(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 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.
SUPREME COURT OF NEW JERSEY
A-
1 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROOSEVELT GREY,
Defendant-Appellant.
Argued January 30, 1996 -- Reargued September 25, 1996
Decided December 11, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at 281 N.J. Super. 2 (1995).
Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender,
attorney).
Marcy H. Geraci, Deputy Attorney General,
argued the cause for respondent (Peter G.
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
O'HERN, J.
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 (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 "[i]f 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 "[i]t 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
(1981), the Court observed that
[t]he 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.
[Id. at 211-12 (citations omitted).]
See also State v. Crisantos (Arriagas),
102 N.J. 265 (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 (1995). In
State v. Kamienski,
254 N.J. Super. 75 (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 (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.See footnote 1
Defendant relies on State v. Peterson,
181 N.J. Super. 261
(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 (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 guilty of aggravated arson.
[Emphasis added.]
Not until much later in the instructions did the trial court
charge the elements of accomplice liability:
The state's theory here, ladies and
gentlemen, is not that [defendant] was the
person who actually set the fire, but he
aided and abetted Mr. Jenkins [the accused
principal]. A person is an accomplice of
another person in the commission of a crime
when with the purpose of promoting or
facilitating the commission of that crime
that person aides [sic], agrees or attempts
to aid such other person in planning or
committing it.
After further instructions, the court excused the jury to deliberate. Shortly after beginning deliberations, the jury sent in a note requesting further instruction. The note stated simply: "[Y]our Honor please inform us of the law for count two," the aggravated arson count. When the court showed that request to counsel, the prosecutor immediately commented that "it may have been a little confusing" to instruct the jurors first on the responsibility for the substantive crime of aggravated arson as a principal, and then later to instruct them on accomplice
liability. The State therefore asked the trial court to "focus
on" defendant being charged as an aider and abetter when
instructing the jurors anew on aggravated arson. Defense counsel
argued, however, that the jury "didn't ask for [the] law on
accomplice [liability]," and had only requested the law on
aggravated arson. Defense counsel requested that the trial court
simply reread the charge on aggravated arson. The trial court
agreed and responded that it would give "[j]ust the straight
charge." The jury was brought back and the trial court gave the
following instruction:
[Y]our recent note reads as follows; your
Honor please inform us of the law for count
two. Count two was aggravated arson[.] I
assume that's a repeat of what I told you
initially.
The indictment charges . . . this
defendant with aggravated arson in violation
of a statute which reads in pertinent part as
follows: A person is guilty of aggravated
arson if he starts a fire, whether on his
property or another[']s. Thereby purposely
or knowingly placing any other person in
danger of death or bodily injury, or with the
purpose of destroying a building or structure
of another . . . .
That recharge repeated the full charge on aggravated arson as a
principal and did not include any discussion of accomplice
liability. After the jury was excused for further deliberations,
the prosecutor again argued:
I don't think it is enough to charge after
the fact he's charged as an[] aider and
abettor. I think they have to focus on what
the culpability is [when] we talk about the
defendant[.] [C]learly now it's not the
state's theory never been that this defendant
started the fire.
The trial court responded, "I forgot to tell them to keep that
portion of the charge in connection with the other. Let's bring
them out." The jury was brought in and given the following brief
instruction:
I neglected to tell you something. Although
you asked and I did instruct you as to count
two aggravated arson, you have to keep that
charge together with my entire charge, when
you go back in to deliberate. Want to be
sure you understood that. Thank you. You
may return.
On further reflection, the court thought that the jury may have been confused because it had incorrectly charged the jury initially that defendant could be found guilty of arson for acting "recklessly." N.J.S.A. 2C:17-1b does allow for an arson conviction based on reckless conduct; however, this case did not involve recklessness. The prosecutor disagreed, arguing that more likely the jury was confused about whether it was to determine defendant's culpability for aggravated arson as a principal or as an accomplice. The prosecutor believed that the court should wait to see if the jury requested clarification. The court, however, decided to recall the jury a third time to give it further instructions. The new instruction again did not mention accomplice liability, but instead focused on the fact that the charge of aggravated arson involved either purposeful or knowing conduct, rather than recklessness. The court again excused the jury. Soon thereafter, the jury returned with its verdict: guilty of second-degree conspiracy to commit aggravated
arson; not guilty of second-degree aggravated arson; not guilty
of three counts of murder; guilty of three counts of felony
murder; and not guilty of third-degree terroristic threats.
That charging sequence undoubtedly led the jury to acquit
defendant of the underlying predicate to a felony murder
conviction. This, then, is not a case like Powell in which
inconsistency suggests that "the jury has not followed the
court's instructions." 469 U.S. at 65, 105 S. Ct. at 477, 83 L.
Ed.
2d at 469. This jury followed the court's instructions on
arson because it thought that only the one who set the fire could
be guilty of arson; it followed the court's instructions on
felony-murder but those instructions misled the jurors. The
jury, in short, was led down the wrong path. The jurors had
erroneously believed that defendant could not be convicted of
aggravated arson unless he set the fire himself. That is
evidenced by their acquittal on arson. They acquitted defendant
of the aggravated arson charge after finding that he was not a
principal. However, the jurors believed that defendant was
guilty of conspiracy to commit aggravated arson, as clearly
indicated by their finding of guilt on that count. Thus, they
must have concluded the conspiracy to commit aggravated arson
would suffice as the predicate felony to the felony-murder
charge. This was the trial court's understanding of the verdict,
because it believed that the conspiracy count could form the
predicate for felony murder. It stated "the fact that there was
a conviction of the conspiracy to commit arson . . . in itself
would be sufficient to be the predicate for [the felony murder
counts]."
We know that the substantive crime of conspiracy is not a
predicate offense for felony murder. See N.J.S.A. 2C:11-3(3)
(listing predicate felonies). However, the charge did not
explain that. Although the court explained to the jury that
defendant could be guilty of conspiracy without being guilty of
aggravated arson, it failed to explain that defendant could not
be guilty of felony murder without also being guilty as an
accomplice. The felony murder charge required that the jurors
first find that defendant was "engaged in the commission of
aggravated arson" (emphasis added) for the jurors to convict of
felony murder. Had the jury understood that conspiracy to commit
arson could not be a predicate felony for the felony murder
charge, it could not have convicted defendant of felony murder
since it did not convict him as a principal.
The counter-argument, that had the jury properly understood
the accomplice charge then it would have convicted defendant,
would require us to rewrite the verdict. True, the jurors might
have convicted defendant as an accomplice to arson and perhaps
they would have convicted defendant if otherwise charged, but we
cannot substitute our interpretation of the verdict for the
jury's own. The jury simply did not convict defendant of arson.
It is "the nondelegable and nonremovable responsibility of the
jury to decide" the question of guilt or innocence in accordance
with the instructions given to it. Ingenito, supra, 87 N.J. at
211. The question is not whether a theory of guilt may be spelt
out of a record, but whether guilt on that theory has been found
by a jury. State v. Schmidt,
110 N.J. 258 (1988).
The proper focus is on whether the jurors validly found
defendant guilty of felony murder. The sequence of events here
leads to one conclusion: the jury undoubtedly relied upon an
improper predicate felony, and thus did not properly convict
defendant; it did not exercise lenity. A verdict based on such
an improper predicate cannot stand.
This, then, is an idiosyncratic case. It is not a case in
which the jury having "properly reached its conclusion on the
compound offense . . . then through mistake, compromise, or
lenity, arrived at an inconsistent conclusion on the lesser
offense." Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476, 83
L. Ed.
2d at 468. It is a case in which the inconsistency in the
verdicts is undoubtedly due to the jury's erroneous belief that
it could convict defendants of felony murder based on the
conspiracy count. Although the jury might well have convicted
the defendant of aggravated arson as an accomplice, it did not do
so for reasons acknowledged by the prosecution to be related to
the sequence of the charge and recharge on aggravated arson.
This problem will most likely never arise again.
This is the first case in our experience in which we would
be asked to uphold a felony murder conviction when a jury has
acquitted a defendant of the underlying predicate felony. In
felony-murder cases, courts should instruct juries that they may
not convict a defendant of felony murder unless they convict the
defendant of the underlying offense that is a predicate to the
felony-murder conviction. That offense need not be a completed
felony. The felony-murder statute allows a felony-murder
conviction when the actor "is engaged in the commission of, or an
attempt to commit" one of the underlying felonies. N.J.S.A.
2C:11-3a(3) (emphasis added). In some cases, therefore, the
predicate might consist of an attempt, for example, an attempt to
commit the felony of rape. In cases of completed offenses, such
as the one in this case, a court should instruct a jury that it
should not convict a defendant of felony murder unless it
convicts the defendant of the underlying felony.See footnote 2 We request
that our Committee on Model Criminal Jury Charges consider any
needed revisions of the Model Charge.
To sum up, this case is not about speculation as to the reasons for the inconsistent verdict but, rather, about a misleading charge that led to a verdict not permitted under our law. Our holding in this case does not carve out an exception to the Dunn/Powell rule; the Dunn/Powell rule does not apply in the circumstances of this case. The Dunn/Powell rule does not sanitize other trial errors. In its brief to the Supreme Court in Powell, the United States emphasized that "there was [not] any defect or unfairness in the trial proceeding."
In this case there was. The unusual sequence in the charge on aggravated arson explains why the jury did not convict defendant as an accomplice to aggravated arson. The conviction of conspiracy to commit aggravated arson may not serve as the predicate to a felony-murder conviction. As noted, the defendant has been convicted of second-degree conspiracy to commit aggravated arson. He has an extensive record and may be sentenced as a persistent offender for that unmerged conviction. N.J.S.A. 2C:44-3a.
The judgment of the Appellate Division upholding the conviction of three counts of felony murder is reversed. The previously merged conviction of second-degree conspiracy to commit aggravated arson is remanded for resentencing.
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.
SUPREME COURT OF NEW JERSEY
A- 1 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROOSEVELT GREY,
Defendant-Appellant.
COLEMAN, J., dissenting in part and concurring in part.
The Court purports to adopt Dunn-Powell, but to avoid its
application to the present case, the Court holds that because the
jury convicted defendant of felony murder without convicting him
of the predicate felony of aggravated arson that was charged in
the indictment, "the jury undoubtedly relied upon an improper
predicate felony." Grey, supra, ___ N.J. at ___ (slip op. at
16). To support that conclusion, the Court speculates that
because the jury found defendant guilty of conspiracy to commit
aggravated arson, "they must have concluded the conspiracy to
commit aggravated arson would suffice as the predicate felony to
the felony-murder charge." Id. at 14. The Court further
speculates that because of an unspecified "sequence of events . .
. the jury . . . did not properly convict defendant; it did not
exercise lenity." Id. at 16.
The few jurisdictions that have not followed Dunn-Powell
have carved out exceptions for compound-felony cases. No
jurisdiction has failed to apply Dunn-Powell based solely on
speculations about why the jury reached inconsistent verdicts.
Indeed, this Court has consistently adjured lower courts not to
speculate about why a jury reached a certain result. Today, the
Court has chosen to ignore its well-established law to reach a
result that not even counsel for the defendant has urged.
I dissent from the Court's holding, not only because it is
not grounded in the facts or the law, but because "[t]he route to
[the Court's holding] converts . . . the Court of last resort
. . . to some sort of super rescue-mission." Whitfield v.
Blackwood,
101 N.J. 500, 501 (1986) (Clifford, J., concurring).
Based on the Dunn-Powell sufficiency of the evidence standard, I
would affirm the judgment of the Appellate Division.
The Court's conclusion that the felony-murder convictions
were based on the jury using conspiracy to commit arson as the
predicate felony was soundly rejected by the Appellate Division.
Indeed, the record discloses that the jury was never instructed
that it could find defendant guilty of felony murder based on his
liability as a co-conspirator to commit aggravated arson. Absent
such instruction, I find no basis to conclude that the jury used
conspiratorial liability under N.J.S.A. 2C:2-6b(4) to find
defendant guilty of the felony murders.
In this appeal, defendant contends that the jury's acquittal
on the charge of aggravated arson constitutes the equivalent of a
finding by the jury that the State failed to prove an essential
element of felony murder. According to defendant, he was merely
a bystander who "undertook no action" in response to Jenkins's
request that he act as the lookout. Thus, defendant implies the
jury's acquittal must have been based on its conclusion that he
was not an accomplice in the aggravated arson, and therefore, the
felony-murder convictions must be vacated.
The State responds that defendant's acquittal of aggravated
arson does not invalidate the felony-murder convictions. The
State asserts that New Jersey has embraced a test, followed in
the majority of reported decisions in this State, under which
inconsistent verdicts may stand when it can be said that they may
be the result of a jury's exercise of its power, but not right,
of lenity or nullification. The State also asserts that an
independent review of the sufficiency of the evidence, undertaken
by trial and appellate courts, protects a criminal defendant from
jury error. The State argues, therefore, that the inquiry here
should be limited to whether defendant's convictions for felony
murder were supported by sufficient evidence to permit a rational
fact finder to find beyond a reasonable doubt that defendant, as
an accomplice, "engaged in the commission of" aggravated arson,
and that the deaths resulted therefrom. The State emphasizes
that this inquiry is independent of the jury's determination on
the charge of aggravated arson.
To establish that defendant was guilty of the three felony
murders, the State had to prove that defendant was vicariously
liable for the deaths of three people caused by Jenkins setting
fire to 19 Vanderpool Street. Felony murder is an absolute
liability offense. State v. Martin,
119 N.J. 2, 22 (1989).
Nonetheless, the State was required to prove the elements of
aggravated arson and establish that the deaths resulted as "a
probable consequence of" the actor's commission of the aggravated
arson. Id. at 25, 27 (relying on N.J.S.A. 2C:2-3e).
Aggravated arson, the predicate felony involved, is defined
as starting a fire on property owned by the actor or another
"[t]hereby purposely or knowingly placing another person in
danger of death or bodily injury; or . . . [w]ith the purpose of
destroying a building or structure of another." N.J.S.A. 2C:17-1a(1), (2).
Although the trial court referred to a principal's criminal
liability when defining the elements of an aggravated arson, the
jury was instructed that the State sought to impose vicarious
liability on defendant for the aggravated arson and homicides
only as an accomplice. Pertinent to this case, accomplice
liability is defined as follows:
b. A person is legally accountable for the
conduct of another person when:
(3) He [or she] is an accomplice of such
other person in the commission of an
offense . . . .
c. A person is an accomplice of another
person in the commission of an offense if:
(1) With the purpose of promoting or
facilitating the commission of the offense;
he [or she]
(b) Aids or agrees or attempts to aid such
other person in planning or committing it . . . .
[N.J.S.A. 2C:2-6.]
The jury was properly instructed pursuant to that statute, and it
is presumed that the jury followed the court's instructions.
State v. Perry,
124 N.J. 128, 166 (1991); State v. Manley,
54 N.J. 259, 270 (1969).
Viewing the State's evidence in its entirety, unlike the
majority members of this Court, I find no basis to conclude that
defendant's convictions for felony murder should be vacated. A
reasonable jury could have found that defendant participated in
the commission of aggravated arson as an accomplice. Defendant
admitted to purposely aiding Jenkins set fire to the house by
acting as a "look out" while Jenkins entered the house with a can
that defendant knew contained gasoline. Explaining why he agreed
to be a look out, defendant described himself as a "follower"
involved "in the drug game." Defendant aided Jenkins knowing
that Jenkins intended to start the fire because Jenkins told
defendant that he was going to burn Bellinger out of the house.
Furthermore, defendant delivered that threat to members of
Bellinger's family. Thus, there was overwhelming credible
evidence to support a finding that defendant was guilty as an
accomplice of aggravated arson and felony murders beyond a
reasonable doubt.
Despite the overwhelming evidence that defendant aided
Jenkins in the commission of aggravated arson, the jury found
defendant not guilty of that predicate offense. The conclusion
is inescapable that the verdicts of not guilty of aggravated
arson and guilty of felony murder in this case are inconsistent.
Unlike the majority, I do not believe that because the
inconsistent verdicts in this case may be idiosyncratic under the
decisional law of this State, a guilty person should go free on
the charges of felony murder.
My approach to deciding whether the inconsistent verdicts in this case should be permitted requires a determination of whether the convictions for felony murder are irrationally inconsistent with the jury's acquittal on the predicate felony. An irrationally inconsistent verdict is one that is not reasonably supported by the evidence presented during the trial. Although various panels in the Appellate Division have been somewhat divided over what standard should inform the decision, the division is not nearly as sharp as defendant suggests. My conclusion that the federal rule should be adopted "gains perspective from a detailed examination of the cases that have
considered various applications of the" rule. Hovbilt, Inc. v.
Township of Howell,
138 N.J. 598, 606 (1994).
The federal rule was established over one-half century ago.
In Dunn v. United States,
284 U.S. 390,
52 S. Ct. 189,
76 L. Ed. 356 (1932), the United States Supreme Court held that a criminal
defendant convicted by a jury on one count of an indictment may
not attack that conviction simply because it is inconsistent with
the jury's verdict of acquittal on another count. Id. at 393-94,
52 S. Ct. at 190-91, 76 L. Ed. at 358-59.
The defendant in Dunn was indicted on three counts of
violations of federal liquor laws. Id. at 391, 52 S. Ct. at 189,
76 L. Ed. at 358. The first count charged the defendant with
maintaining a common nuisance by keeping intoxicating liquor for
sale at a certain place. Ibid. The second and third counts
alleged unlawful possession of the liquor and unlawful sale of
the liquor respectively. Ibid. The same evidence was relied on
to establish all three counts. Id. at 392, 52 S. Ct. at 189, 76
L. Ed. at 358. The jury convicted the defendant of the first
count and acquitted him of the second and third counts. Ibid.
The Supreme Court rejected the defendant's claim that he was
entitled to have his conviction vacated because of inconsistent
verdicts. Id. at 393-94, 52 S. Ct. at 190-91, 76 L. Ed. at 358-59. Justice Holmes was brief and to the point:
Consistency in the verdict is not
necessary. Each count in an indictment is
regarded as if it was a separate indictment.
. . .
"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 speculation or inquiry into such
matters.
[Ibid. (citations omitted).]
Fifty-two years after Dunn was decided, the issue of inconsistent verdicts was revisited in United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed.2d 461 (1984). In Powell, the Ninth Circuit reversed the defendant's conviction on the compound offense of using a telephone to commit and facilitate certain predicate felonies because the jury had acquitted the defendant of the predicate felonies. United States v. Powell, 719 F.2d 1480, 1481 (9th Cir. 1983), rev'd, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed.2d 461 (1984). The Ninth Circuit acknowledged that it "follows the Dunn rule," id. at 1480, but then did precisely what the majority has done in the present case: it viewed the case before it as an exception to Dunn. Id. at 1481. The court concluded, as has the majority in the present case,
that the conviction on the compound offense could not stand in
light of the acquittal on the predicate felony. Ibid.
The Ninth Circuit relied in part on the Third Circuit's
decision in United States v. Hannah,
584 F.2d 27 (3d Cir. 1978).
Like the defendant in Powell, Hannah was convicted of using a
telephone to facilitate a felony and was acquitted of the
underlying felony. Id. at 28. The Third Circuit affirmed the
trial court's directed verdict of acquittal on the telephone
facilitation charge. Ibid. Focusing on the "interdependent"
nature of the counts charged in the indictment, just as the
majority has done today, the court concluded that the reasoning
of Dunn was inapplicable:
As has been previously observed, because
of the interdependent Count III-Count I
theory presented by the government at trial,
we cannot conclude that "[e]ach count in
[this] indictment is regarded as if it was a
separate indictment." . . . In Dunn . . . the
several counts each constituted a discrete
offense. This case, however, was presented
to the jury on a very limited basis: that
the "acts constituting a felony" under §
843(b) in Count III were the very same acts
that constituted the conspiracy alleged in
Count I. Because the jury found Hannah not
guilty of conspiracy, the felony relied upon
by the government to satisfy the felony
requirement of § 843(b), the government's
case in Count III was insufficient as a
matter of law. Accordingly, we will not
apply the permissible inconsistent verdict
rule to reinstate Hannah's conviction.
[Id. at 30 (citations omitted).]
In a unanimous decision authored by Justice Rehnquist and joined by Chief Justice Burger and Associate Justices Brennan,
White, Marshall, Blackmun, Powell, Stevens, and O'Connor, the
United States Supreme Court in Powell reversed the Ninth Circuit,
reaffirmed Dunn, and expressly rejected Hannah and other cases in
which courts had sought to carve out exceptions to Dunn based on
inconsistent verdicts on compound offenses. Powell, supra, 469
U.S. at 64-67, 105 S. Ct. at 476-78, 83 L. Ed.
2d at 468-70. The
Court stated:
We believe that the Dunn rule rests on a
sound rationale . . . . As the Dunn Court
noted, where truly inconsistent verdicts have
been reached, "[t]he most that can be said .
. . 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." . . . [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. But in such situations . . . 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.
. . . [T]he possibility that the inconsistent
verdicts may favor the criminal defendant as
well as the Government militates against
review of such convictions at the defendant's
behest. This possibility is a premise of
Dunn's alternative rationale--that such
inconsistencies often are a product of jury
lenity. . . .
The burden of the exercise of lenity falls
only on the Government, and it has been
suggested that such an alternative should be
available for the difficult cases where the
jury wishes to avoid an all-or-nothing
verdict. Such an act is, as the Dunn Court
recognized, an "assumption of a power which
[the jury has] no right to exercise," but the
illegality alone does not mean that such a
collective judgment should be subject to
review. The fact that the inconsistency may
be the result of lenity, coupled with the
Government's inability to invoke review,
suggests that inconsistent verdicts should
not be reviewable.
We also reject, as imprudent and
unworkable, a rule that would allow criminal
defendants to challenge inconsistent verdicts
on the ground that in their case the verdict
was not the product of lenity, but of some
error that worked against them. Such an
individualized assessment of the reason for
the inconsistency would be based either on
pure speculation, or would require inquiries
into the jury's deliberations that courts
generally will not undertake. . . . Courts
have always resisted inquiring into a jury's
thought processes. [T]hrough this deference
the jury brings to the criminal process, in
addition to the collective judgment of the
community, an element of needed finality.
[Ibid. (citations omitted) (emphasis added)
(footnote omitted).]
To summarize, the Powell Court concluded that inconsistent
verdicts in criminal trials should be insulated from review for
two related reasons. First, the inconsistency may be the result
of jury mistake, compromise, lenity, or some unspecified error
that worked against a defendant. Second, due to double jeopardy
principles, the government is unable to invoke review of an
acquittal despite error, compromise, or lenity.
That a jury possesses the power to acquit for impermissible
reasons is clear. See, e.g., United States v. Dotterweich,
320 U.S. 277, 279,
64 S. Ct. 134, 135,
88 L. Ed. 48, 50-51 (1943)
("Whether the jury's verdict was the result of carelessness or
compromise . . . is immaterial. Juries may indulge in precisely
such motives or vagaries."); Dunn, supra, 284 U.S. at 393, 52 S.
Ct. at 190-91, 76 L. Ed. at 359.
That the jury's power to acquit is generally unreviewable is
also clear. Four years prior to Powell, the United States
Supreme Court discussed the government's inability to invoke
review of an acquittal in Standefer v. United States,
447 U.S. 10,
100 S. Ct. 1999,
64 L. Ed.2d 689 (1980). The issue in
Standefer was whether the doctrine of nonmutual collateral
estoppel mandated reversal of a conviction for aiding and
abetting in the commission of a federal offense where the named
principal had been previously acquitted of the offense.
Standefer was convicted of paying for certain vacation trips
taken by an Internal Revenue Service (IRS) official who had been
acquitted in an earlier trial of accepting unlawful compensation
in connection with the trips. Id. at 12, 100 S. Ct. at 2002, 64
L. Ed.
2d at 693. Standefer claimed that the government should
have been barred from relitigating whether the IRS official had
accepted the gifts. Id. at 13, 100 S. Ct. at 2002, 64 L. Ed.
2d
at 694. This issue was an element of the charges against the
defendant. Ibid. The Supreme Court disagreed. Chief Justice
Burger, writing for a unanimous court, explained:
[I]n a criminal case, the Government is often
without the kind of "full and fair
opportunity to litigate" that is a
prerequisite of estoppel. . . . [The
prosecution] is prohibited from being granted
a directed verdict or from obtaining a
judgment notwithstanding the verdict no
matter how clear the evidence in support of
guilt; it cannot secure a new trial on the
ground that an acquittal was plainly contrary
to the weight of the evidence; and it cannot
secure appellate review where a defendant has
been acquitted.
The absence of these remedial procedures
in criminal cases permits juries to acquit
out of compassion or compromise or because of
"`their assumption of a power which they had
no right to exercise, but to which they were
disposed through lenity.'" [Dunn v. United
States,
284 U.S. 390, 393,
52 S. Ct. 189,
190,
76 L. Ed.2d 356, 359 (1932) (quoting
Steckler v. United States,
7 F.2d 59, 60 (2d
Cir. 1925)).] It is of course true that
verdicts induced by passion and prejudice are
not unknown in civil suits. But in civil
cases, post-trial motions and appellate
review provide an aggrieved litigant a
remedy; in a criminal case the Government has
no similar avenue to correct errors. Under
contemporary principles of collateral
estoppel, this factor strongly militates
against giving an acquittal preclusive
effect.
[Standefer, supra, 447 U.S. at 22-23, 100 S.
Ct. at 2007, 64 L. Ed.
2d at 699-700
(citations omitted).]
Powell and Standefer presented similar arguments and attempted to persuade the Court that, in light of their acquittals on charges based on essentially the same facts, principles akin to collateral estoppel precluded their convictions. The Powell Court expressly rejected that argument, as well as the alternative argument that the acquittal on the predicate offense necessitated a finding of insufficient evidence
on the compound offense. Powell, supra, 469 U.S. at 67-68, 105
S. Ct. at 478, 83 L. Ed.
2d at 470-71. The Court provided:
[R]espondent's argument that an acquittal on
a predicate offense necessitates a finding of
insufficient evidence on a compound felony
count simply misunderstands the nature of the
inconsistent verdict problem. Whether
presented as an insufficient evidence
argument, or as an argument that the
acquittal on the predicate offense should
collaterally estop the Government on the
compound offense, the argument necessarily
assumes that the acquittal on the predicate
offense was proper--the one the jury "really
meant." This, of course, is not necessarily
correct; all we know is that the verdicts are
inconsistent. The Government could just as
easily--and erroneously--argue that since the
jury convicted on the compound offense the
evidence on the predicate offense must have
been sufficient. The problem is that the
same jury reached inconsistent results; once
that is established principles of collateral
estoppel--which are predicated on the
assumption that the jury acted rationally and
found certain facts in reaching its verdict--are no longer useful.
[Ibid.]
The Dunn-Powell rule contains its own protective mechanism
to guard against improper verdicts. A criminal defendant "is
afforded protection against jury [or judge] irrationality or
error by the independent review of the sufficiency of the
evidence undertaken by the trial and appellate courts." Powell,
supra, 469 U.S. at 67, 105 S. Ct. at 478, 83 L. Ed.
2d at 470.
That protective mechanism was summarized as follows:
Sufficiency-of-the-evidence review involves
assessment by the courts of whether the
evidence adduced at trial could support any
rational determination of guilt beyond a
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. We do not believe
that further safeguards against jury
irrationality are necessary.
[Ibid. (emphasis added) (citations omitted).]
Analytically, the Dunn-Powell sufficiency-of-the-evidence
standard is similar to that articulated in State v. Reyes,
50 N.J. 454, 458-59 (1967), for a motion for a directed verdict of
acquittal at the close of all the evidence. See R. 3:18-1. The
test to apply when challenging the sufficiency of the evidence is
whether, viewing the State's evidence in its
entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as
well as all of the favorable inferences which
reasonably could be drawn therefrom, a
reasonable jury could find guilt of the
charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967); accord State v. Brown, 80 N.J. 587, 591 (1979) (citation omitted); see also State v. C.H., 264 N.J. Super. 112, 128 (App. Div.) (holding that "when the motion is made at the conclusion of the State's case, the court is not to review the evidence presented by defendant"), certif. denied, 134 N.J. 479 (1993); State v. Johnson, 274 N.J. Super. 137, 156-57 (App. Div.) (applying Reyes standard to determine how motion for acquittal should be decided), certif.