SYLLABUS
(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).
Argued September 13, 2004 -- Decided December 1, 2004
LaVECCHIA, J., writing for a unanimous Court.
The issue in this appeal is whether the jury’s failure to convict on attempted aggravated sexual assault, or for that matter to have convicted defendant on any of the other charges, was impermissibly inconsistent with the charge on which it convicted, possession of a weapon for an unlawful purpose, rendering the latter without sufficient evidence in the record.
On April 30, 1999, Carmen Miles and her co-worker, Heather Hernandez, went to a bar in Manhattan where they encountered defendant and Raymond Surgey. They had a few drinks together and then went to a restaurant and bar/dance club, where they danced and had more drinks. Apparently, everyone was having a good time. It got quite late and Miles explained that she needed to get home before 1 p.m.. It was agreed that Raymond’s car and driver would transport defendant and Miles to defendant’s apartment address and that defendant would then call another car to take Miles home from there. While at defendant’s apartment, defendant went to the bedroom and returned with a BB gun, telling Miles that they were going to have sexual relations, that she would enjoy it, and that they would then have breakfast. Miles claimed that defendant was agitated and that he pointed the gun at her. She also described how she tried to calm defendant down. When defendant expressed a desire to play strip poker and went into the kitchen to get a deck of cards, Miles fled the apartment.
Defendant was arrested days later and charged with first-degree attempted aggravated sexual assault,
first-degree kidnapping, fourth-degree aggravated assault by pointing a firearm, and second-degree possession of
a weapon for an unlawful purpose. Defendant’s basic defense was that Miles essentially
consented to an intimate evening and that he only brought out the BB
gun to be cool and offered it to Miles because she was afraid
of her boyfriend and of getting “heat” for getting home so late. Defendant
admitted pointing the gun at the television and later cocking it a few
times. Defendant also stated that the subject of firearms had come up in
conversation earlier that night in the bars and that Miles had indicated that
her boyfriend, with whom she was having problems, owned one.
During the jury’s deliberations, it sent to the court several notes with questions
on a variety of topics. One question, relating to the unlawful purpose charge,
conveyed the jury’s understanding that defendant must be found guilty of either aggravated
sexual assault or kidnapping if he was to be found guilty on the
charge of possession of a weapon for an unlawful purpose. The court instructed
the jury that it was obligated to consider each offense separately and to
render a verdict on each count. The foreman indicated to the court that
he did not find the court’s instruction responsive to the jury’s inquiry. The
court again instructed that the jury must render a verdict as to each
count individually and asked if that instruction was helpful, to which the foreman
responded “somewhat.” Again the court reiterated its instruction. After resolution of a juror
disqualification issue, the jury returned, explaining that it had reached a verdict as
to two of the charges, but that it could not reach a verdict
on the other two. The court repeated a portion of its original charge
and approximately an hour later the jury returned with a verdict of guilty
on the possession of a weapon for an unlawful purpose charge, but acquitted
defendant of kidnapping, attempted aggravated sexual assault, and aggravated assault (pointing a firearm).
Defendant moved for a new trial pursuant to R. 3:20-1. The court granted
the motion, finding that the verdict was against the weight of the evidence
and that the unlawful purpose conviction was “legally incongruous” with the verdicts on
the other counts. The State moved for leave to appeal the grant of
a new trial, which the Appellate Division denied. The State then moved before
this Court for leave to appeal and for summary reversal. We granted leave
to appeal and directed the Appellate Division to hear the merits of the
State’s appeal. The Appellate Division then determined that the jury’s verdict of guilt
on the unlawful purpose charge was inconsistent with its acquittal of defendant on
the substantive offenses charged, and held that the acquittals demonstrated the lack of
a sufficient evidential basis in the record for the unlawful purpose element of
defendant’s weapons conviction. The Appellate Division ruled, however, that defendant was entitled to
a judgment of acquittal, not a grant of a new trial. R. 3:18-2.
The Supreme Court granted the State’s petition for certification.
HELD: A jury may render inconsistent verdicts so long as there exists a
sufficient evidential basis in the record to support the charge on which the
defendant is convicted. Here, there exists adequate evidence to support the jury’s verdict
of guilt on the unlawful possession charge. Therefore, defendant’s conviction must be reinstated.
1. Inconsistent verdicts are accepted in our criminal justice system. We permit inconsistent
verdicts to be returned by a jury because it is beyond our power
to prevent them. We do not speculate why a jury acquits. We accept
inconsistent verdicts – and not only when the jury’s action benefits a defendant. Such
verdicts are permitted “normally . . . ‘so long as the evidence was
sufficient to establish guilt on the substantive offense beyond a reasonable doubt.’” State
v. Petties,
139 N.J. 310, 319 (1995). That said, the return of an
“inconsistent verdict” may not insulate a conviction from reversal based on other defects
in the criminal proceeding. Inconsistent verdicts – just like consistent verdicts – may be vulnerable,
however, when an incomplete or misleading jury instruction causes an unfair trial. (Pp.
13-18)
2. In this matter, that defendant was acquitted of the substantive charge of
attempted aggravated sexual assault is not fatal to the conviction for possession of
a weapon for an unlawful purpose. The superficial inconsistency between the two charges
does not void the legitimacy of the jury’s conviction. We find sufficient support
in the record for that conviction. Defendant was convicted of possession of a
weapon for an unlawful purpose, contrary to N.J.S.A. 2C: 39-4a. There are four
elements to that offense: (1) the object possessed was a firearm; (2) defendant
possessed it; (3) the purpose of the possession was to use the firearm
against another’s property or person; and (4) defendant intended to use it in
a manner that was unlawful. Defendant does not deny he produced a BB
gun, establishing the first and second elements. As to the remaining elements, a
jury could believe that defendant had the unlawful purpose that was charged here
based on the victim’s testimony. If the jury believed her testimony, the third
and fourth elements are satisfied and, so, the conviction rests on a sufficient
evidential base. Even though the jury may have accepted some of Mile’s testimony
about defendant’s expressed intention to have sexual relations with her while he possessed
his BB gun in her presence, the jury may have not believed entirely
her version about how the evening unfolded. Alternatively, it may have rendered a
compromise verdict. The verdict is explainable also on the basis of lenity. Regardless
of which of the ways noted, we conclude that the record contains sufficient
evidence from the witnesses, even if their stories were not accepted in full,
to support the unlawful purpose charge on which defendant was found guilty. (Pp.
18-21)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the Law Division for reinstatement of defendant’s conviction on the charge of
possession of a weapon for an unlawful purpose.
JUSTICE WALLACE filed a separate, concurring opinion, in which CHIEF JUSTICE PORITZ and
JUSTICE LONG join, expressing concern over the trial court’s failure to fully respond
to the jury’s question concerning the unlawful possession count and suggesting appropriate jury
instructions, with the caveat that courts should not inferentially or otherwise lead juries
into believing that they properly could reach inconsistent verdicts.
JUSTICES ZAZZALI, ALBIN, and RIVERA-SOTO join in JUSTICE LaVECCHIA’s opinion. JUSTICE WALLACE filed
a separate concurring opinion in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.
SUPREME COURT OF NEW JERSEY
A-
60 September Term 2003
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL W. BANKO, a/k/a
MICHAEL MC CABE,
Defendant-Respondent.
Argued September 13, 2004 – Decided December 1, 2004
On certification to the Superior Court, Appellate Division, whose opinion is reported at
364 N.J. Super. 210 (2003).
John J. Scaliti, Assistant Prosecutor, argued the cause for appellant (John L. Molinelli,
Bergen County Prosecutor, attorney).
Donald Horowitz argued the cause for respondent (Mr. Horowitz, attorney; Mr. Horowitz, Kelly
Berton Rocco and Jill Horowitz, on the briefs).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In the matter before us, defendant was acquitted of kidnapping, attempted aggravated sexual
assault, and aggravated assault (pointing a firearm), and convicted of second-degree possession of
a weapon for an unlawful purpose. The trial court vacated the weapons possession
conviction and ordered a new trial based on a perceived inconsistency in the
jury verdicts. The Appellate Division also held that the verdicts were inconsistent, but
concluded that defendant was entitled to entry of a judgment of acquittal, not
a grant of a new trial. R. 3:18-2.
We granted the State’s petition for certification, State v. Banko,
179 N.J. 304
(2004), and now reverse. We reaffirm that a jury may render inconsistent verdicts
so long as there exists a sufficient evidential basis in the record to
support the charge on which the defendant is convicted. Here, there exists adequate
evidence to support the jury’s verdict of guilt on the unlawful possession charge.
Therefore, defendant’s conviction must be reinstated.
I.
Defendant, Michael Banko, was charged with first-degree attempted aggravated sexual assault contrary
to N.J.S.A. 2C:5-1, 2C:14-2a(4), first-degree kidnapping contrary to N.J.S.A. 2C:13-1b(1), fourth-degree aggravated assault
by pointing a firearm contrary to N.J.S.A. 2C:12-1b(4), and second-degree possession of a
weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4a. To address the specific
sufficiency-of-the-evidence issue presented, we recount the relevant evidence as presented by the parties.
The parties do not dispute that defendant and the alleged victim, Carmen Miles,
met the evening of Friday, April 30, 1999. A co-worker, Heather Hernandez, accompanied
Miles to a Manhattan bar where they encountered defendant and Raymond Surgey. While
the four had some rounds of drinks, Miles and defendant engaged in “getting-to-know-you”
conversation.
Both defendant and Miles acknowledge that she spent a considerable portion of time
talking about her relationship with her boyfriend, Tom. She and Tom had relocated
from Georgia in the expectation that their relationship was leading toward marriage, and
had moved in with Tom’s parents in an apartment in Spring Valley, New
York. However, recently their relationship had deteriorated. Suffice it to say that on
April 30, 1999, Miles was expressing her disappointment, at times emotionally, about the
turn of events in her life.
Miles informed her companions that she had to catch a 9:30 p.m. bus
from the Port Authority to get home to Tom’s parents’ residence. She referred
again to the 9:30 bus when, later, the topic of getting some dinner
arose. Nonetheless, she decided to stay because both Hernandez and defendant reassured her
that they would “make sure she would get home.” Although the record is
unclear, it appears that Raymond was involved with a car service and that
he had access that night to a car and driver. Accordingly, all four
went to Tattoo’s, a restaurant and dance club/bar, where they engaged in further
socializing. There was divergent testimony about whether Miles and defendant kissed while dancing
together or engaged in other exchanges that were indicative of mutual romantic interest.
To be sure, defendant’s description of the evening’s encounter portrayed Miles as appearing
to be interested in him. Miles testified that she was enjoying the dancing
and conversation and that everyone was having a good time.
According to Miles, she raised the subject of leaving because she was concerned
about getting home before one o’clock. It was agreed that Raymond’s car and
driver would transport Miles and defendant from Tattoo’s to defendant’s home, and then
the driver would return to Tattoo’s to pick up Raymond. Miles explained that
she did not want defendant to know where she lived, so she agreed
to be transported to defendant’s apartment, which was located along her route home.
Defendant had promised to call for another car to take her home from
there.
When they arrived, Miles followed defendant into his apartment and waited near the
foyer while he went immediately into the bathroom. When he emerged, he entered
another adjacent room that she thought was a bedroom. She expected to see
him return with a phone. Instead, he reappeared with a gun that he
held pointed toward her. In a “cold” voice, he told her not to
scream. Trembling and crying, she asked him to let her leave and reminded
him that she did not live alone. He reminded her that no one
knew where or with whom she was. He informed her that they would
have sexual relations and she would enjoy it, and that afterwards they would
have some breakfast. She described his condition as agitated and becoming increasingly so
whenever she cried, so she tried to calm him by conversing and acting
in such a way to make him think that she would cooperate with
his wishes. (For example, she assisted him in unbuttoning his shirt).
Eventually, Miles was able to flee the apartment. Her escape was made possible
when she suggested that defendant, who wanted them to play strip poker, go
into his kitchen to look for playing cards. While he was out of
the room, she ran to the front door, unlocked it, and escaped. Outside
she screamed and banged on car hoods and apartment doors until she was
allowed into the apartment of Arnold and Carol Nussbaum after they heard her
crying. The police were called and arrived shortly thereafter; Miles was transported to
the police station, questioned and treated by paramedics for a knee abrasion. She
was unable to provide the police with defendant’s last name or to identify
his apartment.
See footnote 1
Defendant’s version of the latter portion of the evening differed in two key
respects: (1) his presentation and use of the gun and (2) the nature
of his interactions with Miles. According to him, they went to his apartment
by mutual consent and Miles acted in a manner that was suggestive of
intimacy. While they were relaxing together on the living room couch watching television,
Miles resumed talking about her relationship with Tom. She began to cry and,
according to defendant, became “hysterical,” stating repeatedly that she could not believe that
she had let herself get into the situation in which she found herself
-- namely moving to New York in anticipation of marrying Tom and, then,
having that relationship fall apart.
As she remained inconsolable sitting on the couch near to him, defendant began
to wonder what to do. As he put it, it was late at
night, he was exhausted and had had some drinks that night, and he
had in his apartment a woman crying about her former boyfriend. He tried
to reassure her that she would be fine and offered to help her
search for a place to live. Eventually, he got up from the couch
to “get some distance,” and went to sit on the radiator opposite the
couch. He decided to call a car to take her home and told
her that he was going to do so. However, when he went into
another room to make that call, he heard the screen door slam and
found that Miles was gone. He stated that he later heard a woman
scream outside, but never saw Miles again that evening. He fell asleep with
the lights and television on. Although he left the front door open, she
did not return during the night or the next morning to get the
shoes, coat, and bags that she had left behind. He was able to
secure her work telephone number from information obtained from a pay stub that
was in one of her bags and called that number on Monday and
Tuesday, leaving messages about contacting her to give back her things. He succeeded
in speaking to her at the work number on Wednesday, May 5. According
to Miles, in that conversation defendant said that his name was “Michael McCabe.”
After his call, she contacted the police and they were able to locate
defendant. He cooperated with their investigation, consenting to searches of his car and
apartment.
In defendant’s version of events, he admits that he showed Miles his BB
gun and told the police that he did when questioned. The subject of
firearms had come up during the initial conversations in the bars. Miles told
him that her father had taught her how to shoot when she was
younger, and she mentioned that Tom had a gun. According to defendant, he
showed her his BB gun to be “cool.” To reassure her that it
was not loaded, he pointed it at the television and pulled the trigger.
According to him, she expressed surprise at how realistic it appeared, and reached
out to hold it. He offered to let her take the gun home
with her, but she declined so he placed it under the couch where
they were sitting at the time. Later, when she began to express fright
and became emotional about the “heat” she would receive for not going home
at an early hour, defendant offered her the gun again. She declined, but
remained distraught and so defendant tried to get her to relax and stop
crying. He also reached under the couch to hold onto the BB gun,
placed the gun in his lap, and then held it there for awhile.
He stated that he may have cocked the trigger a few times before
returning the gun underneath the couch. As noted earlier, he then moved from
the couch to the radiator, eventually leaving the living room to telephone for
a car service to take Miles home.
The jury heard the differing versions of what transpired and convicted defendant of
the charge of possession of a weapon for an unlawful purpose, but acquitted
him of the three other charges. The trial court had instructed the jury
as follows on the unlawful purpose charge:
The Fourth Count of the indictment charges the defendant, Michael Banko, also known
as Michael McCabe, with the crime of possession of a firearm with the
purpose to use it unlawfully against a person. The statute on which the
count of the indictment is based reads in pertinent part, “Any person who
has in his possession any firearm with a purpose to use it unlawfully
against a person is guilty of a crime.”
In order for you to find the defendant guilty of this charge, the
State has the burden of proving beyond a reasonable doubt each of the
following four elements of this crime:
Number 1, [that the BB gun] is a firearm.
Number 2, the defendant possessed the firearm.
Number 3, the defendant possessed the firearm with the purpose to use it
against a person.
Number 4, the defendant’s purpose was to use the firearm unlawfully.
On the fourth element, the trial court instructed the jury that
the State must prove beyond a reasonable doubt . . . that the
defendant had a purpose to use the firearm in a manner that is
prohibited by law. I’ve already defined purpose for you. This element provides that
you find that the State has proven beyond a reasonable doubt that the
defendant possessed the firearm with the conscious objective, design or specific intent to
use it against a person in an unlawful manner as charged in the
indictment and not for some other purpose.
In this case the State contends that the defendant’s unlawful purpose in possessing
the firearm was to unlawfully confine Carmen Miles with the purpose to commit
the crime of aggravated sexual assault upon Carmen Miles.
You must not rely on your own notions of the unlawful purpose of
the defendant. Rather, you must consider whether the State has proven the specific
unlawful purpose charged. The unlawful purpose alleged by the State may be inferred
from all that was said or done and from all the surrounding circumstances
of this case.
During the jury’s deliberations it sent to the court several notes with questions
on a variety of topics. One question, relating to the unlawful purpose charge,
asked
It is our reading of the counts that if a guilty verdict is
found in Count 4 [possession of the B.B. gun for an unlawful purpose]
a guilty verdict must also be found on either aggravated sexual assault or
kidnapping. We believe this specifically [sic] the fourth element states: In this case
the State contends that the defendant’s unlawful purpose in possessing the firearm was
to unlawfully confine Carmen Miles for the purpose to commit the crime of
aggravated sexual assault on Carmen Miles.
The court conferred with counsel and then instructed the jury that it was
obligated to consider each offense separately and to render a verdict on each
count. The jury foreman indicated that he did not think that the court’s
response answered the jury’s question, to which the court responded, “Well, perhaps it
may be helpful, you must render a verdict as to each count individually.
Does that help you?” The foreman’s response was “somewhat.” The exchange continued:
THE FOREMAN: I don’t know if we’re allowed to articulate our concern.
THE COURT: Why don’t you do this? Keeping in mind each count is
a separate offense and you have to render your verdict as to each
charge. If you have a further question let me know.
A lunch recess was taken, after which a juror disqualification issue arose, resulting
in an alternate juror being seated. The jury was instructed to begin deliberations
anew. During the new deliberations, the jury sent a note that it had
reached a verdict on two counts but that it was unable to reach
unanimity on the remaining two charges. Again the court consulted with counsel, read
back to the jury a portion of the original charge, and sent the
jury back to continue its deliberations. Approximately an hour later, the jury returned
its verdict of guilt on the possession of a weapon charge, and its
verdicts of not guilty on the other charges. Defendant moved for a new
trial pursuant to Rule 3:20-1. The court granted the motion, finding that the
verdict was against the weight of the evidence. The court reasoned that the
unlawful purpose conviction was “legally incongruous” with the verdicts on the other counts
and, as a result, concluded that “the evidence [wa]s insufficient to show the
unlawful purpose of using the weapon.” The court’s letter opinion explained that
The State’s proofs suggested that the weapon was an implement used to facilitate
and enforce defendant’s alleged desire of having sexual intercourse with Carmen Miles. However,
the jury found defendant not guilty of attempted aggravated sexual assault, aggravated assault,
and kidnapping. The not guilty finding on these three counts negates a finding
of guilt as to count four, unless an independent unlawful purpose is proved.
If there was some other unlawful purpose for which the defendant could have
used the pistol on May 1, 1999, it was not supported by the
evidence at trial. The State’s evidence was insufficient to prove such other purpose;
therefore, a reasonable jury could not have found an unlawful purpose for the
use of the firearm on the proofs presented.
The State moved for leave to appeal the grant of a new trial,
which the Appellate Division denied. The State then moved before this Court for
leave to appeal and for summary reversal. We granted leave to appeal and
directed the Appellate Division to hear the merits of the State’s appeal. The
Appellate Division then rendered the judgment before us. It determined that the jury’s
verdict of guilt on the unlawful purpose charge was inconsistent with its acquittal
of defendant on the substantive offenses charged (kidnapping, attempted aggravated sexual assault, and
aggravated assault with a firearm), and held that the acquittals demonstrated the lack
of a sufficient evidential basis in the record for the unlawful purpose element
of defendant’s weapons conviction. This appeal is now here on the State’s petition
for certification, which raises the question whether the jury’s failure to convict on
attempted aggravated sexual assault, or for that matter to have convicted defendant on
any of the other charges, was impermissibly inconsistent with the charge on which
it convicted, rendering the latter without sufficient evidence in the record.
II.
Inconsistent verdicts are accepted in our criminal justice system. State v. Grey,
147 N.J. 4, 11 (1996) (stating that “[i]n such cases, we should not speculate
as to whether the verdicts resulted from jury lenity, compromise, or mistake not
adversely affecting the defendant.”). We apply that rule based on the reasons set
forth initially by the United States Supreme Court in Dunn v. United States,
284 U.S. 390,
52 S. Ct. 189,
76 L. Ed. 356 (1932). In
Dunn, the defendant was convicted of maintaining a nuisance for the sale of
alcoholic beverages but acquitted of the unlawful possession and unlawful sale of alcoholic
beverages charges. Supra, 284 U.S. at 391-92, 52 S. Ct. at 190, 76
L. Ed. at 358. The Court held:
Consistency in the verdict is not necessary. Each count in an indictment is
regarded as if it was a separate indictment. If separate indictments had been
presented against the defendant for possession and for maintenance of a nuisance, 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. Where the offenses are separately charged in the counts of a single
indictment the same rule must hold. As was said in Steckler v. United
States, 7 F.(2d) 59, 60 [(2nd Cir. 1925)]:
“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 not more than
their assumption of a power which they had no right to exercise, but
to which they were disposed through lenity.”
[Id. at 393, 52 S. Ct. at 190, 76 L. Ed. at 358-59
(some citations omitted).]
United States v. Powell,
469 U.S. 57,
105 S. Ct. 471,
83 L.
Ed.2d 461 (1984), reaffirmed that inconsistent verdicts are acceptable and non-reviewable. In
Powell, the defendant was convicted of using a telephone to commit and facilitate
conspiracy to possess cocaine with intent to distribute and possession of cocaine with
intent to distribute, but was acquitted of the conspiracy and possession charges. Supra,
469 U.S. at 60, 105 S. Ct. at 474,
83 L. Ed 2d
at 465. The Court cited the above-quoted passage from Dunn and embellished its
inconsistent-verdict rule that,
embodies a prudent acknowledgement of a number of factors.... [I]nconsistent verdicts - -
even verdicts that acquit on a predicate offense while convicting on the compound
offense – - 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 conclusion on the compound offense, and then through mistake,
compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.
[Id. at 65, 105 S. Ct. at 476,
83 L. Ed 2d at
468.]
The Court rejected “as imprudent and unworkable [] ... allow[ing] criminal defendants to
challenge inconsistent verdicts on the grounds that in their case the verdict was
not the product of lenity, but of some error that worked against them”
and, further, abandoned that portion of its previous reasoning, in Dunn, that was
based on a res judicata analysis. Id. at 64, 66, 105 S. Ct.
at 476, 477, 83 L. Ed.
2d at 468, 469. Further, Powell distinguished
an insufficient evidence review from an inconsistent verdicts challenge.
Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at
trial could support any reasonable doubt. This review should be independent of the
jury’s determination that evidence on another count was insufficient. The Government must convince
the jury with its proof, and must also satisfy the courts that given
this proof the jury could rationally have reached a verdict of guilt beyond
a reasonable doubt.
[Id. at 67, 105 S. Ct. at 478,
83 L. Ed 2d at
470. (internal citations omitted).]
To the extent that restatement is required, see State v. Grey, supra, 147
N.J. at 11, the Dunn/Powell rule controls inconsistent verdicts in this State. An
inconsistent verdict may be the product of jury nullification. We permit inconsistent verdicts
to be returned by a jury because it is beyond our power to
prevent them. State v. Ragland,
105 N.J. 189, 204-05 (1986) (acknowledging jury’s nullification
power that exists “by virtue of the finding of a verdict of acquittal”);
see also State v. Hunt,
115 N.J. 330, 400-01 (1989) (Handler dissenting) (noting
that jury nullification is not subject to review or to reversal). We do
not speculate why a jury acquits. We accept inconsistent verdicts -- and not
only when the jury’s action benefits a defendant. Such verdicts are permitted “normally
. . . ‘so long as the evidence was sufficient to establish guilt
on the substantive offense beyond a reasonable doubt.’” State v. Petties,
139 N.J. 310, 319 (1995) (quoting State v. Kamienski,
254 N.J. Super. 75, 95 (App.
Div.), certif. denied
130 N.J. 18 (1992)); see also State v. Ingenito,
87 N.J. 204, 211-12 (1981) (accepting, before Powell,“inconsistent verdicts that accrue to the benefit
of a defendant”).
That said, the return of an “inconsistent verdict” may not insulate a conviction
from reversal based on other defects in the criminal proceeding. In Grey, supra,
this Court reversed the defendant’s felony murder convictions not because the jury returned
inconsistent verdicts, but, rather, because our decision was “about a misleading charge that
led to a verdict not permitted under our law. . . . The
Dunn/Powell rule does not sanitize other trial errors.” 147 N.J. at 17. In
sum, a claim of inconsistent verdicts will not invalidate a conviction. Inconsistent verdicts
–- just like consistent verdicts -- may be vulnerable, however, when an incomplete
or misleading jury instruction causes an unfair trial.
Such an example may be found in State v. Jenkins,
See footnote 2
234 N.J. Super. 311, 313 (App. Div. 1989), in which the Appellate Division reversed and remanded
for a new trial, reasoning that the jury had not been instructed on
the specific unlawful purposes suggested by the evidence and that the instruction failed
to inform the jury that it could not convict based on its own
notions of unlawfulness or an undescribed purpose. We underscored the correctness of the
Jenkins holding in Petties, supra, in which we explained that because Jenkins was
acquitted of aggravated assault with a weapon, “and no evidence other than the
account of the alleged assault [wa]s adduced to prove a charge of possession
of the weapon for an unlawful purpose,” the jury could not “convict on
the possession charge because it [wa]s left to speculate on the unlawful purpose.”
Petties, supra, 139 N.J. at 314. As the Jenkins court properly recognized, the
flaw was in the jury instruction and not that the two seemingly inconsistent
verdicts were unacceptable. Jenkins, supra, 234 N.J. Super. at 315-16. Petties expressly cautioned
that “[t]o conclude that every acquittal of the substantive charge involving the use
of a gun requires an erasure of the charge of possession for an
unlawful purpose would be an overreading of Jenkins.” Petties, supra, 139 N.J. at
316.
A.
In this matter, that defendant was acquitted of the substantive charge of attempted aggravated sexual assault is not fatal to the conviction for possession of a weapon for an unlawful purpose. The superficial inconsistency between the two charges does not void the legitimacy of the jury’s conviction. The jury may have chosen to convict on possession of a weapon for an unlawful purpose, the purpose being, as the court instructed in respect of the State’s theory of the case, to confine Ms. Miles and to assault her sexually. And, yet, the jury could have determined not to convict defendant on the substantive offenses for reasons known only to the jury.
We must accept the arguably inconsistent verdicts, and decline to speculate on the reasons for the jury’s determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted. We find sufficient support in the record for that conviction.
Defendant was convicted of possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. There are four elements to that offense: (1) the object possessed was a firearm; (2) defendant possessed it; (3) the purpose of the possession was to use the firearm against another’s property or person; and (4) defendant intended to use it in a manner that was unlawful. State v. Brims, 168 N.J. 297, 303 (2001) (quoting State v. Diaz, 144 N.J. 628, 635 (1996)). Defendant does not deny he produced a BB gun, establishing the first and second elements. As to the remaining elements, a jury could believe that defendant had the unlawful purpose that was charged here based on the victim’s testimony. She testified that shortly after entering defendant’s apartment, he went into the bedroom, returned with a handgun and pointed it toward her. She also testified that defendant stated, “[n]obody knows who you’re with and no one knows where you are, no one will find you,” and that “he was going to f--k me and he pointed the gun at me and he told me that I wasn’t going anywhere and that I was going to love it and in the morning ... we were going to have eggs.” If the jury believed her testimony, the third and fourth elements are satisfied and, so, the conviction rests on a sufficient evidential base.
The State alternatively contends that the verdicts here are not inherently inconsistent. Although we have concluded that they need not be consistent for defendant’s conviction to be upheld, we note that there is merit to that position. The jury did not have to believe all of the victim’s testimony, and may have found some aspects of defendant’s story more credible. Defendant’s acquittal of aggravated assault with a firearm, contrary to N.J.S.A. 2C:12-1b(4), attempted aggravated sexual assault, contrary to N.J.S.A. 2C:5-1, 2C:14-2a(4), and kidnapping, contrary to N.J.S.A. 2C:13-1b(1), may be due to the jury’s disinclination to accept Miles’s story in its entirety. Specifically, the jury could have been convinced of only the status crime of unlawful possession and not been persuaded that the commission of the crime of aggravated sexual assault had been pressed to the stage of an attempt. See State v. Brims, supra, 168 N.J. at 303-04. Nonetheless, we simply need not engage in such a parsing of the evidence.
B.
Thus, even though the jury may have accepted some of Miles’s testimony about defendant’s expressed intention to have sexual relations with her while he possessed his BB gun in her presence, the jury may have not believed entirely her version about how the evening unfolded. Alternatively, it may have rendered a compromise verdict. The verdict is explainable also on the basis of lenity. Regardless of which of the ways noted, we conclude that the record contains sufficient evidence from the witnesses, even if their stories were not accepted in full, to support the unlawful purpose charge on which defendant was found guilty.
We hold that it was error, therefore, for the trial judge and the Appellate Division to have reversed the jury’s conviction based on lack of sufficiency of the evidence. We note further that the question of the adequacy of the jury instruction on the unlawful possession charge was not raised by the State in its appeal of the trial court’s grant of a new trial. Defendant did not appeal his grant of a new trial. Thus, the instruction on the charge of possession of a weapon for an unlawful purpose was not before the Appellate Division. R. 2:3-4(a). Were we to consider the instruction given by the trial court on the unlawful purpose charge, we would find it to pass muster. See footnote 3 State v. Villar, 150 N.J. 503, 511 (1997). It followed the model charge and was case-specific.
The judgment of the Appellate Division is reversed and the matter is remanded to the Law Division for reinstatement of defendant’s conviction on the charge of possession of weapon for an unlawful purpose.
JUSTICES ZAZZALI, ALBIN, and RIVERA-SOTO join in JUSTICE LaVECCHIA’s opinion. JUSTICE WALLACE filed a separate concurring opinion in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.
SUPREME COURT OF NEW JERSEY
A-60- 03 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL W. BANKO, a/k/a
MICHAEL MC CABE,
Defendant-Respondent.
JUSTICE WALLACE, concurring.
I concur with the Court’s analysis regarding our jurisprudence that inconsistent verdicts should
stand when the evidence is sufficient to support a conviction of the substantive
offense. State v. Grey,
147 N.J. 1, 10, 11 (1996).
I write separately to discuss an issue that is not properly raised before
us, but may have contributed to the inconsistent verdicts. The misgiving I have
concerns the failure of the trial court to fully respond to the jury’s
question concerning the unlawful possession count.
Preliminarily, I agree that the trial court properly charged the jury on the
elements the State must prove for the jury to find defendant guilty on
the count of possession of a firearm for an unlawful purpose. The majority
opinion sets forth the charge as related to that count. The trial court
clearly explained the State’s claim that defendant’s unlawful purpose in possessing the firearm
was to “unlawfully confine Carmen Miles with the purpose to commit the crime
of aggravated sexual assault upon Carmen Miles.”
During deliberations, however, one of the notes the jury sent to the court
stated:
It is our reading of the counts that if a guilty verdict is
found in Count 4 [possession of the B.B. gun for an unlawful purpose]
a guilty verdict must also be found on either aggravated sexual assault or
kidnapping. We believe that specifically the fourth element states: In this case the
State contends that the defendant’s unlawful purpose in possessing the firearms was to
unlawfully confine Miles for the purpose to commit the crime of aggravated sexual
assault on Miles.
After conferring with counsel, the trial court merely reminded the jury of its
obligation to consider each offense separately and to render a verdict as to
each count. The foreperson indicated, however, that the court’s statements were not responsive
to the jury’s concern, and the following colloquy ensued:
Court: Well, perhaps it may be helpful, you must render a verdict as
to each count individually.
Foreman: Somewhat. I don’t know if we’re allowed to articulate our concern.
Court: Why don’t you do this? Keeping in mind each count is a
separate offense and you have to render your verdict as to each charge.
If you have a further question, let me know.
In my view, in response to the foreman’s comment about articulating the jury’s
concern, the trial court should have instructed the foreman to present that concern
in writing. It is evident that the foreman’s response, after the trial court
attempted to answer the jury’s question without knowing what troubled the jury, demonstrated
that the jury was still confused.
More importantly, because the jury’s note conveyed its belief that it must decide
the counts consistent with one another, the trial court’s reply that the jury
should consider each charge separately may have inappropriately led the jury to believe
that it properly could reach inconsistent verdicts. Although after the jury has reached
its verdicts, we will generally not disturb them even when they are inconsistent,
during trial, the court should not inferentially or otherwise convey to the jury
that it may apply lenity to reach inconsistent verdicts.
In the absence of the trial court requesting the foreperson to express his
concern in writing, at the very least, the court should have informed the
jury that in a criminal case, the jury cannot create its own unlawful
purpose, but must decide whether the purpose alleged by the State has been
proven beyond a reasonable doubt. In that vein, the court should have instructed
the jury along the following lines:
It may be helpful to restate that as jurors, you may not rely
on your own notions of the unlawful purpose of the defendant. Rather, you
must consider whether the State has proven the unlawful purpose charged. The unlawful
purpose alleged by the State was to confine Carmen Miles with the purpose
to commit the crime of aggravated sexual assault upon her. I instruct you
that unless you find the unlawful purpose, as the State contends, was to
confine Ms. Miles for the purpose to commit the crime of aggravated sexual
assault upon her, you must find defendant not guilty of that charge. If
you find the State has proven beyond a reasonable doubt the unlawful purpose
and each of the elements charged, you may find defendant guilty of that
offense.
Chief Justice Poritz and Justice Long join in this concurrence.
SUPREME COURT OF NEW JERSEY
NO. A-60 SEPTEMBER TERM 2003
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL W. BANKO, a/k/a
MICHAEL MC CABE,
Defendant-Respondent.
DECIDED December 1, 2004
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY Justice Wallace
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
When she ran from the apartment, Ms. Miles was shoeless, coatless, and
without the two bags she had had with her that evening. She explained
that defendant made her remove her coat, which was folded over the opposite
end of the couch in the living area (beyond her reach) from where
she was sitting close to the front door. She was shoeless because defendant
had requested that she remove her heeled shoes upon her initial entry because
the sound of her shoes on the hardwood flooring would disturb his downstairs
neighbors. Thus, her shoes, bags, and coat were not near the front door
when she escaped.
Footnote: 2
In Jenkins the facts asserted by each of the parties differed dramatically.
The defendant was convicted of possession of a handgun without a permit and
possession of a firearm with the purpose to use it unlawfully against another
person; the defendant was acquitted of aggravated assault but convicted of simple assault,
a lesser-included offense. Jenkins, supra, 234 N.J. Super. at 313.
Footnote: 3
We add that defendant has argued before us that he was denied his
right to confrontation due to the physical layout of the trial courtroom that
denied him access to sidebar participation, or alternatively to hear what was being
said at sidebar. This argument was not raised in a cross-petition and, therefore,
it is not properly before us. R. 2:12-11.