SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-7127-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LLOYD BURGESS,
Defendant-Appellant.
_________________________________________________________________
Submitted October 29, 1996 - Decided February 18, 1997
Before Judges Pressler, Humphreys and Wecker.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County.
Susan L. Reisner, Public Defender, attorney
for appellant (Michael C. Kazer, Designated
Counsel, on the brief).
Peter Verniero, Attorney General, attorney
for respondent (Nancy A. Hulett, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
In State v. Alexander, 136 N.J. 563 (1994), the New Jersey Supreme Court mandated definitional jury instructions in a prosecution under N.J.S.A. 2C:35-3, the drug-kingpin statute, which became effective July 1987. The issue before us is whether the rule articulated by Alexander should be accorded retroactive effect in post-conviction relief proceedings that challenge a kingpin conviction which became final prior to Alexander. We conclude,
under all the circumstances before us, that since those required
instructions define elements of the kingpin offense, a kingpin
conviction unsupported by a proper charge to the jury is vulnerable
to attack on that ground by way of collateral review of a final
judgment of conviction. We reach that conclusion irrespective of
whether the usual standards for post-conviction relief alone apply
or whether Alexander is deemed to constitute a "new rule,"
requiring a retroactivity analysis as well. Accordingly, we
reverse the order appealed from denying the application of
defendant Lloyd Burgess for post-conviction relief on Alexander
grounds and remand for a new trial.
Chronology is critical to our reasoning. Defendant Lloyd
Burgess was convicted under the drug kingpin statute prior to the
decision of this court in State v. Alexander,
264 N.J. Super. 102
(App. Div. 1993), affirmed by the Supreme Court the following year,
136 N.J. 563 (1994), in which we held that specified explanations
of "upper echelon member" and "organized drug trafficking network"
were essential in order to guide the jury's determination that
"defendant's status and activities warranted the punishment which
the Legislature has reserved for a `leader of a narcotics
trafficking network.'" Alexander, supra, 264 N.J. Super. at 111.
Defendant Burgess' unsuccessful direct appeal, in which the issue
of inadequate instructions was not raised, was also decided before
this court's opinion in Alexander. Defendant's petition for
certification was denied prior to the Supreme Court's Alexander
opinion. State v. Burgess,
134 N.J. 566 (1993). In December 1994,
following the Supreme Court's Alexander decision the previous July,
defendant filed a petition for post-conviction relief raising,
among other issues, the contention that the trial court's failure
to give an Alexander charge deprived him of his constitutional due
process right to a fair trial. The petition was dismissed, and
defendant appeals.
For purposes of these post-conviction proceedings, the facts
require only brief reference. The State produced evidence at trial
that defendant was involved in a cocaine-trafficking scheme with at
least four other persons. Two were street dealers, one assisted in
breaking down larger quantities of cocaine into sales units and at
times made purchases of cocaine for defendant in New York, and the
fourth was defendant's girlfriend, who assisted in supplying the
street dealers. All four, apparently addicts, received at least
part of their payment in cocaine. Based on the foregoing evidence,
the jury convicted defendant under the kingpin statute of
conspiracy to distribute cocaine, and of twenty-four drug-distribution and possession crimes. The remaining convictions were
all merged into eight distribution convictions, two second-degree
and six third-degree. Sentences of seven years on each of the
second-degree convictions and of four years on each of the third-degree convictions were imposed, all to run concurrently with the
life term.
With respect to the kingpin charge, the judge instructed the
jury in the language of N.J.S.A. 2C:35-3, following the then model
jury chargeSee footnote 1 and telling the jury that in order to convict under
the statute, it had to find that defendant was "an organizer,
supervisor, financier or manager"See footnote 2 in a drug trafficking conspiracy
and occupied "a high level position in the conspiracy." It was
precisely the charge that we held in Alexander to be inadequate to
sustain a kingpin conviction. That is to say, although we were
satisfied that the kingpin statute is not facially void for
vagueness, we nevertheless concluded that its application was
subject to impermissible overbreadth absent the qualifications and
explanations set forth in N.J.S.A. 2C:35-1.1c which, we held,
define the status and conduct intended by the Legislature to be
subject to kingpin punishment. Accordingly, we prescribed specific
and discrete definitions of "a leader of a narcotics trafficking
network" to convey to the jury the necessity of defendant's status
as an "upper echelon member" of an organized "drug trafficking
network" and to give the jury a better sense of the proscribed
activity. Alexander, supra, 264 N.J. Super. at 110-111.
Following this court's Alexander opinion and while
certification proceedings were pending on the State's petition in
that case, the Supreme Court addressed the kingpin statute for the
first time since its 1987 enactment in State v. Afanador,
134 N.J. 162 (1993). The sole issue the Court considered was the statute's
asserted unconstitutional vagueness, both facially and as applied
to defendant. A majority of four concluded that N.J.S.A. 2C:35-3
withstood that challenge. The three dissenters, for whom Justice
O'Hern spoke, took a different approach. Recognizing the over
breadth problem, they were of the view that "the statute was
applied unconstitutionally because it was applied too vaguely to
guide the jury's function," a defect which, they concluded, could
be cured by the discrete and specific "upper echelon" and "drug
trafficking network" explanations prescribed by us in Alexander.
Afanador, supra, 134 N.J. at 185 (O'Hern, J., dissenting). In sum,
the dissent was persuaded that the content of the jury charge is
inescapably linked to the constitutionality of the statute since
only a properly limiting charge, and more particularly the charge
we mandated in Alexander, could save the statute from
unconstitutional overbreadth. The response of the Afanador
majority was simply to assert that the question of the jury charge
was not before it, that the statute stood independently of the
Alexander charge, and that it was inappropriate for the dissent to
rely on an Appellate Division opinion while certification
proceedings were still pending. 134 N.J. at 179.
A year later, on July 19, 1994, the Supreme Court decided
Alexander, the majority now substantially adopting the views both
of the Appellate Division and of the Afanador dissenters.See footnote 3 That
is to say, the Court, now conceding the inherent ambiguity of
N.J.S.A. 2C:35-3, concluded that
[t]he prominence of the upper-level status of
the defendant in the description and
explanation of the purpose of the crime [as
set forth in N.J.S.A. 2C:35-1.1c] clearly
evidences the Legislature's intent that the
status or the position of the defendant in the
drug trafficking network is a substantive part
of the crime. [Alexander, supra, 136 N.J. at
570.]
Accordingly, it held that "the status or position of the defendant
should be considered a material element of the crime," requiring,
in accordance with the legislative intent articulated by N.J.S.A.
2C:35-1.1c, albeit not expressly reiterated in N.J.S.A. 2C:35-3,
inclusion of the definitional element of "the role of the defendant
as an `upper-level member' of a drug operation." Alexander, supra,
136 N.J. at 570-571. Rejecting to some extent the specificity of
the definition prescribed by us in Alexander, the Supreme Court
instructed as follows with respect to the requisite charge to the
jury:
Under the statute a drug-trafficking network
need not have any specific configuration or
chain of command. Such a network is not to be
understood primarily or exclusively as a
vertical, in contrast to a horizontal,
organization. Rather, it is to be considered
as an organization of persons who are
collectively engaged in drug activities. A
"high-level" or "upper-echelon" "leader" of
such an organization is one who occupies a
significant or important position in the
organization and exercises substantial
authority and control over its operations.
Neither the specific elements enumerated in
the provisions of N.J.S.A. 2C:35-3 nor the
additional requirements extrapolated from the
statute's statement of purpose indicate that a
drug operator exercising authority and
controlling other people in an organization or
network, even at the street level, could not
be a "leader" or "drug kingpin" within the
contemplation of the Legislature. Rather, the
role of a defendant as a leader or drug
kingpin turns more on the nature of that
person's authority, the magnitude or extent of
control, and the number of persons over whom
that power is exercised.
An appropriate instruction should also
amplify the other statutory terms that are
expressed as material elements of the crime
under N.J.S.A. 2C:35-3. Thus, the statutory
terms "organizer, supervisor, financier or
manager" should be explained so that the
meaning of those terms is more fully
understood by the jury. For example, the
court might define an "organizer" as a person
who arranges, devises, or plans a drug-trafficking network; a "supervisor" as one who
oversees the operation of a drug-trafficking
network; a "financier" as one who is
responsible for providing the funds or
resources necessary to operate a drug-trafficking network; and a "manager" as one
who directs the operations of a drug-trafficking network. [Id. at 575.]
A conforming revised model jury charge was adopted on February 26,
1996. See New Jersey Model Jury Charges, Criminal, Leader of Drug
Trafficking Network, N.J.S.A. 2C:35-3 (February 26, 1996).
Defendant, of course, did not have the benefit at trial of
that "upper-echelon" or "high-level" instruction. The question now
is whether that omission is subject, both procedurally and
substantively, to collateral attack by way of a petition for post-conviction relief entitling defendant to a new trial.
To begin with, we reject the State's contention that the
petition is procedurally precluded under R. 3:22-4, which bars
assertion by way of post-conviction petition of a ground for relief
not raised on direct appeal or in a prior petition. The rule
relieves defendant from that bar if "denial of relief would be
contrary to the Constitution of the United States or the State of
New Jersey." R. 3:22-4(c). As we held in State v. Cupe,
289 N.J.
Super. 1, 8 (App. Div.), certif. denied,
144 N.J. 589 (1996), a
"genuinely alleged serious defect in the jury charges will
circumvent the procedural prohibition." Clearly, such a defect
implicates a claim of constitutional dimension and, just as
clearly, this is such a case.
It is, of course, well settled that "correct jury instructions
are at the heart of the proper execution of the jury function" and
are essential for a fair trial. Alexander, supra, 136 N.J. at 571.
See also State v. Brown,
138 N.J. 481, 522 (1994); State v.
Martini,
131 N.J. 176, 271 (1993); State v. Clausell,
121 N.J. 298,
318-319 (1990); State v. Collier,
90 N.J. 117, 122 (1982) (quoting
State v. Green,
86 N.J. 281, 287 (1981)). It is also clear that a
charge which fails properly to define the substantive elements of
the offense is ordinarily fatal to the ensuing conviction. State
v. Rhett,
127 N.J. 3, 7 (1992); State v. Weeks,
107 N.J. 396, 410
(1987). There is, therefore, no doubt that had this trial taken
place after the Supreme Court's decision in Alexander, the omission
of the prescribed charge would have constituted plain error
cognizable on appeal and requiring a new trial. See Brown, supra;
Clausell, supra; State v. Martin,
119 N.J. 2, 15 (1990); State v.
Harmon,
104 N.J. 189, 213 (1986); State v. Simon,
79 N.J. 191, 206
(1979); State v. Hock,
54 N.J. 526, 538 (1969), cert. denied,
399 U.S. 930,
90 S. Ct. 2254,
26 L. Ed.2d 797 (1970). The issue is
whether the rules of retroactivity preclude this defendant, who
challenges the omission on post-conviction petition, from being
accorded the same remedy. We are persuaded that they do not.
The retroactivity of judicial holdings affecting the conduct
of criminal trials is a complex issue implicating significant but
competing jurisprudential doctrines which can, in the main, be
summarized as the interest in fundamental fairness on the one hand
and the interest in finality on the other. The weighing of the
balance between them is, in actuality, primarily dependent on
whether the retroactivity issue arises in the pre-finality stage of
the criminal proceedings, that is, prior to the exhaustion of
direct review, or whether it arises thereafter by way of collateral
attack in a post-conviction proceeding. The subject, in our view,
is rendered even more complex by the apparent divergence of
retroactivity jurisprudence between the federal courts, in which
direct versus collateral attack is the bright-line determinant of
retroactivity, and the New Jersey courts, which have not expressly
acknowledged the doctrinal implications of that distinction.
Some historical reference is necessary. An instructive
starting point in understanding the United States Supreme Court's
modern retroactivity jurisprudence is Linkletter v. Walker,
381 U.S. 618,
85 S. Ct. 1731,
14 L. Ed.2d 601 (1965), in which the
Court denied collateral-attack retroactivity to the exclusionary
rule of Mapp v. Ohio,
367 U.S. 643,
81 S. Ct. 1684,
6 L. Ed.2d 1081 (1961), essentially on the ground of the inevitable and
obvious burdens on the judicial process that would ensue from a
post-finality retroactivity holding was not outweighed by the
fundamental purpose of the Mapp rule. Linkletter was followed
several years later by Stovall v. Denno,
388 U.S. 293,
87 S. Ct. 1967,
18 L. Ed.2d 1199 (1967), involving, also in the context of
collateral attack, the retroactivity of the defendant-identification rules enunciated by United States v. Wade,
388 U.S. 218,
87 S. Ct. 1926,
18 L. Ed.2d 1149 (1967). It was in Stovall
that the Court, relying on Linkletter and its intervening decision
in Johnson v. New Jersey,
384 U.S. 719,
86 S. Ct. 1772,
16 L. Ed.2d 882 (1966), articulated the three-prong test for determining
retroactivity that dominated federal retroactivity jurisprudence
for the next twenty years and still, apparently, dominates New
Jersey's. The elements of that test were defined as
(a) the purpose to be served by the new
standards, (b) the extent of the reliance by
law enforcement authorities on the old
standards, and (c) the effect on the
administration of justice of a retroactive
application of the new standards. [Stovall,
supra, 388 U.S. at 297, 87 S. Ct. at 1970, 18
L. Ed.
2d at 1203.]
The underlying rationale for this test, the Court explained, is the
understanding that
"[t]he retroactivity or nonretroactivity of a
rule is not automatically determined by the
provision of the Constitution on which the
dictate is based. Each constitutional rule of
criminal procedure has its own distinct
functions, its own background of precedent,
and its own impact on the administration of
justice, and the way in which these factors
combine must inevitably vary with the dictate
involved." [Ibid. (quoting Johnson, supra,
384 U.S. at 728, 86 S. Ct. at 1778, 16 L. Ed.
2d at 889).]
Of course, at least up to this point, the foundation predicate
for the Stovall analysis required that the judicial holding that
was the subject of the retroactivity analysis be a "new rule," that
is, a rule generally described as one both unanticipated and
constituting a clean break with the past. See, e.g., United States
v. Johnson, 457 U.S. at 549-550,
102 S. Ct. 2579, 2586-2587, 73 L.
Ed.
2d at 202, 213-214 (1982). We think it plain that if the
judicial holding in question were not to qualify as a new rule,
then retroactivity analysis would be irrelevant and the
availability of the holding to a convicted defendant would be
circumscribed, as in the case of any other omitted defense theory
or argument, by other relevant doctrines including the plain-error
rule and the customary standards for the grant of post-conviction
relief.
The demise of the Stovall new rule/three-prong test was
foreshadowed by Justice Harlan's concurring and dissenting opinions
in Desist v. United States,
394 U.S. 244, 256,
89 S. Ct. 1030,
1038,
22 L. Ed.2d 248, 259 (1969), and Mackey v. United States,
401 U.S. 667, 675,
91 S. Ct. 1171,
28 L. Ed.2d 404, 410 (1971)
(Harlan, J., concurring in judgments and dissenting). Simply
stated, in Justice Harlan's view the essentially ad hoc application
of the Stovall test, not only in post-finality cases but also, as
it had developed, in pre-finality cases as well, was
jurisprudentially unsound on a number of grounds, primary among
them being the denial of similar relief to defendants similarly
situated. As he saw it, every announced rule of law, whether or
not new in the Stovall context, should be available to every
defendant whose conviction is not yet final in the sense of
exhaustion of direct review. In his view, however, the interests
of finality become paramount once the conviction has become final,
and hence, on collateral attack, retroactivity should be accorded
to a new rule only when the rule decriminalizes the conduct that
was the basis of the conviction or where the new rule prescribes
procedures that are "implicit in the concept of ordered liberty."
Mackey, supra, 401 U.S. at 693, 91 S. Ct. at 1180, 28 L. Ed.
2d at
421.
In Griffith v. Kentucky,
479 U.S. 314,
107 S. Ct. 708,
93 L.
Ed.2d 649 (1987), the Supreme Court finally abandoned the
Linkletter-Johnson-Stovall approach, expressly adopting the views
of Justice Harlan as expressed in Desist and Mackey. Griffith drew
a clear and dramatic distinction between direct review and
collateral attack and recognized that in direct-review cases, the
"selective application of new rules" that had resulted from the
Stovall approach "violates the principle of treating similarly
situated defendants the same." Griffith, supra, 479 U.S. at 323,
107 S. Ct. at 713, 93 L. Ed.
2d at 658. Griffith accordingly held
that
a new rule for the conduct of criminal
prosecutions is to be applied retroactively to
all cases, state or federal, pending on direct
review or not yet final, with no exception for
cases in which the new rule constitutes a
"clear break" with the past. [Id., 479 U.S.
at 328, 107 S. Ct. at 716,
93 L. Ed.2d 661.]
Of significance, too, is Griffith's further observation that while
the Stovall three-prong test no longer applied for purposes of
direct-review retroactivity analysis, nevertheless, the second and
third prongs, namely, reliance by law enforcement officials and the
burden of the administration of justice, continued to be useful in
the post-finality context. 479 U.S. at 326-327, 107 S. Ct. at 715,
93 L. Ed.
2d at 661.
For present purposes, we conclude the federal story with
Teague v. Lane,
489 U.S. 288,
109 S. Ct. 1060,
103 L. Ed.2d 334
(1989). Reemphasizing the direct-review rule of Griffith, the
Court expressly adopted Justice Harlan's statement of standards for
according retroactivity on collateral attack, making clear that in
that context, the threshold inquiries are first, determination of
the date of finality of the conviction and then determination of
whether the announced rule was new in the "clean break" sense.
That brings us to New Jersey's retroactivity jurisprudence.
Prior to Griffith, the New Jersey Supreme Court followed
Linkletter-Johnson-Stovall, reserving to itself the power to
determine the extent of retroactivity of a new rule of law,
applying the three-prong test, and not distinguishing, in a
dispositive way, between direct review and collateral attack. See,
e.g., State v. Burstein,
85 N.J. 394 (1981); State v. Howery,
80 N.J. 563, cert. denied,
444 U.S. 994,
100 S. Ct. 527,
62 L. Ed.2d 424 (1979); State v. Nash,
64 N.J. 464 (1974). The Court's first
post-Griffith address of retroactivity came in State v. Lark,
117 N.J. 331 (1989), a post-conviction relief case in which the issue
was the retroactivity of State v. Howard,
110 N.J. 113 (1988),
where the Court had held that prior to accepting a guilty plea from
a sex-offender, the trial judge must advise him of the parole
consequences of a sentence to the Adult Diagnostic and Treatment
Center at Avenel. The Court rejected retroactivity, applying the
traditional three-prong test without explicitly considering its
intervening abandonment by Griffith-Teague or the analytic
rationale and policy bases underlying that abandonment.See footnote 4 Nor did
Lark draw a bright-line distinction between direct review and
collateral attack. Nevertheless, it is clear that without
expressly having done so, the analysis of Lark closely tracked the
Griffith dictum that the second and third Stovall factors remained
relevant in deciding collateral-attack retroactivity questions.
Indeed, it was based on those factors that Lark denied that
retroactivity. Thus, the Court noted that there were 486
potentially affected Avenel inmates and 142 more awaiting
admission, that retroactivity would result in several hundred
petitions of post-conviction relief, that the pre-Howard practice
was of long standing, and that the potentially disruptive effect of
retroactivity was not outweighed by any other consideration. Lark,
supra, 117 N.J. at 341.
Retroactivity was again addressed in State v. Harvey,
121 N.J. 407 (1990), a capital murder case before the Court on direct appeal
in which the retroactivity question involved the holding in State
v. Hartley,
103 N.J. 252 (1986), rendered after the conclusion of
defendant's trial and requiring that where a suspect has previously
invoked his right to remain silent, fresh MirandaSee footnote 5 warnings must
be given before interrogation is resumed. The Court accorded
Hartley retroactivity on two grounds. It concluded first that it
did not announce a new rule and hence retroactivity was not an
issue. It also concluded that retroactivity was required both
under Stovall and under Griffith. Its Griffith discussion was,
however, not in terms of whether New Jersey should choose to follow
that rule, but rather whether New Jersey was obliged to follow it
if the subject of the "new" holding involved a federal
constitutional issue.
Most recently, the Court considered retroactivity in State v.
Knight,
145 N.J. 233 (1996), another direct-review case in which
the holding in State v. Sanchez,
129 N.J. 261 (1992)....again a
Miranda pronouncement coming after defendant's trial....was in issue.
Once more, the Court, without drawing a defining distinction
between direct review and collateral attack, applied the three-prong test. Although noting Griffith's rejection thereof, it again
did not address the policy or rationale of the Griffith holding or
of the Harlan dissents on which both Griffith and Teague were
based. Nevertheless, retroactivity was accorded based on the
Stovall test.
We find it significant that although the Court continues to
apply Stovall, it reached the same result in these three cases that
Griffith-Teague would have required....namely, the according of
retroactivity in the two direct-review cases and the withholding of
retroactivity in the collateral-attack case.
We have belabored this parallel federal and state doctrinal
development because of its instructiveness in our address of a
post-conviction relief retroactivity problem. That is to say, we
are satisfied that the Stovall three-prong test remains fully
applicable to post-finality situations even if there were any
question of its continued validity in direct-review cases, and we
are satisfied that that test has been met here. We are also
satisfied that the even more restrictive Teague test, the other
side of the Griffith coin, which places a paramount value on the
importance of finality, is met as well in the circumstances before
us.
We address first the "new rule" issue, which, although no
longer relevant under Griffith, is of critical importance in the
post-conviction situation under both Stovall and Teague. It is, of
course, clear that when the new-rule question is relevant, it is
the threshold question in retroactivity analysis. See, e.g.,
Harvey, supra, 121 N.J. at 421; Lark, supra, 117 N.J. at 335; State
v. Cupe, supra, 289 N.J. Super. at 11. It is our view that
Alexander did not announce a new rule of law, certainly not in the
sense of "a sudden and generally unanticipated repudiation of a
long-standing practice." Cupe, supra.See footnote 6 The fact of the matter is that there was no law respecting the elements of the required jury instructions in a drug-kingpin case prior to our 1993 decision in Alexander. No reported opinion had earlier addressed the matter. Moreover, the Supreme Court in Afanador, decided after our opinion in Alexander, expressly declined to consider the question of proper instructions. We are aware that there was a model jury charge, that is, the charge employed in defendant's trial that we held in Alexander to be incorrect. But it is difficult to see how that model jury charge can represent a long-standing practice. We recognize that although a model jury charge is entirely unofficial and does not have the weight of law,See footnote 7 it could, under appropriate circumstances, be said to evidence a long-standing practice. But that does not appear to be the case here. On February 1, 1990, the date on which the verdict was returned at defendant's trial, N.J.S.A. 2C:35-3 itself was less than three years old and the model jury charge considerably less than two. If a new rule of law can reasonably be said to constitute "a clear break with the past," Lark, supra, 117 N.J. at 338, then in order to be new, there must have been an appreciable past from which the rule departs. That, too, does not appear to be the case here. The statute in question,
as observed by Alexander, supra, 136 N.J. at 568, is "unusually-constructed," its essential elements being elsewhere defined by
implication. Because of its inherent ambiguity, the initial
challenge was to its constitutionality as written. The
intertwining of its constitutionality with the determination of a
proper jury instruction was a matter of evolution, consuming a not
inordinate time period from statutory enactment to definitive
Supreme Court interpretation. The point, of course, is that it is
a difficult task, if possible at all, to identify a discrete past
within a period of evolution. If, of course, the Alexander holding
is not a new rule for retroactivity purposes, then the only
question before us would be whether the absence of an Alexander
instruction from the charge constituted plain error. We have no
doubt that under this analysis, defendant would be entitled to a
new trial because of the evident prejudice of the failure of the
charge to define critical elements of the crime.
We are, however, satisfied that even if the Alexander charge
were deemed to constitute a new rule for retroactivity purposes, it
would, as we have said, be available to this defendant on
collateral review under both Stovall and Teague. We address first
the Stovall factors.
The first of these, namely the purpose of the new standard, is
convincingly demonstrated here. We think it clear that there has
been a shift of perception by the Court's majority between Afanador
and Alexander. Whether or not Alexander can be construed as
definitively linking the kingpin statute's constitutionality with
the giving of a proper charge, it is at least plain that the Court
now conceives of the properly defined "high-level" or "upper-echelon" status of the defendant as an essential element of the
offense. We further read Alexander as holding that the legislative
intent in enacting the kingpin statute cannot be assured of proper
execution absent that element. The purpose of the Alexander charge
then, in retroactivity terms, if not to correct a constitutional
flaw in the statute, is at least to assure effectuation of the
legislative intent of protecting society while at the same time
protecting accused persons from being subject to inordinately harsh
penalties not meant for them. In our view, any kingpin conviction,
other than an irrefutably clear factual case of statutory
applicability, is suspect absent the correct charge to the jury.
We are also satisfied that the second and third Stovall
factors, namely law-enforcement reliance and burden on the
administration of justice, are met here as well, no matter how
broadly those factors are defined and how heavily they are
weighted. That is to say, we fully recognize the great potential
for inordinate burden on the criminal justice process if, after
direct review has been completed....and in many cases, long
after....convictions were permitted to be overturned on a wholesale
basis, and hundreds, if not thousands, of new trials were ordered
at a time when evidence had been lost and witnesses who might still
be available had long since forgotten the events in question. We
reach the conclusion that these concerns are not implicated here on
a purely statistical basis. Thus, the data provided to us by the
Administrative Office of the Courts, Criminal Practice Division,
show that between the date of the adoption of N.J.S.A. 2C:35-3 in
1987 and July 19, 1994, when Alexander was decided in the Supreme
Court, there were altogether twenty-nine kingpin convictions, of
which eighteen were based on guilty pleas and only eleven on jury
verdicts. Three of those eleven convicted are Alexander, AfanadorSee footnote 8
and this defendant. Alexander has already been accorded a new
trial. Thus, there is a maximum of ten new trials that could
result from a post-conviction retroactivity holding here.See footnote 9 We are
satisfied that as a matter of balancing, that burden thus imposed
is not inordinate.
With respect to the reliance factor, we appreciate that if the
original and defective model jury charge can be deemed the "old
rule," there is likely to have been reliance on it in most if not
all of the eleven trials. But the original model charge was not
long-lived, there was no long-standing practice, and in the case of
a statute as difficult to interpret and apply as this one, and as
ambiguous and unusually constructed as Alexander recognized it to
be, the model jury charge, in this instance, provided a less than
sturdy basis for reliance.
If Teague were to govern, we are persuaded that the "ordered
liberty" exception would apply. It is a foremost principle of our
criminal jurisprudence that a person accused of a crime cannot be
validly convicted unless the State proves each element of the
offense and the jury is instructed to find each element of the
offense as correctly defined. Considering the magnitude of the
mandatory penalty a conviction under the kingpin statute carries,
we are persuaded that fundamental fairness and justice require full
retroactivity.
There is one further matter we must address. If Alexander is
accorded retroactivity, the question remains as to whether this
defendant was prejudiced by the omission of the proper charge.
That is to say, did the omission meet the standard of the plain-error rule? Our dissenting colleague thinks not because he views
the evidence at trial as overwhelming in favor of guilt of the
kingpin charge even as subsequently defined. We disagree. It is
virtually axiomatic that erroneous instructions are poor candidates
for rehabilitation by the mechanism of the plain-error rule. See,
e.g., State v. Wilson,
128 N.J. 233, 241 (1992); State v. Vick,
117 N.J. 288, 289 (1989). Moreover, we simply do not regard the
evidence here as so clear as to have compelled a jury, if properly
instructed as to the definitional elements of the offense, to
return a guilty verdict. We are of the further view that where the
penalty is so severe, it is inappropriate for the court to
speculate on what a jury, properly instructed, would have done
except in the clearest case. We do not regard this as such a case.
We are rather satisfied that the governing principle here is that
summarized by the Supreme Court in State v. Schmidt,
110 N.J. 258
(1988):
"At the heart of the guarantee of a fair trial
[are] the `jury's impartial deliberations upon
the guilt of a criminal defendant based solely
upon the evidence in accordance with proper
and adequate instructions * * *.'" State v.
Collier,
90 N.J. 117, 122 (1982) (quoting
State v. Simon,
79 N.J. 191, 206 (1979)). It
is "the nondelegable and nonremovable
responsibility of the jury to decide" the
question of guilt or innocence in accordance
with those instructions. Ingenito, supra, 87
N.J. at 211. The "`question is not whether
guilt may be spelt out of a record, but
whether guilt has been found by a jury* * *.'"
Schmidt, supra, 110 N.J. at 265 (quoting
Bollenbach v. United States,
326 U.S. 607,
614,
66 S. Ct. 402, 406,
90 L. Ed. 350, 355
(1946))].
See also State v. Coyle,
119 N.J. 194 (1990), in which the Supreme
Court again made clear that where the elements of the crime are not
correctly charged,See footnote 10 the defendant is entitled to a new trial if
there is a sufficient basis for the jury to find in defendant's
favor on that issue. As Justice Clifford explained, it is enough
if that favorable finding is
a permissible one ... [even if] not the
exclusive one. Although a jury might not
agree with defendant's argument, defendant was
entitled to have the jury decide the issue.
The test is "whether there is room for
dispute." State v. Mauricio,
117 N.J. 402,
415,
568 A.2d 879 (1990) (full citation
omitted). [Coyle, supra, 119 N.J. at 211.]
We are persuaded that if correctly charged, the jury here could
have rationally decided that defendant was not guilty of the drug-kingpin charge.
In challenging the denial of post-conviction relief, defendant
raises other issues as well. His argument that he was denied
effective assistance by appellate counsel is mooted by our
retroactivity finding. We find his claim of denial of effective
assistance of counsel by reason of defendant's absence from the
post-conviction hearing and his claim of prosecutorial
vindictiveness to be without merit. R. 2:11-3(e)(2).
The order denying post-conviction relief is reversed, and we
remand for a new trial on the kingpin charge alone.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-7127-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LLOYD BURGESS,
Defendant-Appellant.
_________________________________________________________________
HUMPHREYS, J.A.D. dissenting.
The Legislature declared in the Comprehensive Drug Reform
Act of 1987, N.J.S.A. 2C:35-1 to -23, that the
unlawful use, manufacture and distribution of
controlled dangerous substances continues to pose a
serious and pervasive threat to the health, safety and
welfare of the citizens of this State. New Jersey
continues to experience an unacceptably high rate of
drug-related crime and continues to serve as a conduit
for the illegal trafficking of drugs to and from other
jurisdictions.
[N.J.S.A. 2C:35-1.1(b).]
The Legislature addressed this "serious and pervasive
threat" by providing in the Act for severe penalties for leaders
of narcotics trafficking networks, the so-called "drug kingpins."
N.J.S.A. 2C:35-3. The defendant was charged as such a leader.
The evidence at his trial overwhelmingly established that he was
the leader of a street-level drug distribution network. He was
convicted of this crime. His conviction was affirmed on appeal.
Now, almost seven years after the trial, his conviction is
reversed because the judge's charge to the jury did not conform
to the charge presently approved by the New Jersey Supreme Court.
At the time it was given, the judge's charge conformed to
existing and accepted legal practice. The charge was not
challenged either at trial or on appeal. The failure to give the
new charge does not impair the accuracy of the jury's verdict.
No fundamental injustice is present. To reverse a criminal
conviction under these circumstances conflicts with basic
principles of criminal justice.
Additionally, the rationale of the majority decision has
likely erased the convictions of virtually every drug kingpin
convicted prior to the Supreme Court decision in State v.
Alexander.
136 N.J. 563 (1994); see also State v. Wright,
143 N.J. 580 (1996). I do not agree that this wholesale reversal of
otherwise valid criminal convictions is mandated by law. I
respectfully dissent.
The statute defines a "leader of a narcotics trafficking network" as one who "conspires with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this State [certain controlled dangerous substances]." N.J.S.A. 2C:35-3. In State v. Afanador, 134 N.J. 162 (1993), the Supreme Court held that the statute, while not a "model of precise
draftsmanship," sufficiently "describes the conduct that it
proscribes." Id. at 169. The Court said that a "person of
average intelligence comprehends the meaning of the words
`organizer, supervisor, financier or manager'" and that the terms
are therefore not facially vague. Id. at 171.
A leader of a narcotics trafficking network, the Court said,
is a person who exercises "some supervisory power over others."
Id. at 172. Accordingly, "[b]ecause street-level dealers
ordinarily lack any supervisory power over their suppliers or
buyers, the statute does not transform every dealer into a
kingpin." Id. at 173. However, a drug kingpin need not
necessarily be superior to street-level distributors and to their
immediate supervisors or suppliers. State v. Alexander, supra,
136 N.J. at 574.
Further, a drug kingpin does not have to be the only or even
the primary organizer, supervisor, financier or manager. See
Model Jury Charges, Leader of a Drug Trafficking Network,
N.J.S.A. 2C:35-3 (1996). A "high-level" or "upper-echelon"
leader of a street-level organization is a drug kingpin if that
person "occupies a significant or important position in the
organization and exercises substantial authority and control over
its operations." State v. Alexander, supra, 136 N.J. at 575.
Thus, one can be a drug kingpin "even at the street-level."
Ibid.
An examination of the evidence in this case demonstrates
that Burgess squarely fits the category of a leader of a drug
trafficking network and is not simply a street-level dealer.
Burgess acted as an organizer, supervisor, financier and manager
of a drug dealing operation which sold thousands of dollars of
cocaine a week at the Lakewood Housing Project. One of his
associates, Brown, sometimes would sell in one day several
thousand dollars worth of cocaine. Burgess admitted to the
police that he purchased cocaine in large units, such as two to
two and one-half kilograms. One kilogram would cost as much as
$17,500. The police calculated that Burgess made over $13,000 in
profit on each kilogram. On cross-examination, Burgess said he
kept $12,800 in cash under a plant in his house for emergencies.
When a search warrant was executed at Burgess's house, the
police found large amounts of cash and savings bonds totalling
over $40,000 and a quantity of gold jewelry. The police also
seized a 1987 Chevrolet IROC Camaro. Burgess admitted to the
police that the money at home, the furniture and the car were the
proceeds of his cocaine business. Burgess had been unemployed
for eighteen months.
Burgess obtained an unnamed "Dominican" source of cocaine in
New York. Burgess had the cocaine picked up in New York and
brought back to New Jersey. Burgess then arranged for the street
sales at the housing project. Burgess provided the money to buy
the drugs and made a profit on the sales by the other drug
dealers.
Burgess had five persons working for him: the co-defendants
Brown and Martin, Burgess's girlfriend, Catalan, and two others,
Williams and Dorsey. Brown told the police and later testified
that he worked for and sold drugs for Burgess, and that Burgess
supplied him with drugs to sell. He told customers including an
undercover police officer that the drugs came from Burgess.
Catalan supplied Brown with cocaine as part of an
arrangement with Burgess. Brown would pay Catalan two-thirds of
the profits from the sale of a package of cocaine and Catalan
would then give him another package to sell. Sometimes Martin
instead of Catalan would supply Brown with cocaine to sell while
collecting the profits for Burgess. After Martin was arrested,
Burgess gave Williams $10,000 to post for Martin's bail. Burgess
employed Dorsey as a "strong arm" man to beat up people who would
not pay.
Williams told the police and later testified that
preparation of the cocaine for distribution was done for Burgess.
Under their arrangement, Burgess would bring several kilograms of
cocaine to Williams' home and Williams would break it down into
small units for sale on the street. In return, Burgess would pay
Williams by providing him with cocaine at a reduced price.
Williams testified that the cocaine belonged to Burgess.
Williams also went to New York City to purchase cocaine for
Burgess. Burgess would tell him where to go, would give him
money for the cocaine, and would pay him for his efforts.
At trial, Burgess was the only witness for the defense. He
admitted that he was a drug dealer. He testified that he was not
an addict and that he was in the drug business for profit. He
claimed that he was merely a street dealer and not an organizer,
manager, financier or supervisor. His testimony was
contradictory, evasive and incredible. Defense counsel admitted
in his summation that the State may be able to prove Burgess
guilty of being "a leader."
In sum, the evidence manifestly established that Burgess was
a drug kingpin. Burgess was not merely a "high-echelon" or an
"upper-level" leader in this drug distribution network, he was
the leader, the drug kingpin.
A defendant applying for post-conviction relief (PCR) is barred from asserting a ground for relief not previously asserted unless: "(a) . . . the ground . . . could not reasonably have been raised in any prior proceeding; or (b) . . . enforcement of the bar would result in fundamental injustice; or (c) . . . denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." See R. 3:22-4.
Thus, absent a constitutional violation or "exceptional circumstances" showing a fundamental injustice, a defendant may not prevail on a PCR application if, as here, the claimed error could have been raised either at trial or on direct appeal. See R. 3:22-4; State v. Mitchell, supra, 126 N.J. at 583; State v. Cerbo, 78 N.J. 595, 605 (1979).
The reason for this prohibition is "firmly founded in the efficient and fair administration of justice." State v. Mitchell, supra, 126 N.J. at 583.
As stated in Mitchell:
[t]he State has a strong interest in achieving
finality. Without procedural rules requiring the
consolidation of issues, litigation would continue
indefinitely in a disconnected and piecemeal fashion.
Each time a petitioner brought forward a new issue,
attorneys and courts would waste their limited
resources acquainting themselves with all of the
complex details necessary to adjudicate it. When the
grounds for challenging a conviction are consolidated,
that investment need occur only once, and judicial
resources can be more efficiently used to decide cases
in a timely fashion. Moreover, relevant issues in a
case are often interrelated. Adjudicating them
separately would impair a court's ability to reach a
result that fairly synthesizes all of the relevant
factors into a just and reasoned outcome.
[126 N.J. at 584.]
Attempting to evade the bar of the rule by "[c]loaking the
claim in constitutional language will not guarantee relief. A
court must scrutinize the assertion to ascertain whether
constitutional rights are truly at stake." Id. at 586.
The record in this case discloses no denial of defendant's
constitutional rights nor any fundamental injustice.
Accordingly, defendant's PCR application was properly denied.
See R. 3:22-4. Even if the rule does not bar defendant's belated
raising of this claim, I would deny the claim on the merits. See
infra.
An announcement of a new rule of criminal law or procedure can wreak havoc in the administration of criminal justice if applied to convictions which were tried and affirmed under the old rule. As stated by Justice Proctor for a unanimous court in State v. Johnson, 43 N.J. 572 (1965):
[s]ociety reasonably expects that when a man is
convicted of a crime by a method not considered unfair
according to the rules of law then in effect, that
conviction will stand. Therefore, unless some
countervailing considerations of "the deepest
sentiments of justice" compel otherwise, a new rule of
criminal law should not be applied retroactively.
[Id. at 584.]
The United States Supreme Court in Teague v. Lane,
489 U.S. 288,
109 S. Ct. 1060,
103 L. Ed.2d 334 (1989), cogently
described the perils of using the doctrine of retroactivity to
vacate criminal convictions. The Court said that:
[a]pplication of constitutional rules not in existence
at the time a conviction became final seriously
undermines the principle of finality which is essential
to the operation of our criminal justice system.
Without finality, the criminal law is deprived of much
of its deterrent effect. The fact that life and
liberty are at stake in criminal prosecutions "shows
only that 'conventional notions of finality' should not
have as much place in criminal as in civil litigation,
not that they should have none." "[I]f a criminal
judgment is ever to be final, the notion of legality
must at some point include the assignment of final
competence to determine legality."
[Id. at 309, 109 S. Ct. at 1074-75,
103 L. Ed 2d at
355 (citations omitted).]
The Court agreed with Justice Harlan's observation that:
No one, not criminal defendants, not the judicial
system, not society as a whole is benefitted by a
judgment providing a man shall tentatively go to jail
today, but tomorrow and every day thereafter his
continued incarceration shall be subject to fresh
litigation.
[Id. at 309, 109 S. Ct. at 1075, 103 L. Ed.
2d at 355
(quoting Mackey v. United States,
401 U.S. 667, 691, 91
S. Ct. 1171, 1179,
28 L. Ed.2d 404, 419 (1971)
(Harlan, J., concurring in part and dissenting in
part).]
The Court pointed out that these principles become even more
critical when retroactivity is used to set aside criminal
convictions in which direct review has been exhausted.
The "costs imposed upon the State[s] by retroactive
application of new rules of constitutional law in
habeas corpus . . . generally far outweigh the benefits
of this application." In many ways the application of
new rules to cases on collateral review may be more
intrusive than the enjoining of criminal prosecutions
for it continually forces the States to marshal
resources in order to keep in prison defendants whose
trials and appeals conformed to then-existing
constitutional standards.
[Teague, supra, 489 U.S. at 309, 109 S. Ct. at 1075,
103 L. Ed.
2d at 355 (citations omitted).]
New Jersey has faithfully followed these precepts. Former
Chief Justice Wilentz stated in State v. Biegenwald,
106 N.J. 13
(1987), that:
[t]he unfairness, if there be any, in not applying the
laws retroactively in these cases [when the criminal
law changes for the benefit of the defendants] is
balanced by the needs of the practical administration
of justice; the system cannot continually retry,
reevaluate, or resentence all those convicted under
prior laws every time that law is changed.
[Id. at 66.]
These principles have had enduring vitality in New Jersey jurisprudence. Research has not disclosed any reported appellate decision in New Jersey, except the majority opinion in this case, in which a new rule of law has been applied to overturn convictions which have become final. No persuasive reason has been advanced why the new rule announced by a divided Court in Alexander is a gale of such force and magnitude that it blows
away virtually all prior convictions.
The Court held in Knight that Sanchez was a new rule of law and therefore its retroactive effect could be limited. 145 N.J. at 258. A five Justice majority in Knight limited the Sanchez rule to defendants who had not exhausted direct review of their convictions. Ibid. Two Justices would deny any retroactivity to Sanchez. Id. at 262.
In Abronski, supra, the Court held that its decision in State v. Reed, 133 N.J. 237, 261-62 (1993) (police must inform a suspect in custody that an attorney wishes to communicate with the suspect), was a new rule of law and should not be applied retroactively. 145 N.J. at 267-68.
In Knight, the Court said:
In State v. Lark, we discouraged undue emphasis on the
old rule/new rule distinction, and noted our reluctance
to decide retroactivity questions on the basis of the
now-discredited common-law view of law as "perpetual
and immutable." In Lark, we cited approvingly the
federal Supreme Court's broad definition of "new rule"
that provides that a "`case announces a new rule when
it breaks new ground or imposes a new obligation on the
States or the Federal Government . . . [or] if the
result was not dictated by precedent existing at the
time the defendant's conviction became final.'"
Moreover, we held that a decision involving an
"accepted legal principle" announces a new rule for
retroactivity purposes so long as the decision's
application of that general principle is "sufficiently
novel and unanticipated."
[State v. Knight, supra, 145 N.J. at 250-51 (citations
omitted).]
Applying the above criteria here, the Alexander decision,
like the Sanchez and Reed decisions, was a "new rule" for
retroactivity purposes. Alexander represented a major and
drastic change in the construction and application of the drug
kingpin statute. The decision broke "new ground," it was not
"dictated" by existing precedent, and its application was "novel
and unanticipated." Consequently, Alexander is subject to
retroactivity analysis.
When a decision sets forth a "new rule," three factors are generally considered to determine whether the rule is to be applied retroactively: (1) the purpose of the new rule and whether it would furthered by retroactive application; (2) the reliance placed on the old rule by those charged with administering it; and (3) the effect the retroactive application
would have on the administration of justice. State v. Knight,
supra, 145 N.J. at 251.
If a decision is to be given retroactive effect, then the
court must determine whether it is given only "pipeline"
retroactivity, applying only to cases still on direct appeal, or
"complete" retroactivity, applying to all cases including those
like Burgess in which all avenues of direct appeal have been
exhausted.
The majority in this case gives Alexander essentially
complete retroactive effect. In State v. Burstein,
85 N.J. 394
(1981), the Supreme Court said that complete retroactive effect
is a drastic result and therefore limited to cases:
where the purpose of the new rule "is to overcome an
aspect of the criminal trial that substantially impairs
its truth-finding function" and which raises "serious
questions about the accuracy of guilty verdicts in past
trials." In such cases the new rule is 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. Because this is
such a drastic result, it has usually been applied only
to those cases where the old rule "substantially"
impaired the reliability of the truth-finding process.
[Id. at 406-07 (emphasis added) (citations omitted).]
Even in cases dealing with the "ultimate fairness and
soundness" of the jury's verdict, complete retroactivity has not
been given. See State v. Czachor,
82 N.J. 392, 408-09 (1980)
(giving only limited retroactivity to the rule prohibiting the
coercive Allen charge).
Similarly, under federal retroactivity principles, complete
retroactivity is given "only in rare circumstances" to cases in
which direct review has been exhausted. State v. Knight, supra,
145 N.J. at 253. The majority finds in this case such a "rare
circumstance," namely, that the failure to give the Alexander
charge was a violation of those procedures that are "implicit in
the concept of ordered liberty." See supra at . It is
difficult to understand how the failure to give a charge which
the three dissenting Justices in Alexander found to be
unnecessary is a violation of procedures that are "implicit in
the concept of ordered liberty."
Moreover, in Teague, supra, the United States Supreme Court
made it clear that the failure to follow such procedures "must
implicate the fundamental fairness of the trial." 489 U.S. at
312, 109 S. Ct. at 1076, 103 L. Ed.
2d at 357. The Court said
that the new procedures to be found "implicit in the concept of
ordered liberty" must be limited in scope "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 358. In Teague, the Court found that the rule in
Batson v. Kentucky,
476 U.S. 79,
106 S. Ct. 1712,
90 L. Ed.2d 69
(1986) (prosecutor cannot exercise preemptory challenges in order
to excuse venirepersons from the petit jury on account of their
race), should not be given complete retroactivity. The Court
said that Batson's requirement is "a far cry from the kind of
absolute prerequisite to fundamental fairness that is `implicit
in the concept of ordered liberty.'" Id. at 314, 109 S. Ct. at
1077, 103 L. Ed.
2d at 358.
Similarly, in this case the new