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Monday, April 13, 2009

04-06-09 State v. Duane Kelly A-3199-05T4

04-06-09 State v. Duane Kelly

A jury convicted defendant of two counts of murder and two
counts of felony murder. The two victims were shot with a .38
caliber gun, which had not been recovered by the time of
defendant's trial. The jury also convicted defendant of first-
degree robbery and unlawful possession of a .40 caliber handgun;
it acquitted him of unlawful possession of a .38 caliber handgun
and possessing both the .38 caliber and the .40 caliber handguns
for an unlawful purpose.

The trial court sua sponte set aside those convictions and
ordered a new trial when a defense witness said she had
committed perjury at defendant's trial. Before the new trial
commenced, the .38 caliber gun was discovered. Defendant was
again convicted of two counts of murder, two counts of felony
murder, and first degree robbery.

We rejected defendant's argument that he could not be
convicted of these murders because the first jury found him not
guilty of possessing the murder weapon and of possessing it for
an unlawful purpose.