(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 March 17, 1998 -- Decided June 10, 1998
PER CURIAM
The issue in this appeal is whether defendant may challenge, by post-conviction relief application, his
conviction as a “leader of a narcotics trafficking network” under N.J.S.A. 2C:35-3 ( “drug kingpin statute”).
The facts are as set forth in the opinion of the Appellate Division reported at
298 N.J. Super. 254
(1997). Essentially, defendant, Lloyd Burgess, was involved in a cocaine-trafficking scheme at the Lakewood
Housing Authority's projects with at least four other persons. Two of those persons were street dealers, one
assisted in breaking down larger quantities of cocaine into sales units and at times made purchases of cocaine
for Burgess in New York, and the fourth was Burgess's girlfriend, who assisted in supplying the street
dealers.
Burgess was tried prior to the Supreme Court's decision in State v. Alexander,
136 N.J. 563 (1994).
In that case, the Court held that in order to convict under the drug kingpin statute, a jury should be
instructed that it must find that a defendant held an “upper-echelon” or “high-level” role as a leader of a
drug trafficking network.
At trial on the matter, the trial court's jury instructions tracked the language of the 1988 version of
the Model Jury Charge, which did not explain that the jury must find that Burgess was an “upper-echelon”
leader of the network. Nor did the jury instruction define terms such as “organizer,” “supervisor,”
“financier,” or “manager” in a manner consistent with Alexander. Defense counsel did not object to the
lack of specificity in the trial court's charge, although counsel did argue that Burgess was not an upper-echelon leader of the conspiracy.
Burgess was convicted as a leader of a narcotics trafficking network under the drug kingpin statute
and of two counts of second-degree drug distribution and six counts of third-degree drug distribution. He
was sentenced to life imprisonment with twenty-five years of parole ineligibility on the drug kingpin
conviction, to seven years on each of the second-degree convictions, and to four years on each of the third-degree convictions, all to run concurrently.
On appeal, Burgess did not raise the trial court's failure to define the terms of the kingpin statute.
He did raise the definitional argument in his initial petition for certification to the Supreme Court, which he
submitted after the Appellate Division filed its decision in State v. Alexander, 264 N.J. Super. 102 (1993), but
before the Supreme Court announced its decision in that matter. Burgess's petition was denied.
Following the Supreme Court's decision in Alexander, Burgess filed a pro se petition for post-conviction relief on the ground that the trial court's instruction did not conform to the charge endorsed by
the Supreme Court in Alexander. The State opposed that petition, arguing that Rule 3:22-4, which governs
post-conviction relief applications, bars post-conviction relief on grounds not raised on direct appeal; that
Alexander was not retroactive; and that any error was harmless because the State's evidence left no doubt
that Burgess was a kingpin within the meaning of the drug kingpin statute. The trial court agreed that the
challenge to the jury instruction was procedurally barred and that Alexander should not apply retroactively to
Burgess's case.
On appeal, a majority of the Appellate Division concluded that the Supreme Court's decision in
Alexander required reversal of Burgess's 1990 kingpin conviction and that the procedural bar of Rule 3:22-4
should not apply because denial of post-conviction relief would violate constitutional guarantees. One judge
dissented, finding no legal justification to reverse Burgess's well-merited kingpin conviction.
The State appealed as of right because of the dissent below.
HELD: Because it failed to define the kind of supervisory status that qualifies a defendant as a drug kingpin
under the statute, the trial court gave an insufficient explanation of a material element resulting in prejudicial
error, and Burgess is entitled to a new trial on the drug kingpin count.
1. Alexander did not create a new rule of law but merely executed the Legislature's intent in passing the
drug kingpin statute. (pp. 4-5)
2. Because Burgess sought to raise the jury instruction issue in his direct appeal to the Supreme Court, the
filing and denial of the petition were part of the “the proceedings resulting in the conviction,” and Rule 3:22-4 should not bar this application for post-conviction relief. (p. 5)
3. By failing to define the kind of supervisory status that qualifies a defendant as a drug kingpin, the trial
court in this case gave an insufficient explanation of a material element, and such a failure to charge the jury
on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense
counsel. (pp. 5-6)
4. Arguments of counsel cannot substitute for correct instructions of law. (p. 6-7)
5. Because there was a sufficient basis for a properly charged and rational jury to find that Burgess was not a
drug kingpin, the trial court's failure to charge the jury in conformance with Alexander did not constitute
harmless error. (p. 7)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN
and COLEMAN join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
A-
114 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LLOYD BURGESS,
Defendant-Respondent.
Argued March 17, 1998 -- Decided June 10, 1998
On appeal to the Superior Court, Appellate
Division, whose opinion is reported at 298
N.J. Super. 254 (1997).
Nancy A. Hulett, Deputy Attorney General,
argued the cause for appellant (Peter
Verniero, Attorney General of New Jersey,
attorney).
Salvatore C. Adamo argued the cause for
respondent.
J. Michael Blake, Assistant Deputy Public
Defender, argued the cause for amicus curiae,
the Office of the Public Defender (Ivelisse
Torres, Public Defender, attorney).
PER CURIAM
Defendant seeks post-conviction relief from his 1990 conviction as a "leader of a narcotics trafficking network" under N.J.S.A. 2C:35-3, which has come to be known as the drug kingpin statute. The trial court sentenced defendant on that count to life imprisonment with twenty-five years of parole ineligibility.
Defendant was also convicted on two counts of second-degree and
six counts of third-degree drug distribution. The trial court
sentenced him to seven years on each of the second-degree
convictions and four years on each of the third-degree
convictions. All sentences were ordered to run concurrently.
The facts are set forth in the opinion of the Appellate
Division reported at
298 N.J. Super. 254 (1997). Defendant and
others were engaged in drug trafficking at the Lakewood Housing
Authority's projects:
[D]efendant 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.
Defendant's case was tried, his conviction was affirmed by
the Appellate Division, and this Court denied his petition for
certification,
134 N.J. 566 (1993), all before this Court
announced its decision in State v. Alexander,
136 N.J. 563
(1994). Alexander held that in order to convict under N.J.S.A.
2C:35-3, a jury should be instructed that it must find that a
defendant held an "upper-echelon" or "high- level" role as a
leader of a drug trafficking network. Alexander, supra, 136 N.J.
at 570-71.
The trial court's instructions to the jury tracked the
language of the 1988 version of the Model Jury Charge, which
called for little more than a recitation of the words of the
kingpin statute together with definitions of "conspiracy" and
"distribute." New Jersey Model Jury Charges, Criminal, Leader of
a Narcotics Trafficking Network, N.J.S.A. 2C:35-3 (Oct. 17,
1988). The charge did not explain that the jury must find that
the defendant was an "upper-echelon" leader of the network. The
charge did not define terms such as "organizer," "supervisor,"
"financier," or "manager" in a manner consistent with Alexander.
Defense counsel did not object to the lack of specificity in
the trial court's charge, and the trial court's failure to define
the terms of the kingpin statute was not a basis of defendant's
appeal to the Appellate Division. Defendant did raise the
definitional argument in his initial petition for certification
to this Court, which he submitted after the Appellate Division
filed its decision in State v. Alexander,
264 N.J. Super. 102
(1993). That petition was denied.
134 N.J. 566.
Following our decision in Alexander, defendant filed a pro
se petition for post-conviction relief on the ground that the
trial court's instruction did not conform to the charge endorsed
by this Court in Alexander. The State countered by arguing (1)
that Rule 3:22-4 bars post-conviction relief on grounds not
raised on direct appeal; (2) that Alexander was not retroactive;
and (3) that the State's evidence left no doubt that defendant
was a kingpin within the meaning of the statute, so that any
error was harmless. The trial court agreed that the challenge to
the jury instruction was procedurally barred and that Alexander
should not apply retroactively to defendant's case.
On appeal, a majority of the Appellate Division concluded
that our decision in Alexander required reversal of defendant's
1990 kingpin conviction, 298 N.J. Super. at 262-72, and that the
procedural bar of Rule 3:22-4 should not apply because denial of
post-conviction relief would violate constitutional guarantees.
Id. at 261. One judge dissented, finding no legal justification
to reverse defendant's well-merited kingpin conviction. Id. at
276 (Humphreys, J., dissenting). We now affirm the judgment of
the majority of the Appellate Division.
The issues in this appeal are (1) whether the principles of
Alexander should apply retroactively to a case tried before that
decision issued, (2) whether post-conviction relief on the basis
of Alexander is barred under Rule 3:22-4, and (3) whether such
relief is warranted.
We considered whether the principles of Alexander should be applied to cases tried before that decision in State v. Afanador , 151 N.J. 41, 57-59 (1997) (Afanador II). We there held that Alexander did not create a new rule of law but merely executed the Legislature's intent in passing the drug kingpin statute. Id. at 57. Thus, the question of the retroactivity of our Alexander decision does not arise. Ibid. Nor need we address the application of the federal retroactivity principles that
appear in Griffith v. Kentucky,
479 U.S. 314,
107 S. Ct. 708,
93 L. Ed.2d 649 (1987), and Teague v. Lane,
489 U.S. 288,
109 S.
Ct. 1060,
103 L. Ed.2d 334 (1989).
The State urges that Rule 3:22-4 bars defendant's Alexander-based challenge. That rule provides:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Defendant sought to raise the instruction issue in his
direct appeal to this Court. We denied his petition for
certification. Because the filing and denial of the petition
were part of "the proceedings resulting in the conviction," Rule
3:22-4 should not bar this application for post-conviction
relief.
The State argues that defendant is not entitled to post-conviction relief because the deficiency of the jury instruction
did not result in a substantial denial of defendant's
constitutional rights. We disagree. "Appropriate and proper
charges to a jury are essential to a fair trial." State v.
Green,
86 N.J. 281, 287 (1981). And proper explanation of the
elements of a crime is especially crucial to the satisfaction of
a criminal defendant's due process rights. See State v. Martin,
119 N.J. 2, 15-17 (1990). We held in Alexander, supra, that the
"status or position" of a drug kingpin "should be considered a
material element of the crime." 136 N.J. at 570. By failing to
define the kind of supervisory status that qualifies a defendant
as a drug kingpin, the trial court in this case gave an
insufficient explanation of a material element. We stated in
State v. Federico,
103 N.J. 169, 176 (1986), that such "failure
to charge the jury on an element of an offense is presumed to be
prejudicial error, even in the absence of a request by defense
counsel."
The denial of defendant's constitutional rights was not made
any less prejudicial by the fact that defendant argued at trial
that he was not an upper-echelon leader of the conspiracy.
"Arguments of counsel cannot substitute for correct instructions
of law. The trial judge is the most authoritative figure in the
courtroom. Jurors naturally look to the judge for definition of
the offenses charged." Afanador II, supra, 151 N.J. at 56. The
fact that the defense put defendant's leadership status in
dispute does not mitigate the unfairness of an instruction that
would have allowed the jury to convict defendant as a kingpin
when defendant's conduct, as the jury might have found it, fell
short of "leadership of a drug trafficking network." Alexander,
supra, 136 N.J. at 570-71.
The State contends that the evidence in this case was not
equivocal, as it was in State v. Afanador,
134 N.J. 162, 178
(1993) (Afanador I). The State's evidence showed that defendant
operated a drug distribution network and employed several people
to help him run it--Brown, who sold the drugs; Catalan and
Martin, who replenished the supply when Brown sold the cocaine;
another "strong arm" man to collect debts; and Williams, who
would take trips to New York City to buy cocaine for defendant
and help defendant package the drugs for retail sale. Defendant,
as the leader of the conspiracy, kept himself well insulated from
these activities. However, the factual issues were in dispute.
Defendant denied that Brown sold cocaine for him, that Martin
worked for him, that he had asked Catalan to work for him, and
that he employed an enforcer. On this record, a correctly
charged jury could reasonably have concluded that defendant was
not guilty under N.J.S.A. 2C:35-3. There was a sufficient basis
for a properly charged and rational jury to find that defendant
was not a drug kingpin. Therefore, under State v. Coyle,
119 N.J. 194, 211 (1990), defendant is entitled to a new trial on the
drug kingpin count. He stands convicted of the numerous counts
of second- and third-degree drug distribution.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in this opinion.
NO. A-114 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LLOYD BURGESS,
Defendant-Respondent.
DECIDED June 10, 1998
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY