State v. Grey , 147 N.J. 4 ( 1996 )

The opinion of the Court was delivered by

O’HERN, J.

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-la. 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:ll-3a(3).

I

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 teiToristic threats.

Grey and Jenkins were tried separately. The jury convicted Grey of second-degree conspiracy to commit aggravated arson and three counts of felony murder, but found him not guilty of murder, second-degree aggravated arson, or third-degree terroristic threats.

Grey moved to set aside the felony-murder verdicts. He argued that the jury verdicts were inconsistent, because he was convicted of felony murder without being convicted of the predicate felony of aggravated arson. The State countered that the proof required for accomplice liability was essentially the same as that for the substantive crime of conspiracy to commit aggravated arson. Thus, the same conduct was required for conviction as either an accomplice or a coconspirator, thereby establishing the predicate for the felony murder convictions.

The State further argued that the inconsistent verdicts were the result of the jurors’ confusion about the trial court’s charge, which seemed to imply that Grey could be guilty of aggravated arson only if he acted as a principal, meaning that he alone or in concert with Jenkins actually set fire to the house. In any event, the State contended, New Jersey permits juries to hand down inconsistent verdicts.

The trial court denied Grey’s motion. It sentenced Grey to concurrent terms of forty-five years of imprisonment with thirty years of parole ineligibility on the three felony murder counts. It merged the conspiracy conviction with the first felony murder conviction.

On appeal, the Appellate Division affirmed the conviction and sentence. The court reasoned that consistent verdicts are not required by New Jersey law. It found that a reasonable jury could have concluded that Grey had aided Jenkins in the commission of arson and thus be responsible for the felony-murder as an accomplice, but nevertheless could have declined to convict Grey of aggravated arson due to compromise, mistake, or lenity. State v. Grey, 281 N.J.Super. 2, 656 A.2d 437 (App.Div.1995). We granted defendant’s petition for certification, limited to the issue of inconsistent verdicts. 142 N.J. 452, 663 A.2d 1359 (1995).

II

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, 432 A.2d 912 (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, 432 A.2d 912 (citations omitted).]

See also State v. Crisantos (Arriagas), 102 N.J. 265, 508 A.2d 167 (1986) (stating criminal jury may return illogical or inconsistent verdicts that would not be tolerated in civil trials). So long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt, such verdicts are normally permitted. State v. Petties, 139 N.J. 310, 654 A.2d 979 (1995). In State v. Kamienski, 254 N.J.Super. 75, 603 A.2d 78 (App.Div.), certif. denied, 130 N.J. 18, 611 A.2d 656 (1992), the court found that an acquittal of the charge of conspiracy to rob or to murder did not legally preclude a conviction for murder and felony murder. The court reasoned that a jury could find accomplice liability independent of whether a conspiracy existed. And in State v. Mangrella, 214 N.J.Super. 437, 519 A.2d 926 (App.Div.1986), certif. denied, 107 N.J. 127, 526 A.2d 194 (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 offense of theft because the acquittal did not preclude finding all the elements necessary for a burglary conviction.¹

Defendant relies on State v. Peterson, 181 N.J.Super. 261, 437 A.2d 327 (App.Div.1981), certif. denied, 89 N.J. 413, 446 A.2d 144 (1982), which qualified the general rule of acceptance of inconsistent verdicts by stating that unless inconsistent verdicts preclude the establishment of an element of an offense, an acquittal does not affect the validity of a conviction supported by sufficient evidence. However, Peterson relied in part on the reasoning of United States v. Hannah, 584 F.2d 27 (3d Cir.1978), which was later disapproved in Powell. In State v. Burnett, 245 N.J.Super. 99, 584 A.2d 268 (App.Div.1990), the court rejected the Peterson rule that an acquittal on one offense that precludes the finding of one or more elements of a second offense invalidates a conviction on the second offense because it believed that this Court would apply the doctrine of unreviewability even in such circumstances.

Ill

The DunnfPowell 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 tidal 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 stalling 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 stalled afire____

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: “[Yjour 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 “Q]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____

[Emphasis added.]

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[J [CJlearly 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-lb 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, 88 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:11-3a(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, 432 A.2d 912. 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, 540 A.2d 1256 (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 defendant 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.² We request that our Committee on Model Criminal Jury Charges consider any needed revisions of the Model Charge.

IV

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, 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.

V

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.

1 State v. Hawkins, 178 N.J.Super. 321, 428 A.2d 1322 (App.Div.), certif. denied, 87 N.J. 382, 434 A.2d 1066 (1981), a pre-Code case, reversed the conspiracy conviction of a defendant when his two coconspirators were acquitted. The court reasoned that when a jury finds that A did not conspire with B, that finding negates the possibility of the same jury finding that B conspired with A. Such a verdict "defies an explanation." Id. at 323, 428 A.2d 1322. Of course, under the Code, it is now possible to convict only one person of conspiracy. N.J.S.A. 2C:5-2.

2 In State v. Harris, 141 N.J. 525, 662 A.2d 333 (1995), we noted in the context of capital sentencing, that sometimes there may be multiple underlying felonies and that a jury need only be told that it must unanimously agree that the accused has committed one of the alleged felonies.