Opinion
I.D. No. 0904022422A.
Submitted: March 3, 2010.
Decided: March 29, 2010.
On Defendant's Motion for Judgment of Acquittal. DENIED.
Martin B. O'Connor, Esquire, Cynthia L. Faraone, Esquire, Department of Justice, Wilmington, Delaware, Attorneys for the State.
Jan A. T. van Amerongen, Esquire, Wilmington, Delaware, Attorney for Defendant.
Dear Counsel:
INTRODUCTION
Defendant, Javon Lemons, was tried on charges of Murder First Degree, Possession of a Firearm During the Commission of a Felony, and Conspiracy First Degree stemming from the murder of Michael Anderson. The State's theory of the case was that Mr. Anderson insulted Defendant's friend, Eric Branch, and, together, Defendant and Eric Branch followed Mr. Anderson until Defendant shot and killed Mr. Anderson.
Following a jury trial in this Court that concluded on February 2, 2010, Defendant was found guilty of only Conspiracy First Degree. Defendant filed the instant motion for judgment of acquittal on February 15, 2010. The only issue presented by Defendant's motion is whether the State adduced sufficient evidence at trial to prove that Defendant was guilty of Conspiracy First Degree beyond a reasonable doubt.
After reviewing the testimony presented at trial, this Court has determined that the State presented sufficient evidence to the jury during the trial such that the jury was able to evaluate the evidence and determine that Defendant was guilty of Conspiracy First Degree beyond a reasonable doubt. Accordingly, Defendant's motion for judgment of acquittal is DENIED.
FACTS and PROCEDURAL HISTORY
On February 2, 2010, Defendant was found guilty of Conspiracy First Degree stemming from the murder of Michael Anderson. The evidence at trial established that Mr. Anderson and his friend, Jerome Owens, were walking northbound on South Van Buren Street when Mr. Anderson bumped into Defendant's friend, Eric Branch.As Mr. Anderson continued to walk north on Van Buren Street, Defendant and Mr. Branch discussed how they were going to respond to Mr. Anderson's sign of "disrespect." A witness, Tashay Briscoe, initially told police that Defendant encouraged Mr. Branch to pursue Mr. Anderson. Soon after the conversation, Defendant and Mr. Branch began to follow Mr. Anderson.
Id.
Ms. Briscoe also told police that just after the confrontation between Mr. Branch and Mr. Anderson, she observed Mr. Branch display a firearm and hand it to Defendant before Defendant and Mr. Branch began to follow Mr. Anderson. Another witness, Tureka Watson, told police that she saw Mr. Branch display the firearm, but that Mr. Branch placed the firearm back in his pocket.
Id.
Id.
As Defendant and Mr. Branch pursued Mr. Anderson north on Van Buren Street, they were joined by another witness, Shaquille Washington. Mr. Washington testified that he heard unrelated gunfire from the southeast. He also testified that Defendant was "right in front" of him and that Mr. Branch was just north of Defendant. Although Mr. Washington told police that Defendant was the only person that could have shot Mr. Anderson based on his location, he did not actually see Defendant kill Mr. Anderson.
Id. at 6.
Id.
Id.
Id.
Another witness, Jamil Biddle, testified in favor of Defendant and stated that Mr. Branch was bumped by Mr. Anderson and that he observed Mr. Branch and Defendant pursue Mr. Anderson. Mr. Biddle told police that he saw Eric Branch shoot Mr. Anderson.
Id.
Id.
Based on this evidence, the jury acquitted Defendant of Murder First Degree and Possession of a Firearm During the Commission of a Felony. However, the jury found Defendant guilty of Conspiracy First Degree.
PARTIES' CONTENTIONS
On February 15, 2010, Defendant filed a motion for judgment of acquittal. Defendant argues that the State failed to adduce sufficient evidence at trial to prove a charge of Conspiracy First Degree beyond a reasonable doubt. Defendant asserts that "[t]here is insufficient evidence of any agreement, yet [sic] alone an agreement to intentionally kill the victim." Defendant further argues that "the jury . . . must have relied on speculation and not upon permissible inferences." Finally, Defendant contends that "[i]f Branch (or someone else) committed the shooting, there is no evidence that Mr. Lemons was anything other than present during, or at most, had knowledge of, another's criminal activities."
Op. Br. at ¶ 9.
Id.
Id.
In response, the State argues that there was sufficient evidence to allow a "rational fact finder" to find Defendant guilty of Conspiracy First Degree beyond a reasonable doubt. The State argues that "inconsistent" verdicts are permissible and are an extension of "jury lenity." The State argues that the evidence adduced at trial established that Defendant and Mr. Branch discussed how to respond to Mr. Anderson's sign of "disrespect" and eventually pursued Mr. Anderson. The State contends that this evidence, as well as the evidence that Mr. Branch had a firearm, established that Defendant and Mr. Branch agreed to pursue Mr. Anderson "and that both intended to, together, retaliate against Anderson for his behavior towards Branch, and that one of them brought a firearm up to the location of the shooting." Thus, the State concludes that the jury could "have reasonably concluded that [the] intention was to shoot Michael Anderson and that either co-conspirator in fact did so."
Ans. Br. at 2.
Id. at 3.
Id. at 7.
Id.
DISCUSSION
The only issue presented by Defendant's motion is whether the State adduced sufficient evidence at trial to permit a jury to find Defendant guilty of Conspiracy First Degree beyond a reasonable doubt.Motions for judgment of acquittal are governed by Superior Court Criminal Rule 29. To determine whether to grant a motion for judgment of acquittal, this Court must determine whether the evidence presented, when "viewed in a light most favorable to the prosecution established that a rational fact finder could have found the defendant guilty beyond a reasonable doubt. . . ."
Tilden v. State, 513 A.2d 1302, 1307 (Del. 1986) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).
The conviction at issue in the present motion is Conspiracy First Degree. Pursuant to 11 Del. C. § 513:
A person is guilty of conspiracy in the first degree when, intending to promote or facilitate the commission of a class A felony, the person:
(1) Agrees with another person or persons that they or 1 or more of them will engage in conduct constituting the felony or an attempt or solicitation to commit the felony; or
(2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the felony, and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy.
The Class A felony at issue here was Murder First Degree.
In accordance with this statute, the jury instruction read at trial was as follows:
Javon J. Lemons, on or about the 24th day of April, 2009, in the County of New Castle, State of Delaware, when intending to promote or facilitate the commission of a felony Murder First Degree as set forth in Count I of this Indictment, which is herein incorporated by reference, or an attempt to commit such felony, did agree with Eric Branch that one, the other, or both of them would engage in conduct constituting the felony or an attempt to commit the felony, and one, the other, or both of them did commit an overt act in pursuance of said conspiracy by engaging in conduct constituting Murder First Degree or an attempt to commit Murder First Degree or by committing some other overt act in pursuance of the conspiracy.
Additionally, this Court instructed the jury as specifically requested by Defendant:
You may consider both direct and circumstantial evidence in deciding whether defendant joined the conspiracy, knew of its criminal objective, and intended to further the objective. Evidence which shows the defendant only knew about the conspiracy, or only kept "bad company" by associating with members of the conspiracy, or was only present when it was discussed or when a crime was committed, is not sufficient to prove that defendant was a member of the conspiracy even if the defendant approved of what was happening or did not object to it. Likewise, evidence showing that defendant may have done something that happened to help a conspiracy does not necessarily prove that he joined the conspiracy.
Defendant essentially argues that the State's "theory" that Defendant was the shooter was rejected by the jury and that there was insufficient evidence to establish an agreement to "intentionally kill the victim."
Although Defendant contends there is no evidence of any agreement between Defendant and Mr. Branch, "[a] conspiracy may be shown either by direct evidence . . . or by circumstantial evidence; that is, by facts and circumstances from which the existence of the conspiracy may be inferred." There is no requirement that the agreement between parties to a conspiracy be formal or memorialized. "It is sufficient to show that each of the conspirators had guilty knowledge. If a person, understanding the unlawful character of a transaction, assists in the prosecution thereof in any manner with a view to forwarding the common purpose or scheme, he becomes a conspirator."
State v. Biter, 119 A.2d 894, 898 (Del. Super. 1955).
See State v. Patterson, 2006 WL 1579817, at * 3 (Del. Super.)
Biter, 119 A.2d at 897-98 (emphasis retained).
In the present case, there is sufficient evidence to permit a jury to conclude that Defendant was guilty of Conspiracy First Degree beyond a reasonable doubt. The evidence established that Mr. Anderson "bumped" Mr. Branch. Immediately after the "bump," Mr. Branch began talking to Defendant and, thereafter, Defendant and Mr. Branch began to follow Mr. Anderson.
Additionally, several other witnesses testified that Mr. Branch had a firearm (that he may or may not have given to Defendant) when Defendant and Mr. Branch began to pursue Mr. Anderson.
Although there seems to be no direct evidence that Defendant and Mr. Branch made a formal agreement to murder Mr. Anderson, there is certainly sufficient circumstantial evidence for a jury to infer that Mr. Branch and Defendant discussed retaliating against Mr. Anderson, that Defendant knew of the criminal objective from the presence of the firearm, and that Defendant agreed to aid Mr. Branch when the two set off in pursuit of Mr. Anderson.
Defendant also argues that the testimony of Tashay Briscoe "could not have been believed by the jury in that Mr. Lemons was acquitted of Counts I and II." This argument is not fatal to the State's position because it is possible that the jury sought to show "leniency" in acquitting the Defendant of Counts I and II.
Op. Br. at ¶ 9.
The concept of "jury lenity" has appropriate application in this case. "[T]he controlling standard for testing a claim of inconsistent verdicts is the rule of jury lenity now approved coupled with the sufficiency of evidence standard." Tilden, 513 A.2d at 1307.
[I]nconsistent verdicts-even verdicts that acquit on a predicate offense while convicting on the compound offense-should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.Id.
Finally, any implication by Defendant that the conviction of Conspiracy First Degree is "inconsistent" with the acquittal of the remaining charges is misplaced. In Younger v. State, a jury found the defendant guilty of Conspiracy Second Degree and Assault Third Degree. Notably, for the present case, the defendant in that case was acquitted of Assault Second Degree but found guilty of a conspiracy to commit Assault Second Degree. Although the defendant argued that his acquittal of the underlying felony (Assault Second Degree) should also result in an acquittal of the "overt act" required for Conspiracy Second Degree, the Delaware Supreme Court rejected this argument. The Supreme Court held that:
Younger v. State, 2009 WL 2612520 (Del. 2009).
Id. at * 1.
Id. at * 2-4.
A guilty conspiracy verdict is not always inconsistent with an acquittal on the underlying felony. An overt act in support of a charge of conspiracy need not be a completed crime or even an act that would amount to a substantial step in furtherance of the underlying felony; rather, it "may be any act in pursuance of or tending toward the accomplishment of the conspiratorial purpose." It is not necessary for a defendant to commit the overt act underlying the conspiracy charge. It is sufficient that a co-conspirator committed that overt act. When the only overt act alleged in the indictment is the underlying substantive crime, a defendant's acquittal on this charge negates the overt act element of a conspiracy charge, unless a co-conspirator committed the overt act. When the State has alleged other overt acts, however, acquittal on the underlying substantive crime does not preclude a conspiracy conviction.
Id. at * 2.
The present case is remarkably similar to Younger. Defendant was convicted of Conspiracy First Degree but acquitted of Murder First Degree. Despite this apparent "inconsistency," the conviction of Conspiracy First Degree is proper because all that is necessary for a conviction of Conspiracy First Degree is that an agreement was made between Defendant and Mr. Branch and either Defendant or Mr. Branch took an overt act in furtherance of the conspiracy.
But cf. Johnson v. State, 409 A.2d 1043, 1044 (Del. 1979) (reversing a conviction for conspiracy because "[t]he finding by the Trial Judge that the jury may have believed that the overt act was committed by the defendant's unnamed co-conspirators is irrelevant to the defendant's guilt under this indictment, since there is no allegation that the overt act was performed by any co-defendant."). This Court holds that Johnson is inapplicable here because the State clearly denoted in the indictment that the "overt act" may have been committed by either Defendant or Eric Branch. Additionally, Tilden has modified Johnson's precedential reach:
Tilden stands for the proposition that an acquittal of one predicate count does not automatically require a post-trial judgment of acquittal on a factually-related offense, as Johnson might be read to suggest. . . . we held in Tilden that "[w]hile we decline to expressly overrule Johnson, . . . the controlling standard for testing a claim of inconsistent verdicts is the rule of jury lenity now approved coupled with the sufficiency of evidence standard." Thus, our reconciliation of Tilden-which coupled jury lenity and a sufficiency-of-the-evidence standard-with Johnson-which we declined in Tilden to overrule-is that a multiple-count verdict that includes a weapons charge as the compound offense, even if factually inconsistent, must stand where the verdict reflects jury lenity and where the jury has convicted on a lesser-included felony. In most cases of verdict inconsistency, the facts will be controlled by the Johnson - Tilden principle, and inconsistent verdicts resulting from a not guilty verdict on a predicate charge and a guilty verdict on a compound charge will likely not invalidate the conviction.Priest v. State, 879 A.2d 575, 586-87.
Although this Court will not speculate about how the jury conducted their deliberations, it is possible that, based on the evidence, the jury felt that Defendant agreed to help Mr. Branch and the Mr. Branch took the "overt act" necessary for Conspiracy First Degree by killing Mr. Anderson.
See Younger, 2009 WL 2612520, at * 3 (stating that the evidence "allowed a rational jury to find that one of the co-conspirators committed an overt act in furtherance of [the crime.]").
Accordingly, for all the reasons stated, Defendant's motion for judgment of acquittal is DENIED.