State v. Grey

• Decision Date: 11 December 1996
• Citation: 147 N.J. 4,685 A.2d 923
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Roosevelt GREY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 4

147 N.J. 4

685 A.2d 923

STATE of New Jersey, Plaintiff-Respondent, v. Roosevelt GREY, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 30, 1996.

Reargued Sept. 25, 1996.

Decided Dec. 11, 1996.

Mark H. Friedman, Assistant Deputy Public Defender, for appellant (Susan L. Reisner, Public Defender, attorney).

Marcy H. Geraci, Deputy Attorney General, for respondent (Peter G. Verniero, Attorney General of New Jersey, attorney).

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:17-1a. 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).

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 terroristic threats.

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

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

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

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

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