Suppose that your kids ask you to celebrate blueberry season in New Jersey by making them a blueberry pie. They walk to the store to buy you supplies but instead of blueberries, they bring home some fresh trout. They insist that you make a blueberry pie using what they brought you.  What do you do?

This admittedly ridiculous scenario is similar to one faced by judges when sentencing defendants in cases when juries return inconsistent verdicts. How is a judge supposed to formulate a logical sentence based on an illogical verdict? Can you logically and fairly sentence a defendant who was found guilty of possessing hollow point bullets when the jury deadlocked on the possession of the gun containing the bullets?

Some assistance has been provided by the Supreme Court of New Jersey’s recent opinion in State v. Tillery, __N.J.__ (June 19, 2019). In Tillery, the defendant was charged with selling firearms on five separate occasions to a cooperating informant, but after a jury trial he was convicted only of second-degree unlawful possession of a weapon, and fourth-degree unlawful disposition of a weapon relating to one of the sales. The jury was unable to reach a verdict regarding the charges related to the other four sales. The State asked the sentencing judge to consider the factual circumstances of the other four sales in sentencing the defendant—even though the charges related to those offenses were pending at the time.

The sentencing judge—who had also presided over the trial of the defendant—found that the defendant’s involvement in the other gun sales had been established at the trial by a preponderance of the evidence. Because a sentencing judge could rely on “reliable and trustworthy” evidence in sentencing a defendant, the judge took the other gun sales into account when sentencing the defendant. The judge found aggravating factors three, six and nine (shocking, I know), granted the State’s motion for an extended term, and sentenced the defendant to 20 years’ incarceration with 10 years’ parole ineligibility pursuant to the Graves Act. The judge then granted the State’s motion to dismiss the remaining open charges. The defendant appealed, and the Appellate Division affirmed.

The New Jersey Supreme Court granted certification and affirmed the defendant’s sentence, but pointed out that the motion to dismiss charges should have been granted before sentencing. The court noted that the sentencing judge presided over the trial and had “the opportunity to evaluate the credibility of witnesses and to assess the evidence presented” relating to the offenses for which the jury was unable to reach a verdict. The court held that “such information may constitute competent, credible evidence on which the court may rely in assessing the aggravating and mitigating factors.” The court also held that, although those charges were dismissed against the defendant immediately after sentencing, sentencing courts should not consider evidence underlying charges that are still pending at the time of sentencing to avoid the possibility of punishing the defendant for the same conduct twice should he or she be re-tried.

Although Tillery did not involve inconsistent verdicts, it is plain to see how the holding will assist judges in such cases. The inconsistent verdict doctrine can be traced to Dunn v. United States, 284 U.S. 390, 393 (1932). In Dunn, the defendant was found guilty of “maintaining a common nuisance” by keeping liquor for sale in his store, but acquitted of possessing and selling the liquor. “Consistency in the verdict is not necessary,” Justice Holmes wrote. “Each count in an indictment is regarded as if it was a separate indictment.” Id. at 393. The United States Supreme Court revisited the doctrine in United States v. Powell, 469 U.S. 57 (1984), where the defendant was convicted of possession of cocaine with intent to distribute but acquitted of possession of cocaine. The Powell court rejected as “imprudent and unworkable” the defendant’s proposal that defendants should be allowed to challenge inconsistent verdicts. Id. at 66. 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.” Id. at 65.

In our criminal justice system, we permit inconsistent verdicts to be returned by a jury because it is beyond our power to prevent them. State v. Banko, 182 N.J. 44, 54 (2004) (where defendant was found guilty of possessing a weapon for an unlawful purpose, but acquitted of the crimes setting forth the unlawful purpose). When the reason for the inconsistent verdicts cannot be determined, courts should not speculate as to whether the verdicts resulted from jury lenity, compromise or mistake. State v. Grey, 147 N.J. 4, 11 (1996) (where the defendant was found guilty of felony murder but acquitted of the predicate felony). An inconsistent verdict will not be disturbed if the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt. Id. at 10.

The holding in Tillery affirms that sentencing judges may consider the conduct underlying the original charges when sentencing a defendant for related convictions, as long as there is “competent, credible evidence” of the dismissed charges. At sentencing, trial courts endeavor to have the fullest information possible concerning the defendant’s life and characteristics. State v. Natale, 184 N.J. 458, 472 (2005). The goal is to provide the sentencing judge with the composite picture of the whole person. It makes sense to consider the facts underlying the original charges to obtain that picture.

Imagine that you are the sentencing judge in the first example of an inconsistent verdict presented here: you are sentencing a defendant who was convicted of possessing hollow point bullets but the jury deadlocked on the charge of possessing the gun containing the bullets. The evidence of the defendant’s guilt at trial was overwhelming. It would be improper to sentence the defendant as if he were walking down the street with loose rounds of ammunition in his pocket when, in fact, he was carrying a dangerous weapon with illegal ammunition. When imposing a sentence on the defendant, the analysis of aggravating and mitigating factors is substantially different if one is allowed to consider facts underlying the deadlocked charges.  Under N.J.S.A. 2C:44-1, the nature of the offense is substantially different, and the defendant’s conduct contemplates serious harm.

The holding of Tillery will also be helpful in cases of clear jury nullification.  Nullification is “the power of the jury to acquit despite not only overwhelming proof of guilt, but despite the jury’s belief, beyond a reasonable doubt, in guilt.” State v. Ragland, 105 N.J. 189, 204–05 (1986). Suppose evidence at trial shows that a defendant was arrested with a handgun while driving a van containing 100 pounds of marijuana. Even though the defendant admits to ownership of the marijuana, the jury deadlocks on that charge—a clear attempt at nullification, perhaps based on changing views toward marijuana. She is convicted only of the handgun possession charge.  When sentencing the defendant, consideration of the reason that the defendant had the handgun—the admitted, illicit trafficking of narcotics—changes the overall nature of the crime from an individual carrying a weapon to a drug dealer carrying a weapon. The sentence for the latter must be more stringent if we are to still have any hope in the adage, “Let the punishment fit the crime.”

Although Tillery allows a sentencing judge to consider the evidence supporting them, judges must take care to ensure that defendants are not sentenced for charges for which he or she was not convicted. The court in Tillery noted that the dismissed charges were not the sole basis—or even the main basis—for finding the aggravating factors in that case. The responsibility also lies with the State to carefully argue why and how these charges are to be considered. But such underlying facts are useful to put certain convictions in context and should not be ignored come sentencing time.

Matthew Hanley is an assistant prosecutor with the Essex County Prosecutor’s Office in Newark.