: Justice Albin

Argued January 20, 2010

In this case, a jury convicted defendant Duane Kelly of committing multiple crimes, including two murders and a robbery. Based on the court's instructions, the jury could only have found that those crimes were committed with the use of a .357 or .38 caliber handgun. The jury, however, acquitted defendant of both having unlawfully possessed that weapon and having possessed it for the purpose of committing the murders and robbery.

The trial court ordered a new trial on the convictions because of a defense witness's perjured testimony. At the second jury trial, defendant was convicted, as a principal, of the murders and robbery. Defendant claims that the second trial violated the Double Jeopardy Clause of the Fifth Amendment. He essentially argues that by finding him not guilty of possessing the murder weapon, the first jury must have concluded that he was an accomplice and not the shooter. Therefore, defendant submits that the State was barred from prosecuting him in the second trial on a theory that he was the shooter.

Both the trial court and the Appellate Division rejected defendant's Double Jeopardy claim, concluding that the acquittals on the weapons-possession charges did not collaterally estop the retrial on the remaining charges. See State v. Kelly, 406 N.J. Super. 332 (App. Div. 2009). We affirm.

Defendant's retrial did not offend any principle of collateral estoppel incorporated within the constitutional guarantee against double jeopardy. A review of the jury charge and verdict sheet in the first trial indicates that the acquittals and convictions constituted an inconsistent verdict. Therefore, we cannot know with any certainty the reasons behind the jury's verdict, and indeed the jury may have acquitted based on compromise, lenity, or other concerns unrelated to the evidence.

Because the first trial's acquittals did not determine as an ultimate fact that defendant was an accomplice rather than the shooter, it follows that the State was not foreclosed on double jeopardy grounds from proceeding on a theory that he acted alone. Even if the verdicts were not inconsistent, we would be loath to conclude that the State should be collaterally estopped from proceeding with a new trial necessitated by perjured testimony ...


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