(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of
the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity,
portions of any opinion may not have been summarized).
Argued January 20, 1999 -- Decided July 7, 1999
COLEMAN, J., writing for a majority of the Court.
The issue in this post-conviction relief (PCR) appeal is whether State v. Anderson,
127 N.J. 191 (1992), in which
the Court held that in a prosecution for perjury the jury must decide the materiality element of the offense, should operate
retrospectively on cases finally decided on direct review prior to the date on which Anderson was decided.
On August 26, 1988, Braynard Purnell fatally stabbed a drug dealer following a dispute over the price of cocaine.
He then hid the victim in some undergrowth in his backyard. On the night of the murder, Purnell's daughter telephoned the
police and reported that someone was trying to break into her house and that “two guys were jumping [her] dad.” Police
responded, spoke with Purnell's daughter, and performed a cursory search of the yard, finding nothing.
During the ensuing police investigation, Purnell reported different versions of the events on the night of the
murder. He initially informed the police that he saw two men fighting in his yard, but when he called to his daughter to call
the police, the men ran off. After he was arrested, however, he admitted that he had been involved in the fight between the
two men.
Purnell voluntarily appeared before the Grand Jury, testifying that he had not first told the police of his
involvement in the fight because he did not wish to incriminate himself. He also informed the Grand Jury that after trying to
chase the two men away, he entered his home through the front door. Purnell's daughter's testimony before the Grand Jury
contradicted that of her father. She testified that rather than entering the house through the front door that evening, she let
him in through the bedroom window.
Based on his testimony before the Grand Jury, Purnell was indicted for perjury, murder, and other offenses. At
trial, defense counsel moved to dismiss the perjury count on the ground that Purnell's statement that he entered the house
through the front door after chasing someone was not material. As prescribed by statute at that time, N.J.S.A. 2C:28-1b, the
trial court determined as a matter of law that Purnell's testimony before the Grand Jury concerning how he reentered the
house was material. Since the trial court determined the element of materiality as a matter of law, the jury was not
informed that materiality was an element of the crime of perjury. Purnell did not object to the trial court's failure to submit
that element to the jury.
After trial, Purnell was found guilty of capital murder, perjury, and other related offenses. He was originally
sentenced to death on the murder conviction and to a five-year consecutive term on the perjury conviction. On direct appeal
to the Supreme Court, Purnell did not challenge the perjury conviction. After vacating the death sentence, the Court
affirmed all of the remaining convictions. Two months after Purnell's direct appeal in the State courts was completed, the
Supreme Court decided Anderson.
Three years after his direct appeals had been concluded, Purnell filed a petition for PCR on a number of grounds,
including a claim that his perjury conviction should be vacated because it was obtained in violation of his constitutional
right to have a jury find each of the elements of the crime of perjury beyond a reasonable doubt. At the PCR hearing, the
trial court determined that Anderson should not be applied retroactively to permit Purnell's collateral attack on his perjury
conviction. The trial court found that the Court's holding in that case would apply only to cases then pending or on appeal,
as opposed to those where all direct appeals had been finally concluded in the Supreme Court. On PCR appeal, the
Appellate Division analyzed the retroactivity issue under both state and federal law and concluded that the Anderson
holding should be applied to Purnell's collateral attack and reversed his perjury conviction.
The Supreme Court granted the State's petition for certification.
HELD: Purnell may not collaterally attack his prior judgment of conviction for perjury by having the new rule announced
in Anderson and Gaudin retroactively applied.
1. Because U.S. v. Gaudin is co-extensive with Anderson, and because federal constitutional protections are implicated,
United States Supreme Court precedents control the scope of retroactivity. Thus, both a state and a federal retroactivity
analysis must be conducted. (pp. 9-11)
2. For a decision to be deemed a new rule of law for retroactivity purposes, there must be a sudden and generally
unanticipated repudiation of a long-standing practice. Because Anderson represents a new rule of law, the Court must
consider which of the three recently rearticulated retroactivity options is appropriate in this case. (pp. 12-13)
3. Where the new rule is designed to enhance the reliability of the factfinding process but the old rule did not substantially
impair the accuracy of that process, courts will not burden the criminal justice system with the PCR applications and retrials
that would result from a fully retroactive application of the new rule. (pp. 13-14)
4. Because the rule prior to Anderson did not substantially impair the truth-finding process, the first prong of New Jersey's
retroactivity test does not support retroactive application of the Anderson rule to defendant's PCR petition. (pp. 14-15)
5. The pre-Anderson rule was firmly entrenched in the law, and the numerous precedents reaffirming the old rule and its
eventual codification establish reliance under the second prong of the retroactivity test. (pp. 15-16)
6. Because there are unknown and potentially a very large number of convictions that would be affected by the retroactive
application of the Anderson decision, retroactive application of that decision to Purnell's PCR petition cannot be supported.
(pp. 16-18)
7. The federal standard for retroactivity is much stricter than the State standard for relief when a defendant seeks to
collaterally attack a prior judgment of conviction. Specifically, under the federal standard, for retroactive application, one
must establish that the rule represents a clear break with the past and involves procedures that implicate the fundamental
fairness of the trial, which is known as structural error. (pp. 21-24)
8. The Gaudin rule is neither a bedrock principle of criminal procedure nor does it involve procedures that implicate the
fundamental fairness of the trial. (pp. 24-27)
9. The decision in respect of the issue of materiality in this case, albeit decided by a judge instead of a jury, was based on
trustworthy evidence in conformity with standards that have been constitutionally approved for more than one-and-a-half
centuries under the same burden of proof standard as would have been used by a jury. The procedural defect involved in
this case does not represent the kind of bedrock procedural element that should be retroactively applied. (pp. 28-29)
Judgment of the Appellate Division is REVERSED.
JUSTICE O'HERN has filed a separate dissenting opinion. In essence, Justice O'Hern believed that when the
functions of judge and jury are incorrectly allocated, the structural integrity of the trial is altered. Thus, he would have
applied the Anderson rule retroactively to Purnell's PCR application .
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI and STEIN join in JUSTICE COLEMAN's
opinion. JUSTICE O'HERN has filed a separate dissenting opinion, in which JUSTICES HANDLER and
POLLOCK join.
SUPREME COURT OF NEW JERSEY
A-
208 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRAYNARD PURNELL,
Defendant-Respondent.
Argued January 20, 1999 -- Decided July 7, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
310 N.J. Super. 407 (1998).
Gerard C. Sims, Jr., Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
On March 16, 1992, this Court changed existing statutory and
decisional law by holding that in a prosecution for perjury the
jury, rather than the judge, must decide the materiality element
of the offense. State v. Anderson,
127 N.J. 191 (1992). The
critical issue raised in this post-conviction relief (PCR) appeal
is whether Anderson should operate retrospectively upon cases
finally decided on direct review prior to the date on which
Anderson was decided. The trial court rejected defendant's PCR
application, ruling that Anderson should not be applied
retroactively to permit a collateral attack upon a judgment of
conviction. The Appellate Division in a published opinion
reversed.
310 N.J. Super. 407, 422-23 (1998). We granted the
State's petition for certification,
156 N.J. 385 (1998), and now
reverse.
In a jury trial defendant was found guilty of capital
murder, hindering his own apprehension by intimidating a witness
into giving a false report, possession of a weapon for an
unlawful purpose, and perjury. Defendant was originally
sentenced to death on the capital-murder conviction and a five
year consecutive term on the perjury conviction. He received
additional sentences for the other non-capital counts. In his
direct appeal to this Court, defendant did not challenge his
perjury conviction. After vacating the death sentence, the Court
affirmed all of the convictions on January 15, 1992. State v.
Purnell,
126 N.J. 518, 547. On March 16, 1992, two months after
defendant's direct appeal in the State's courts was completed,
the Court decided Anderson.
Anderson held that the determination of the element of
materiality in the crime of perjury must be submitted to the jury
in order to satisfy an accused's constitutional right to have a
jury determine beyond a reasonable doubt the existence of each
essential element of the crime.
Three years after defendant's direct appeals had been
concluded, defendant filed a petition for PCR on a number of
grounds, including that his perjury conviction should be vacated
because it was obtained in violation of his Sixth and Fourteenth
Amendment rights under the United States Constitution, as well as
his state constitutional right to have a jury find each of the
elements of the crime of perjury beyond a reasonable doubt. The
facts relied on by both courts below are the same as those
reported in our decision from defendant's direct appeal.
Purnell, supra, 126 N.J. at 525-29. The pertinent facts are as
follows.
On August 26, 1988, defendant fatally stabbed a drug dealer
following a dispute over the price of cocaine. Defendant then
hid the victim in some undergrowth in his backyard. On the night
of the murder, defendant's daughter initially called the police
and reported that “[s]omebody is trying to break in my house and
now two guys are jumping my dad.” Id. at 526. The police
responded immediately, spoke to defendant's daughter, and
performed a cursory search of the backyard. The officers did not
encounter defendant or discover the dead body at that time.
During the ensuing police investigation, defendant reported
different versions of the events on the night of the murder. He
initially informed the police that he saw two men fighting in his
backyard, but when he hollered to his daughter to “call the
police,” the two men ran off. Id. at 528. After he was arrested
and advised of his rights, however, defendant admitted to the
police that he had been involved in the fight between the two
men.
Defendant voluntarily appeared before the Grand Jury and
described the incident with the two men in his backyard. He
told the Grand Jury that at first he had not told the police
about his involvement in the fight because “there's a body
involved in this,” and he was afraid that he might incriminate
himself. Id. at 529. Defendant also informed the Grand Jury
that after trying to chase away the two men in his backyard, he
entered his home through the front door.
Defendant's daughter also testified before the Grand Jury
and gave testimony that contradicted defendant's Grand Jury
testimony. The daughter testified that rather than entering the
house through the front door on the night in question, defendant
knocked on the bedroom window of the house and she let him in
through the bedroom window. At trial, the daughter attempted to
corroborate defendant's version of the events by testifying that
defendant entered the house through the front door. However, the
State impeached the daughter's trial testimony with her Grand
Jury testimony, forcing her to admit that her father asked her to
be let in through the bedroom window of the house on the night in
question.
Based on defendant's testimony before the Grand Jury, he
was indicted for perjury. The perjury count charged:
[O]n December 14, 1988, Braynard Purnell
testified before the Camden County Grand Jury
that on the night of August 26, 1988[,] he
had returned to his house after chasing
someone behind his house and entered through
the front door; whereas, in fact he had
waited, after killing Lawrence Talley, for
the police who had been summoned to the area
by [defendant's daughter], to leave the
scene; he then proceeded to tap on the
kitchen window and instruct [his daughter] to
permit him to climb back into the house
through the bedroom window.
During the trial, defense counsel moved to dismiss the
perjury count on the ground that defendant's statement that he
returned to his home and entered the front door after chasing
someone was not material. However, as prescribed by statute at
that time, N.J.S.A. 2C:28-1b, the trial court determined as a
matter of law that defendant's testimony before the Grand Jury
concerning how he reentered the house on the night of the crime
was material. The court reasoned:
Is it material? Well, if you're attempting
to keep your presence outside the house or
even at the house that night unknown to those
who are investigating . . . a disturbance
outside, then it does become very material.
Because if the Grand Jury believes that he
wasn't there at all, they may not have
indicted him. . . . And I think it thus
becomes material.
Because the trial court determined the element of materiality as
a matter of law, the jury was not informed that materiality was
an element of the crime of perjury. The trial court permitted
the jury to decide the three remaining elements of the perjury
offense: whether (1) the statement was made in an official
proceeding; (2) the testimony was given under oath; and (3) the
statement given or made was actually false. Defendant did not
object to the trial court's failure to submit the element of
materiality to the jury.
At the PCR hearing, the trial court determined that the
Court's decision in Anderson should not be applied retroactively
to permit defendant's collateral attack on his perjury
conviction. The trial court stated:
[W]hile [Anderson] would apply to cases that
were either pending or had been tried but on
appeal, this case . . . had been to the
Supreme Court . . . , and thus, for intents
and purposes of the retroactivity application
the case was concluded . . . . [T]his court
will not retroactively apply Anderson to the
perjury [] conviction in this case.
On defendant's PCR appeal, the Appellate Division applied
the Anderson holding to defendant's collateral attack and
reversed his perjury conviction. Purnell, supra, 310 N.J. Super.
at 422-23. The Appellate Division analyzed the retroactivity
issue under both state and federal law and concluded that
Anderson should be applied retroactively to collateral attacks
made in a PCR application. Id. at 419.
-A-
The State also contends that the failure to have the jury determine the element of materiality in defendant's perjury case was not plain error. The State concludes that any reasonable juror would have found defendant's Grand Jury testimony regarding how he entered the house after the homicide to be material, just as the trial court determined as a matter of law.
Defendant argues that the entire retroactivity issue should be avoided because neither Anderson nor Gaudin represents a new rule of law. He asserts that the state and federal constitutions have always required a jury to decide each element of a criminal offense. Defendant maintains that in the event that a retroactivity analysis is required, we should apply New Jersey's jurisprudence because Anderson was decided first. Finally, defendant argues that even under a dual analysis, he is entitled to complete retroactivity because both Anderson and Gaudin implicate fundamental constitutional rights.
A person commits the crime of perjury if he or she during
the course of “any official proceeding . . . makes a false
statement under oath or equivalent affirmation, or swears or
affirms the truth of a statement previously made, when the
statement is material and he [or she] does not believe it to be
true.” N.J.S.A. 2C:28-1(a). To prove such a charge, the State
must establish four elements: (1) that the defendant made a false
statement; (2) that the statement was material to the proceeding;
(3) that the statement was under oath in an official proceeding;
and (4) that the defendant knew the statement was untrue.
Anderson, supra, 127 N.J. at 198.
Prior to the decision in Anderson, the issue whether a
statement was material was decided by the trial court as a matter
of law. N.J.S.A. 2C:28-1b. Anderson, however, held that the
statutory provision “irreconcilably conflict[ed] with the
constitutional right of an accused to have a jury determine the
existence beyond a reasonable doubt of each essential element of
a crime before he or she is convicted.” Anderson, supra, 127
N.J. at 194. That holding was based on the immense importance of
both the right to a jury trial and the right to due process of
law. Id. at 199-201. Although the decision in Anderson was
grounded in state constitutional law, we recognized that federal
constitutional precedents also supported our conclusion. Id. at
205.
Three years after Anderson was decided, the United States
Supreme Court decided the same issue under federal constitutional
law in Gaudin. The majority in Gaudin reached the same
conclusion under a federal constitutional analysis as we did in
Anderson under our state constitutional analysis. Gaudin,
supra, 515 U.S. at 511, 115 S. Ct. at 2314, 132 L. Ed.
2d at 450.
The Court concluded that the Fifth and Sixth Amendments to the
United States Constitution “require criminal convictions to rest
upon a jury determination that the defendant is guilty of every
element of the crime with which he is charged, beyond a
reasonable doubt.” Id. at 510,
115 S. Ct. 2313, 132 L. Ed.
2d at
449. The Court held that the trial court's refusal to permit the
jury to decide the question of materiality in the defendant's
perjury trial violated his Fifth Amendment right to due process
and his Sixth Amendment right to a jury trial. Id. at 523, 115
S. Ct. at 2320, 132 L. Ed.
2d at 458.
For reasons we will make clear later in this opinion, we
reject defendant's assertion that the entire issue of
retroactivity can be avoided by concluding that Anderson and
Gaudin do not represent a new rule of law. If Anderson were the
only decision requiring a jury to decide the issue of
materiality, we could invoke this Court's inherent power to limit
the retroactive effect of our decisions. State v. Lark,
117 N.J. 331, 334, 339 (1989); State v. Burstein,
85 N.J. 394, 403 (1981).
However, in Gaudin, the United States Supreme Court decided the
same issue we addressed in Anderson. Because Gaudin is co
extensive with Anderson, and because federal constitutional
protections are implicated, "United States Supreme Court
precedents control the scope of retroactivity." Lark, supra, 117
N.J. at 335; see State v. Stever,
107 N.J. 543, 550-52, cert.
denied,
484 U.S. 954,
108 S. Ct. 348,
98 L. Ed.2d 373 (1987).
Consequently, we are required to conduct both a State and a
federal retroactivity analysis involving issues that are "'among
the most difficult' problems that engage the attention of both
federal and state courts.” Fischer v. Canario,
143 N.J. 235, 243
(1996) (internal citations omitted); see State v. Burgess,
298 N.J. Super. 254, 262 (App. Div. 1997), aff'd per curiam,
154 N.J. 181, 184 (1998).
Under New Jersey retroactivity jurisprudence, “the threshold inquiry [is] whether the rule at issue is a 'new rule of law' for purposes of retroactivity analysis.” State v. Afanador, 151 N.J. 41, 57 (1997); State v. Knight, 145 N.J. 233, 249 (1996). If the answer is no, "the retroactivity question never arises and our power to limit the retroactive effect of a decision is not implicated." Ibid.; see Burstein, supra, 85 N.J. at 403. In order for a decision to be deemed a new rule of law for retroactivity purposes, there must be a “sudden and generally unanticipated repudiation of a long-standing practice.” Afanador, supra, 151 N.J. at 58 (quoting State v. Cupe, 289 N.J. Super. 1, 12 (App. Div. 1996)). That is, there must be some “appreciable past from which the [new] rule departs.” Ibid. Both the trial court and the Appellate Division held that Anderson announced a new rule of law. Purnell, supra, 310 N.J. Super. at 415. Indeed, this Court in Anderson stated as much when it acknowledged that it had become "firmly entrenched in the law" based on "the seemingly overwhelming precedent" that in a prosecution for perjury, the trial court, rather than the jury, decided the issue of materiality. Anderson, supra, 127 N.J. at 204. Today, we reaffirm that Anderson represents a new rule of law. Accordingly, we must now decide which of several retroactivity options available to the Court is appropriate in this case under the three-pronged retroactivity test recently rearticulated in Knight, supra, 145 N.J. at 252-58.
First, we ask whether the purpose of the Anderson rule would be advanced by retroactivity. Id. at 251. We note at the outset that there are different classes of purposes that a new rule may advance. At one extreme, a new rule may be intended solely to deter police misconduct. Burstein, supra, 85 N.J. at 406. In such a case, retroactivity would almost certainly be denied because the new rule's deterrent purpose would not be advanced by retroactive application to past misconduct. Ibid. At the other extreme are new rules that “'overcome an aspect of a criminal trial that substantially impairs its truth-finding function' and which [raise] 'serious questions about the accuracy of guilty verdicts in past trials.'” Id. at 406-07 (internal citations omitted). In those cases, given the fundamental constitutional implications, the new rule is often given “complete retroactive effect, regardless of how much the State justifiably relied on the old rule or how much the administration of justice is burdened.” Id. at 407.
In between those two extremes lies a third category of cases “where the new rule is designed to enhance the reliability of the factfinding process but the old rule did not 'substantially' impair the accuracy of that process.”See footnote 11 Id. at 408. In deciding the question of retroactivity with regard to this third category, “[courts] will not burden the criminal justice system with the post-conviction-relief applications [on collateral attack] and retrials that would result from a fully retroactive application of the [new rule].” Knight, supra, 145 N.J. at 258.
The change in Anderson from the prior rule of having the court determine the element of materiality was not intended to enhance the reliability of the fact-finding process. The reliability of judicial determinations of materiality is not questioned. The old rule requiring the court to determine the element of materiality did not substantially impair the truth finding process. Under the old rule, the State was still required to prove the element of materiality beyond a reasonable doubt, albeit to the judge and not the jury. If the old rule had, for example, shifted the allocation of the burden of proof regarding the element of materiality, then that rule substantially would have impaired the truth-finding process. That did not occur before the change in Anderson. Because the rule prior to Anderson did not substantially impair the truth finding process, the first prong of New Jersey's retroactivity test does not support retroactive application of the Anderson rule to defendant's PCR petition.
The second prong of New Jersey's retroactivity test is the degree of reliance placed on the old rule by those who administered it. Id. at 251. This factor is evaluated by assessing whether the old rule was administered in "good faith reliance [on] 'then-prevailing constitutional norms.'" State v. Howery, 80 N.J. 563, 570, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed.2d 424 (1979) (internal citations omitted). The reliability of the old rule was enhanced by a number of precedents reaffirming its validity. State v. Catania, 85 N.J. 418, 447 (1981); Gordon v. State, 48 N.J.L. 611 (E. & A. 1886); State v. Molnar, 161 N.J. Super. 424, 450 (App. Div. 1978), rev'd in part on other grounds, 81 N.J. 475 (1980). Indeed, the reliability of the old rule was augmented by its codification in our Code of Criminal Justice, N.J.S.A. 2C:28-1b. That high degree of reliability persuaded the Court in Anderson to observe that the old rule had "bec[o]me firmly entrenched in the law." Anderson, supra, 127 N.J. at 204. The numerous precedents reaffirming the old rule between 1886 and its codification in the Code in 1978, and that remained viable until Anderson was decided in 1992, establish reliance under the second prong of the retroactivity test.
The third and final prong of New Jersey's retroactivity test requires us to assess the impact that retroactive application of the new rule of law would have on the administration of justice. Knight, supra, 145 N.J. at 252. One of the relevant considerations under this factor is the number of cases that would require dismissal or retrial in the event of retroactive application. Ibid. We generally avoid applying new rules of law retroactively where “such an application would undermine the validity of large numbers of convictions.” Ibid. This policy stems from our desire to avoid overwhelming courts with retrials and the difficulty of retrying cases in which the underlying events took place long in the past. Ibid.; Burstein, supra, 85 N.J. at 410. The Appellate Division found that “our courts [would] not be burdened with a substantial number of perjury retrials as a result of [retroactively applying Anderson].” Purnell, supra, 310 N.J. Super. at 416. We disagree.
Unlike Afanador, where less than a dozen new trials were anticipated from the retroactive application of a new rule of law, here there are unknown and potentially a very large number of convictions that would be affected by the retroactive application of the Anderson decision to defendant's PCR petition. It is conceivable that most living defendants ever convicted of perjury would seek a new trial based upon a claim of constitutional violation. The courts would then have to decide on a case-by-case basis whether the five-year limitation fixed in Rule 3:22-12 should be relaxed. Afanador, supra, 151 N.J. at 52; State v. Mitchell, 126 N.J. 565, 580 (1992). "When appropriate, the procedural bars imposed by Rules 3:22-4, 3:22-5, and 3:22-12 may be asserted to preclude post-conviction relief, but . . . when meritorious issues are raised that require analysis and explanation, our traditions of comprehensive justice will best be served by decisions that reflect thoughtful and thorough consideration and disposition of substantive contentions." State v. Preciose, 129 N.J. 451, 477-78 (1992).
The Appellate Division suggests that we could limit post conviction attacks to five years after the Anderson decision was issued in 1992 because the average sentence for a perjury conviction is three to five years. However, even when a sentence has been served, a defendant may seek relaxation of the five-year rule in an endeavor to obtain a retrial or an expungement of a perjury conviction based on Anderson. Although we do not know the number of those types of petitions, they could be potentially voluminous. Moreover, without a defendant's consent, the State would not be able to downgrade an unconstitutional perjury conviction to fourth-degree false swearing in which materiality is not an element, N.J.S.A. 2C:28-2, in order to avoid a retrial. See, e.g., State v. Barboza, 115 N.J. 415, 423 (1989) (stating State is not permitted to downgrade defendant's conviction to lesser included offense without consent of defendant after appellate court determines no factual basis for guilty plea exists.) To permit a trial court to downgrade to a fourth-degree offense without a defendant's consent would be "tantamount to permitting a court to direct a verdict against a defendant in a criminal case." Ibid. at 423. Directing a verdict of guilty on a lesser included fourth-degree offense deprives a defendant of the constitutional right to a fair trial before a jury. State v. Collier, 90 N.J. 117, 122-23 (1982). We conclude, therefore, that the third and final New Jersey retroactivity factor does not support retroactive application of Anderson to defendant's PCR petition.
We hold that the application of our State's broader retroactivity jurisprudence to defendant's PCR petition on collateral attack demonstrates that there should not be retroactive application of our decision in Anderson to defendant's PCR petition.
Under federal retroactivity law, the first occasion the
United States Supreme Court addressed the retroactivity issue in
modern times was in Linkletter v. Walker,
381 U.S. 618,
85 S. Ct. 1731,
14 L. Ed.2d 601 (1965). After tracing the historical
development of federal and state retroactivity law, the Supreme
Court rejected a claim that the federal constitution mandated
retroactive application of Mapp v. Ohio,
367 U.S. 643,
81 S. Ct. 1684,
6 L. Ed.2d 1081 (1961), a decision requiring state courts
to exclude evidence seized in violation of the Fourth Amendment.
Id. at 629, 85 S. Ct. at 1737,
14 L. Ed 2d at ___. After
recognizing that the Constitution neither required nor prohibited
retroactivity, the Court held that selecting the proper
retroactive choice required a court to "weigh the merits and
demerits in each case by looking to the prior history of the rule
in question, its purpose and effect, and whether retrospective
operation will further or retard its operation." Ibid., 85 S.
Ct. at 1738,
14 L. Ed 2d at ___. Within three years after
Linkletter was decided, those three factors were incorporated
into a three-pronged federal retroactivity test, consisting of
(1) the purpose to be served by the new rule, (2) the extent of
reliance by law enforcement on the old rule, and (3) the effect
retroactive application of the new rule would have on the
administration of justice. Stovall v. Denno,
388 U.S. 293, 297,
87 S. Ct. 1967, 1970,
18 L. Ed.2d 1199, 1203 (1967). That is
the same standard adopted in New Jersey in Knight. Similar to
the New Jersey rule, the starting point under the federal test
adopted in Linkletter and Stovall was whether a new rule of law
was involved. United States v. Johnson,
457 U.S. 537, 549,
102 S. Ct. 2579, 2586,
73 L. Ed.2d 202, 213 (1982).
In Griffith v. Kentucky,
479 U.S. 314,
107 S. Ct. 708,
93 L.
Ed.2d 649 (1987), the Supreme Court abandoned the
Linkletter/Stovall three-pronged approach in cases pending on
direct review. In Griffith, the Court drew a distinction between
cases pending on direct review and those brought on collateral
attack, and held that a new rule of law concerning the conduct of
criminal prosecutions is to be applied retroactively to all cases
pending on direct review and to those cases not yet final. Id.
at 328, 107 S. Ct. at 716, 93 L. Ed.
2d at 661. The Court in
Griffith made no exception for cases in which the new rule of law
constitutes a “clear break” with the past. Ibid. Consequently,
the Griffith federal retroactivity test for cases pending on
direct review is broader than New Jersey's current three-pronged
approach. Under Griffith, federal retroactivity jurisprudence
calls for retroactive application of new rules of law to all
cases pending on direct review when the new rule of law concerns
the conduct of criminal prosecutions.
The last major shift in federal retroactivity law came in
Teague v. Lane,
489 U.S. 288,
109 S. Ct. 1060,
103 L. Ed.2d 334
(1989). In Teague, the Court again distinguished the retroactive
application of a new rule of law in a direct appeal from the
retroactive application of a new rule of law on collateral
attack. The Court concluded that on collateral attack, a new
rule of law is to be applied retroactively only where the rule
represents a clear break with the past and meets one of two
conditions: (1) the new rule places “certain kinds of primary,
private individual conduct beyond the power of the criminal law
making authority to proscribe[;]” or (2) the new rule requires
"the observance of 'those procedures that . . . are "implicit in
the concept of ordered liberty."'” Id. at 311; 109 S. Ct. at
1075-76, 103 L. Ed.
2d at 356 (quoting Mackay v. United States,
401 U.S. 667, 692, 693,
91 S. Ct. 1160, 1180,
28 L. Ed.2d 404,
1971). Thus, the federal standard under Teague is much stricter
than our State standard for relief when a defendant seeks to
collaterally attack a prior judgment of conviction.
Because the new rule announced in Anderson involves
defendant's State constitutional right to a jury trial on each
element of the perjury charge, as well as his right to due
process and trial by jury under the Fifth and Sixth Amendments of
the Federal Constitution under Gaudin, we must decide whether
under the Teague standard defendant can collaterally attack his
perjury conviction in his post-judgment proceeding. Lark, supra,
117 N.J. at 335. Although the applicable state and federal
retroactivity standards differ, the constitutional protections
announcing the new rule of law in Anderson and Gaudin are co
extensive. Given that this case involves a collateral attack on
the perjury conviction, and we have already decided that based on
New Jersey's retroactivity standard defendant is not entitled to
retroactivity of the new rule announced in Anderson, the only
issue remaining under the federal standard as limited by Teague
is whether the new rule articulated in Gaudin involves
"procedures that . . . are 'implicit in the concept of ordered
liberty.'" Teague, supra, 489 U.S. at 311, 109 S. Ct. at 1076,
103 L. Ed.
2d at 356 (quoting Mackay, supra, 401 U.S. at 693, 91
S. Ct. at 1180,
28 L. Ed 2d at ___ ). There is no claim that
the first of the two Teague conditions is involved in this case.
Defendant contends that his right to a jury trial on the
element of materiality involves a procedure that is implicit in
the concept of ordered liberty, and therefore, he is entitled to
have Gaudin applied retroactively to his PCR petition. Teague is
instructive concerning the intended meaning of its second
exception. It provides that the ordered liberty exception
requires that "the procedure at issue must implicate the
fundamental fairness of the trial." Id. at 312, 109 S. Ct. at
1076,
103 L. Ed 2d at ___. The "scope of the second exception
[is limited] to those new procedures without which the likelihood
of an accurate conviction is seriously diminished." Id. at 313,
109 S. Ct. at 1077,
103 L. Ed 2d at ___. The ordered liberty
exception under Teague has come to be known as "structural
error." Arizona v. Fulminante,
499 U.S. 279, 310,
111 S. Ct. 1246, 1265,
113 L. Ed.2d 302, ___ (1991). Structural error is
defined as a "structural defect[] in the constitution of the
trial mechanism, which [defies] analysis by 'harmless-error'
standards." Id. at 309-10, 111 S. Ct. at 1265,
113 L. Ed 2d at
___. A structural error has also been defined as a "defect
affecting the framework within which the trial proceeds, rather
than simply an error in the trial process itself." Johnson v.
United States,
520 U.S. 461, 468,
117 S. Ct. 1544, 1549,
137 L.
Ed.2d 718, ___ (1997).
Thus, a structural error affects the legitimacy of the
entire trial, rather than an isolated error that occurs during a
certain part of the trial process and does not contaminate the
trial as a whole. Accordingly, the Supreme Court has found
structural error to exist "only in a very limited class of
cases." Ibid. Examples of such cases include: Sullivan v.
Louisiana,
508 U.S. 275,
113 S. Ct. 2078,
124 L. Ed.2d 182
(1993) (finding erroneous reasonable-doubt instruction to jury);
Vasquez v. Hillery,
474 U.S. 254,
106 S. Ct. 617,
88 L. Ed.2d 598 (1986) (finding unlawful exclusion of grand jurors of
defendant's race); Waller v. Georgia,
467 U.S. 39,
104 S. Ct. 2210,
81 L. Ed.2d 31 (1984) (finding right to a public trial);
McKaskle v. Wiggins,
465 U.S. 168,
104 S. Ct. 944,
79 L. Ed.2d 122 (1984) (finding right to self-representation at trial);
Gideon v. Wainwright,
372 U.S. 335,
83 S. Ct. 792,
9 L. Ed.2d 799 (1963) (finding total deprivation of right to counsel); Tumey
v. Ohio,
273 U.S. 510,
47 S. Ct. 437,
71 L. Ed. 749 (1927)
(finding lack of an impartial trial judge). Each of the
foregoing constitutional errors is similar in that the error
affected the framework within which the trial occurred rather
than the trial process itself.
State v. Sanchez,
129 N.J. 261 (1992), like Gideon, involved
a deprivation of the right to counsel. Sanchez held that the
mere recitation of a Miranda warning does not provide an indicted
defendant with sufficient information to make a knowing and
intelligent waiver of the right to counsel. Yet in Knight, we
refused to afford complete retroactivity to Sanchez. Knight,
supra, 145 N.J. at 258. The Court reasoned that "because the
[pre-Sanchez] rule did not substantially impair the reliability
of the truth-finding process, we will not burden the criminal
justice system with the post-conviction-relief applications and
retrials that would result from a fully retroactive application
of the Sanchez decision." Ibid. Similarly, the rule that
prevailed before Anderson did not impair the reliability of the
truth-finding process in the present case.
Teague requires that in order to be deemed implicit in the
concept of ordered liberty, a new rule must be a "watershed
rule," that is, one that (1) is aimed at improving the accuracy
of trial and (2) alters our understanding of the bedrock
procedural elements essential to the fairness of the proceedings.
489 U.S. at 311, 109 S. Ct. at 1076,
103 L. Ed.2d 334. Thus,
in Bilzerian v. United States, the court observed:
That a jury determination of guilt or
innocence is an important element of a
criminal trial does not necessarily mean that
Gaudin is a "watershed rule" of criminal
procedure. Watershed rules "alter our
understanding of the bedrock procedural
elements" essential to the fairness of a
trial . . . . The rule in Gaudin merely
shifts the determination of materiality from
the judge to the jury. This shifting does
not "alter our understanding of the bedrock
procedural elements" essential to the
fairness of a trial.
[
127 F.3d 237, 241 (2d Cir. 1997), petition
for cert. filed,
66 U.S.L.W. 3774 (U.S. May
26, 1998)(No. 97-1892) (internal citations
omitted).]
Accord United States v. Shunk,
113 F.3d 31, 37 (5th Cir. 1997)
(stating "one can easily envision a system of 'ordered liberty'
in which certain elements of a crime can or must be proved to a
judge, not to the jury"); United States v. Swindall,
107 F.3d 831, 836 (11th Cir. 1997) (stating "[t]he fact that the Gaudin
rule does not improve the accuracy of the trial is sufficient to
render Teague's second exception inapplicable"); United States v.
Holland,
919 F. Supp. 431, 434-35 (N.D. Ga. 1996) (stating
"[a]pplication of the Gaudin rule, while implicating
constitutional concerns, does not improve the accuracy of the
trial . . . . The harm to be corrected by Gaudin was not the
inaccuracy of the decision; rather, the problem to be corrected
was that the wrong entity was making the decision").
The Appellate Division found such federal cases
"unpersuasive" and reasoned that "none . . . gives sufficient
weight to [the] due process implications [of Gaudin]." Purnell,
supra, 310 N.J. Super. at 417-18. Rather than considering
whether the Anderson rule represents a "watershed rule" of
criminal procedure--as the federal cases require--the Appellate
Division seems to suggest that any time due process is implicated
by a new rule of criminal procedure, full retroactive effect must
follow. That approach is more in keeping with the Griffith rule
than the controlling standard articulated in Teague.
The Appellate Division did not give full credence to
Johnson. In Johnson, the Supreme Court held that Griffith,
supra, 479 U.S. at 328, 107 S. Ct. at 716,
93 L. Ed 2d ___,
mandated the retroactive application of Gaudin to all cases
pending on direct review. Johnson, supra, 520 U.S. at 467, 117
S. Ct. at 1549,
137 L. Ed 2d at ___. Nevertheless, based on the
evidence in the record, Johnson unanimously found that the
determination of materiality by the trial court did not seriously
impair the fairness or integrity of the judicial proceedings.
Id. at 468, 117 S. Ct. at 1549-50,
137 L. Ed 2d at ___. We are
therefore persuaded that the Gaudin rule is not a bedrock
principle of criminal procedure; nor is it "implicit in the
concept of ordered liberty."
The Johnson principle was reaffirmed recently in Neder v.
United States, ___ U.S. ___, ___,
119 S. Ct. 1827, ___, ___ L.
Ed.2d ___, ___, [1
999 WL 373186, No. 97-1985 (June 10, 1999)].
While Gaudin was pending on appeal, Neder was convicted of
federal tax fraud, mail fraud, wire fraud, and bank fraud. Id.
at ___, ___ S. Ct. at ___, ___ L. Ed.2d at ___, [1
999 WL 373186
at *4]. The trial court determined that materiality as an
element of the offenses was to be decided by the court rather
than the jury. Ibid. The Eleventh Circuit held that although
the trial court's failure to submit the materiality element to
the jury violated Gaudin, the error was harmless because
materiality was not in dispute and therefore did not contribute
to the verdict. Ibid. The Supreme Court agreed and held that
even in a direct appeal in which Gaudin requires submission of
the materiality issue to the jury, failure to do so may
constitute harmless error. Id. at ___, ___ S. Ct. at ___, ___ L.
Ed.2d at ___, [1
999 WL 373186 at *7]. The Court found that
failure to comply with Gaudin does not constitute structural
error. Consequently, the language in Justice Scalia's dissent in
Neder, quoted by Justice O'Hern in his dissent, infra at ____
(slip op. at 11-12), is simply rhetoric that has no application
to the present case. Here, defendant has made a collateral
attack upon his perjury conviction and is seeking to have Gaudin
applied retroactively.
Although the issue of materiality was controverted in the
present case, the evidence supporting the issue came from
defendant's daughter. The issue was decided by the judge rather
than the jury based on trustworthy evidence in conformity with
standards that have been constitutionally approved for more than
one-and-a-half centuries. The judge used the same burden of
proof standard in deciding the issue of materiality here as would
the jury. Based on the facts of the case, we conclude that the
procedure employed in defendant's trial for perjury is a "far cry
[different] from the kind of absolute prerequisite to the
fundamental fairness that is 'implicit in the concept of ordered
liberty.'" Teague, supra, 489 U.S. at 314, 109 S. Ct. at 1077,
103 L. Ed 2d at ___. The procedural defect involved here that
was changed after more than a century and a half does not
represent the kind of bedrock procedural element that should be
retroactively applied.
In summary, we hold that defendant is not permitted to
collaterally attack his prior judgment of conviction for perjury
by having the new rule announced in Anderson and Gaudin
retroactively applied. The judgment of the Appellate Division is
accordingly reversed.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI and STEIN join
in JUSTICE COLEMAN's opinion. JUSTICE O'HERN has filed a
separate dissenting opinion, in which JUSTICES HANDLER and
POLLOCK join.
SUPREME COURT OF NEW JERSEY
A-
208 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRAYNARD PURNELL,
Defendant-Respondent.
O'HERN, J., dissenting.
Braynard Purnell is serving a life sentence with a thirty
year parole disqualifier in State Prison for murder. He will
also serve a consecutive five-year sentence for perjury if his
conviction thereof is sustained. The perjury sentence will be
served concurrently with a five-year sentence for hindering
apprehension, two years of which are parole ineligible, also
consecutive to the murder sentence. The Court's decision will
probably not mean a great loss of street time for defendant but
there is a matter of principle involved.
The facts of the murder are set forth in our reported
decision at
126 N.J. 518 (1992). Briefly stated, the murder
involved an argument over drugs between Purnell and a drug dealer
in Purnell's back yard. In the course of the investigation,
Purnell appeared before a Grand Jury and testified that he had
returned to his house and entered through the front door. His
daughter testified that he had come back into the house through a
rear window. The Grand Jury indicted Purnell for the murder of
the drug dealer, possession of a weapon with intent to use it
unlawfully, hindering apprehension, and perjury. This was a
capital case and defending against the perjury count could not
have been a very high priority for defense counsel. Although
they moved at trial to dismiss the perjury count on the ground
that materiality had not been proven, Purnell's attorneys never
requested that the issue of materiality be decided by the jury.
Purnell's trial took place in January and February 1990.
In 1992, this Court decided State v. Anderson,
127 N.J. 191,
which held that the materiality of an allegedly perjurious
statement is to be decided by a jury, not by a judge. Among the
several issues raised in Purnell's post-conviction relief
proceeding was that he had been entitled to trial by jury on the
materiality of the difference between Purnell's entry by the
front door versus by the rear window.
Post-conviction relief (PCR) is the New Jersey analogue to
the federal writ of habeas corpus. It is a safeguard to ensure
that defendant was not unjustly convicted. Ordinarily, PCR
enables a defendant to challenge a final judgment of conviction
by presenting contentions that could not have been raised on
direct appeal. State v. McQuaid,
147 N.J. 464, 482 (1997).
Pursuant to Rule 3:22-2, a defendant may seek PCR on four
grounds: “(a) substantial denial in the conviction proceedings of
a defendant's state or federal constitutional rights; (b) a
sentencing court's lack of jurisdiction; (c) an unlawful
sentence; and (d) any habeas corpus, common-law, or statutory
grounds for a collateral attack.” State v. Preciose,
129 N.J. 451, 459 (1992) (internal quotations omitted). The Court does
not rely on any of the procedural bars set forth in Rule 3:22 but
relies on the fact that the principle of Anderson should not
provide retroactive relief. I disagree.
The Anderson doctrine was based on the New Jersey State
Constitution, not the federal Constitution. Although federal
constitutional retroactivity doctrine sets the constitutional
threshold, it does not set the ceiling for retroactivity.
Teague v. Lane,
489 U.S. 288,
109 S. Ct. 1060,
103 L. Ed.2d 334 (1989), established a restrictive federal approach to
retroactivity in order to effect a “proper allocation of
responsibility between the state and federal courts in the area
of constitutional criminal procedure” and to eliminate the
“perceived encroachment of federal habeas on state courts.” Mary
C. Hutton, Retroactivity in the States: The Impact of Teague v.
Lane on State Postconviction Remedies,
44 Ala. L. Rev. 421, 449
(1993) (footnote omitted). The Teague plurality
thought that its approach would comport . . .
with the central purpose of federal habeas
corpus. . . . [H]abeas is not simply another
layer of review for constitutional error, but
an extraordinary remedy with a far more
limited function of supplying “a necessary
additional incentive for trial and appellate
courts throughout the land to conduct their
proceedings in a manner consistent with
established constitutional standards.”
[Richard H. Fallon, Jr. & Daniel J. Meltzer,
New Law, Non-retroactivity, and
Constitutional Remedies,
104 Harv. L. Rev.
1731, 1747 (1991) (quoting Teague, supra, 489
U.S. at 306, 109 S. Ct. at 1073, 103 L. Ed.
2d at 353).]
New Jersey's retroactivity analysis, although generally
consistent with that of the United States Supreme Court, is
considerably less restrictive. State v. Cupe,
289 N.J. Super. 1,
12 (App. Div.) certif. denied,
144 N.J. 589 (1996) (noting
federal courts' reluctance to apply law retroactively on
collateral attack rather than direct review). We recently
reviewed our principles of retroactivity analysis:
In deciding whether to give a decision
retroactive effect, there are several options
available to the Court, ranging from complete
retroactivity to complete prospectivity. See
Cupe, supra, 289 N.J. Super. at 12,
672 A.2d 1233 (enumerating the four options).
However, before the Court chooses from among
the varied options, it customarily engages in
the threshold inquiry of whether the rule at
issue is a “new rule of law” for purposes of
retroactivity analysis. Id. at 11,
672 A.2d 1233. Our cases have recognized that if a
ruling does not involve a “departure from
existing law,” the retroactivity question
never arises and our power to limit the
retroactive effect of a decision is not
implicated. State v. Burstein,
85 N.J. 394,
403,
427 A.2d 525 (1981). . . . [State v.]
Knight [
145 N.J. 233, 251 (1996)] continued
to explain:
if a decision indeed sets forth
a “new rule,” three factors
generally are considered to
determine whether the rule is to
be applied retroactively: “(1)
the purpose of the rule and
whether it would be furthered by
a retroactive application, (2)
the degree of reliance placed on
the old rule by those who
administered it, and (3) the
effect a retroactive application
would have on the administration
of justice.” State v. Nash,
64 N.J. 464, 471,
317 A.2d 689
(1974). . . . Although those
three factors have received
detailed attention in our
retroactivity case law, our
cases also indicate that the
retroactivity determination
often turns more generally on
“the court's view of what is
just and consonant with public
policy in the particular
situation presented.” [Nash,
supra, 64 N.J.] at 469, . . .
[T]he purpose of the new rule[]
is often the pivotal
consideration. Burstein, supra,
85 N.J. at 406,
427 A.2d 525.
For example, if the newly
announced rule is an
exclusionary rule intended
solely to discourage police
misconduct, then the rule's
purpose would not be served by
applying the rule to conduct
occurring before the rule was
announced. For that reason,
exclusionary rules are rarely
given retroactive effect. Ibid.
[State v. Afanador,
151 N.J. 41, 57-58
(1997).]
The purpose of the Anderson ruling is to implicate the
fundamental right of trial by jury through the proper allocation
of the functions of judge and jury. Retroactive application of
the rule surely fosters that purpose. Nothing could be more
intrinsic to fostering the “reliability of the truth-finding
process,” Afanador, supra, 151 N.J. at 58, than the proper
allocation of these functions. This is particularly true in
light of the unique role of the jury in criminal prosecutions,
which itself led to the Anderson rule. In criminal
jurisprudence there is a qualitative distinction between judge
and the jury, particularly on the issue of deciding an element of
a crime. The determination of guilt is highly nuanced, and it is
impossible to say in respect of any criminal conviction that the
separate determination of an element by a judge will be given the
same probative worth or weight in the ultimate verdict of guilt
as would have been given by the jury itself. The determination
of criminal guilt is indissoluble and cannot be assessed as
simply the amalgam of its underlying elements. As the Court
explained:
The responsibility of the jury in the domain
of factual findings, and ultimate 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.
[State v. Ingenito,
87 N.J. 204,
211-12 (1981) (citations omitted).
Accord, State v. Simon,
79 N.J. 191
(1979) (rejecting use of
interrogatories submitted to jury
before beginning deliberations to
prevent effect of subliminally
suggesting defendant's guilt).]
The jury deliberations process is not an exercise in logic
or pure science, and removing or subtracting one segment from the
deliberative process does not simply leave a numerical remainder
-- it plausibly affects the overall calculus of innocence or
guilt. For example, in Ingenito, the Court held that the use of
defendant's prior conviction for unlicensed transfer of a weapon
as the sole basis for establishing the element of possession in a
separate trial for possession of a firearm by a convicted felon
impinged on defendant's constitutional right to a fair jury
trial. The Court reasoned:
If an essential element of a case is
presented as concluded or settled,
effectively withholding from the jury crucial
underlying facts, the jury's capacity to
discharge fully its paramount deliberative
and decisional responsibilities is
irretrievably compromised. It follows in
such circumstances that the defendant's jury
right will have been, commensurately,
abridged.
Similarly, in State v. Collier, 90 N.J. 117 (1982), this Court reversed a decision to direct a verdict of guilty on a charge of contributing to the delinquency of a minor (by engaging in intercourse) in the trial of a charge for rape. Although both defendant and the victim conceded that they had engaged in intercourse, the Court was concerned with “improperly imping[ing] on the sensitive area of jury deliberation[s].” Id. at 123. The Court explained:
The testimony differed sharply and apparently left the jury in doubt about the guilt of the defendant. The import of the directed verdict on the contributing charge was that the trial court told the jury that, no matter whom they believed, the defendant's conduct was criminal. In a case where so much turned on credibility, the likelihood that the jury was improperly influenced by such a suggestion cannot be gainsaid.
Furthermore, if the jury had considered both charges, it is possible that it might have decided to return a verdict of guilty on the contributing charge instead of a verdict of guilty on the rape charge. By directing a guilty verdict on the contributing charge, however, the court limited the jury's role to a consideration of the rape charge. . . . In effect, the partial directed verdict on the contributing charge impaired the jury's ability to assess objectively the defendant's guilt on the rape charge.
These cases demonstrate that removing the determination of even
the most seemingly uncontroverted element of a crime from the
province of the jury strikes at the heart of the truth-finding
process. Accordingly, the first Nash factor strongly suggests
complete retroactive effect.
The next question is whether the second factor, past
reliance, should outweigh the first factor. The Anderson rule
appears to have been the result as much of indifference as of
reliance. As Just