(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 April 28, 1997 -- Decided July 23, 1997
O'HERN, J., writing for a unanimous Court.
In State v. Alexander, this Court held that in order to convict a defendant as a drug kingpin under
N.J.S.A. 2C:35-3, a jury should be instructed that it must find that the defendant held an “upper echelon” or
“high level” role as a leader of a drug trafficking network. The issues posed in this appeal are: 1) whether
the principles of Alexander should apply retroactively to this case, which was tried before Alexander was
decided; 2) whether Afanador's petition seeking post-conviction relief from his conviction as a kingpin on
the basis of Alexander is procedurally barred; and 3) whether such relief is warranted.
A more complete recitation of the facts is set forth in the Court's October 1993 opinion in State v.
Afanador (Afanador I). Afanador was convicted in 1988 under the drug kingpin statute for his participation
in four drug transactions with an undercover detective. In March 1989, Afanador was sentenced to two
consecutive terms of life imprisonment, each with a twenty-five year period of parole ineligibility. On
appeal, Afanador, challenged the constitutionality of the kingpin statute, the excessiveness of his sentence,
and the competency of his trial counsel. In 1991, the Appellate Division rejected the challenges to the
constitutionality of the kingpin statute and dismissed the ineffective-assistance-of-counsel claim. The court,
however, remanded the sentence for reconsideration of the two consecutive life terms imposed. On remand
in May 1992, the trial court reduced Afanador's sentence to one term of life imprisonment with a thirty-year
period of parole ineligibility. Other sentences were made concurrent.
In September 1992, the Supreme Court granted Afanador's pro se petition for certification.
Afanador argued, among other things, that the jury charge was not consistent with the legislative intent of
the drug kingpin statute because the charge had not required a finding that he was an upper-echelon
member of the drug network. Pursuant to the Court's request, Afanador was assigned pro bono counsel
who began representing Afanador in October 1992. In November 1992, the Court amended its Order
granting certification, limiting its review to the constitutionality of the drug kingpin statute. Finally, in
October 1993, the Court held that the drug kingpin statute was facially constitutional.
Because the proper jury instruction issue was pending consideration by the Court in State v.
Alexander, the Court deferred this same issue raised in Afanador I. In July 1994, the Court held in
Alexander that trial courts must instruct juries in a manner consistent with the Legislature. As such, courts
should instruct the jury that to meet the definition of a kingpin, a defendant's position and status must be at
a superior level in relation to others in the network and the defendant has exercised in that capacity
supervisory power or control over others engaged in organized drug-trafficking.
In December 1994, six months after the decision in Alexander, Afanador sought post-conviction
relief (PCR) in part on the basis of improper jury instructions. The trial court, concluding that the interests
of justice warranted a relaxation of the procedural bars to hearing the matter, held that the error in the jury
charge could not be raised on PCR because trial counsel had not objected to the charge at trial. The court
also concluded that Alexander announced a new rule of law that should not be applied retroactively. The
trial court dismissed Afanador's other claims concerning ineffective assistance of counsel and use of perjured
testimony.
The Appellate Division affirmed the dismissal substantially for the same reasons as the trial court.
In addition, the Appellate Division held that the PCR petition was barred under Rules 3:22-4 and -5 because
all issues could have been or were raised on direct appeal. The court also held that the PCR petition was
time barred under Rule 3:22-12 because it was not filed within five year's of Afanador's conviction.
The Supreme Court granted Afanador's petition for certification.
HELD: Because Afanador was denied certification on the issue of proper jury instructions, his petition for
post-conviction relief is not procedurally barred by Rules 3:22-4, -5, or-12. The Court's decision in
Alexander does not constitute a new rule of law and should be applied retroactively to Afanador's
case. The absence of an Alexander instruction constituted plain error clearly capable of bringing
about an unjust result; therefore, a new trial on the drug kingpin count is warranted.
1. Rule 3:22-4 essentially bars all grounds for PCR that could have been raised in a prior proceeding.
Afanador sought to raise the issue of the proper jury instruction in his direct appeal but the Court denied
certification on that issue. Thus, the Alexander issue could not have been raised until after Afanador's
direct appeal had been exhausted. (pp. 6-9)
2. Rule 3:22-5 precludes PCR on an issue previously adjudicated. The issue sought to be precluded must be
identical or substantially equivalent to the issue already adjudicated on the merits. Afanador I only
addressed the constitutionality of the drug kingpin statute; the jury charge issue was not adjudicated in that
case. Therefore, Rules 3:22-4 and -5 do not bar Afanador's jury instruction claim. (pp. 9-10)
3. Rule 3:22-12 requires that a PCR petition challenging a judgment or conviction be brought within 5 years
of the entrance of the judgment or conviction. In the context of PCR, a court should only relax the bar of
Rule 3:22-12 under exceptional circumstances. Afanador was caught in a Catch-22 situation. For four years
and seven months, as long as he pursued his direct appeal, he could not raise the jury instruction issue on
PCR and he was unable to raise the issue before the Court because of the the limited grant of certification.
It would be unfair to allow Alexander but not Afanador to benefit from the Court's decision that Afanador
tried to challenge, pro se, in 1992. (pp. 10-12)
4. Because Afanador did not object to the challenged instruction at trial, he waived the right to challenge
the instruction on appeal. However, a reviewing court may reverse on the basis of unchallenged error if it
finds plain error clearly capable of producing an unjust result. The Afanador I charge tracked the language
of the 1988 Model jury charge; it did not explain that the jury must find that defendant's status as an upper-echelon leader of the network was an essential element of the offense. Nor were certain terms defined in
the charge in a manner consistent with Alexander. Thus, the absence of an Alexander instruction constituted
plain error clearly capable of bringing about an unjust result. (pp. 12-16)
5. Alexander did not promulgate a new rule of law; it clarified ambiguities in the statute. Nonetheless, even
if it were thought to be a new rule of law, the Alexander rule fosters the reliability of the truth-finding
process. As such, complete retroactivity is suggested. The erroneous jury instructions were sufficiently
prejudicial to Afanador to warrant a new trial on the kingpin charge. (pp. 17-21)
Judgment of the Appellate Division denying post-conviction relief on the drug-kingpin count is
REVERSED and that charge is REMANDED to the Law Division for proceedings consistent with this
opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and
COLEMAN join in JUSTICE O'HERN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
146 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MOISES AFANADOR,
Defendant-Appellant.
Argued April 28, 1997 -- Decided July 23, 1997
On certification to the Superior Court,
Appellate Division.
Lawrence S. Lustberg argued the cause for
appellant (Crummy, Del Deo, Dolan, Griffinger
& Vecchione, attorneys; Mr. Lustberg and Mark
A. Berman, on the brief).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
O'HERN, J.
State v. Alexander,
136 N.J. 563 (1994), held that in order
to convict one as a drug kingpin 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 leader of a drug
trafficking network. The principal issues in this appeal are (1)
whether the principles of Alexander should apply retroactively to
a case tried before that decision, (2) whether defendant's
petition seeking post-conviction relief from his conviction as a
kingpin on the basis of Alexander is procedurally barred, and (3)
whether such relief is warranted.
Other people participated in the transactions. Defendant's nephew "Popo" was involved in the first transaction during which defendant spoke of having $2,300 "on the street" owed to him as a result of his "business." Popo directed cars from defendant's driveway and performed other tasks. In addition, a woman was dispatched to find a scale to weigh the drugs. In the second transaction, defendant's wife directed the detective to the back of the house and to the basement, where defendant was located. Defendant described himself to the undercover detective as being in the drug business. After removing the cocaine from an empty lightbulb box and completing the transaction, defendant "freebased" some cocaine. In the third transaction, Popo, Johnny Montalvo, Pedro Ortiz, and one "Cholo" were involved. Defendant was overheard telling another drug dealer "it was in," presumably referring to a drug shipment. In the fourth transaction,
defendant's uncle, Osualdo Acobes, served as a courier and
assisted with weighing the drugs while a person named "Nando"
counted the money and arranged delivery with the detective. This
time defendant said he "had $27,000 on the street." There were
other background facts and circumstances, including discussions
of larger sums of money and drugs. Defendant contended, however,
that such discussions were initiated by the undercover agent and
that he, Afanador, was merely the go-between for the undercover
agent and the sellers. These facts sustained defendant's 1988
conviction as a drug kingpin. In March 1989, the trial court
sentenced defendant to two consecutive terms of life
imprisonment, each with a twenty-five year period of parole
ineligibility. Defendant asserted that use of one of the
factors, defendant's involvement in organized crime, constituted
inappropriate double counting.
On appeal, defendant, through prior counsel and his
supplemental pro se submission, challenged the constitutionality
of the kingpin statute, the excessiveness of the sentence, and
the competency of his trial counsel. In 1991, the Appellate
Division rejected defendant's challenges to the constitutionality
of the kingpin statute. It also dismissed the ineffective
assistance of counsel claim. The court, however, remanded the
sentence for reconsideration of the two consecutive life terms
imposed. The Appellate Division found the sentence troubling
because of "defendant's obvious mid-to-low level position on the
pyramid of potential kingpin targets."
On remand in May 1992, the trial court reduced defendant's
sentence for being a drug kingpin to one term of life
imprisonment, with thirty years of parole ineligibility. Other
sentences were made concurrent. In September 1992, we granted
defendant's pro se petition for certification. The petition
asserted, in addition to other challenges, that the jury charge
was not consistent with the legislative intent of the drug
kingpin statute because the charge had not required a finding
that defendant was an upper-echelon member of a drug network.
Pursuant to this Court's request that defendant be assigned pro
bono counsel, present counsel began representing Afanador in
October 1992. In November 1992, the Court amended the Order
granting certification and limited our review to the statute's
constitutionality, facially or as applied.
130 N.J. 601 (1992).
In October 1993, this Court held that the drug kingpin
statute was not void for vagueness. Afanador I, supra,
134 N.J. 162. The dissenting members of the Court agreed that the statute
was facially constitutional. Id. at 180. They reasoned:
The words of the statute, such as
"organizer," "supervisor," "financier," or
"manager," are indeed familiar and easily
understandable. Although such terms are not
vague in themselves, the trial court's
failure to relate the terms of the statute to
the statutory purposes leaves the jury
without the guidance necessary to assess
whether the defendant is in fact an "upper-echelon" member of a drug-trafficking
network, as was intended by the Legislature
for enhanced punishment. Absent instructions
relating the general terms of the Act to its
purposes, a defendant does not receive a fair
trial.
Because the question of a proper instruction was pending
consideration by the Court in State v. Alexander,
264 N.J. Super. 102 (App. Div. 1993), the majority in Afanador I explicitly
deferred review of the jury charge issue until Alexander was
before the Court. Afanador I, supra, 134 N.J. at 178-79. In
November 1993, we granted certification in Alexander to resolve
the jury charge issue.
134 N.J. 564 (1993). Afanador's counsel
submitted an amicus curiae brief and argued in that capacity in
favor of Alexander's challenge to the jury instruction.
In July 1994, we held that trial courts must instruct juries
in a manner consistent with the intent of the Legislature.
Alexander, supra, 136 N.J. at 565. We held that courts should
instruct a jury that to meet the definition of a kingpin, a
defendant's position and status must be at a superior level in
relation to others in the network and that the defendant has
exercised in that capacity supervisory power or control over
others engaged in organized drug-trafficking. Id. at 574.
In December 1994, six months after our decision in
Alexander, defendant sought post-conviction relief (PCR) in part
on the basis of improper jury instructions. The original trial
judge held a hearing on the petition in August 1995, but died
before he could render a decision. The matter was transferred to
another judge. Although the State raised the procedural bars of
Rules 3:22-4, -5, and -12, the trial court concluded that the
interests of justice warranted relaxation of the rules. Because
trial counsel had failed to object to or to propose a revision to
the instruction, the court concluded that the error in the jury
charge could not be raised on post-conviction relief. The court
further held that Alexander announced a new rule of law that
should not be applied retroactively. The trial court dismissed
other claims of ineffective assistance of counsel and use of
perjured testimony because defendant failed to submit a prima
facie showing to warrant an evidentiary hearing.
The Appellate Division affirmed the dismissal substantially
for the same reasons as the trial court. In addition, the
Appellate Division held that the PCR petition was barred under
Rules 3:22-4 and -5 because all issues either could have been or
were raised on direct appeal. The court also held that the PCR
petition was time barred under Rule 3:22-12 because it was not
filed within five years of defendant's conviction. We granted
defendant's petition for certification.
147 N.J. 578 (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 collateral
attack.
[Preciose, supra, 129 N.J. at 459 (quotations
omitted).]
PCR relief, however, is neither a substitute for direct appeal,
Rule 3:22-3, nor an opportunity to relitigate matters already
decided on the merits, Rule 3:22-5. Ibid.; see also State v.
Mitchell,
126 N.J. 565, 583 (1992). Further, PCR cannot be used
to circumvent issues that could have, but were not raised on
appeal, unless the circumstances fall within one of three
exceptions. R. 3:22-4. In addition, a PCR petition challenging
a judgment or conviction is time barred if not filed within five
years of the act in question. R. 3:22-12.
We have emphasized the importance of the procedural bars.
Mitchell, supra, 126 N.J. at 583. Both the Rules and their
exceptions should be conscientiously applied to the unique
circumstances of each case with due respect for both the rule and
any exception. Id. at 589; see also R. 1:1-2 (allowing
relaxation of Rules in specifically alleged circumstances of
injustice). "However, 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." Preciose, supra, 129 N.J. at 477-78.
The first procedural hurdle is Rule 3:22-4, which
essentially bars all grounds for PCR that could have been raised
in a prior proceeding. The Rule provides:
Any ground for relief not raised in a prior
proceeding . . . 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.
The problem with invoking Rule 3:22-4 in these circumstances is that defendant sought to raise the issue of the instruction in his direct appeal to this Court, but we denied certification on that issue. Afanador I, supra, 134 N.J. at 178. In his pro se petition, defendant explicitly raised the issue of the adequacy of the jury charge. His brief stated: "The Model Jury Charge [as applied in the original trial was] fatally flawed in that it [was] not totally consistent with the legislative intent for the prosecution and conviction of a crime under that statute." We do not know precisely what assigned counsel would have argued because we denied him the opportunity to do so. Less than one month after the decision in Afanador I, we granted certification on the jury instruction issue. Alexander, supra, 134 N.J. 564. In short, because of our ruling, assigned counsel could not
reasonably have raised the Alexander issue until defendant's
direct appeal had been exhausted.
The next question is whether defendant should be barred by
Rule 3:22-5, which precludes PCR on issues previously
adjudicated. Rule 3:22-5 provides:
A prior adjudication upon the merits of any
ground for relief is conclusive whether made
in the proceedings resulting in the
conviction or in any post-conviction
proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any
appeal taken from such proceedings.
Under Rule 3:22-5, prior adjudication of an issue, including a decision on direct appeal, will ordinarily bar a subsequent post-conviction hearing on the same basis. PCR will be precluded “only if the issue is identical or substantially equivalent" to the issue already adjudicated on the merits. McQuaid, supra, 147 N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 512-13, 30 L. Ed.2d 438, 444 (1971) (emphasis added)). Although the constitutionality of the drug kingpin statute and the jury instruction claims were intertwined, only the former was adjudicated in Afanador I. Defendant is not attempting to relitigate any issue, but instead is seeking to apply to his case the principle of law that we declined to consider in Afanador I.
In short, Rule 3:22-5 does not bar defendant's jury instruction claim. This Court precluded adjudication of the
issue when it limited its grant of certification.
130 N.J. 601
(1992).
The third procedural hurdle is Rule 3:22-12, which provides:
A petition to correct an illegal sentence may
be filed at any time. No other petition
shall be filed pursuant to this rule more
than 5 years after rendition of the judgment
or the sentence sought to be attacked unless
it alleges facts showing that the delay
beyond said time was due to defendant's
excusable neglect.
In the context of post-conviction relief, a court should only relax the bar of Rule 3:22-12 under exceptional circumstances. The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits. Mitchell, supra, 126 N.J. at 580. Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay. Ibid. As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases. Id. at 576; see also State v. D.D.M., 140 N.J. 83 (1995) (holding seven and eleven year delays in filing PCR sentencing claims excessive absent compelling circumstances); McQuaid, supra, 147 N.J. at 497 (holding unjustifiable defendant's request for PCR seven years after guilty plea from which defendant gained substantial benefit does not demonstrate manifest injustice pursuant to Rule 3:21-1).
Under Rule 3:22-12, the five-year period tolls according to
whether a defendant is challenging the conviction or the
sentence. State v. Dugan,
289 N.J. Super. 15, 19 (App. Div.),
certif. denied,
145 N.J. 373 (1996). Defendant was convicted in
1988 and sentenced in 1989. Resentencing occurred in 1992.
Because defendant is challenging the conviction, the State argues
that he is precluded by Rule 3:22-12. There was no occasion for
defendant to file a PCR petition during the four years and seven
months in which he was exhausting his direct appeal. No court
could have entertained PCR while his direct appeal was pending.
Realistically, the PCR clock did not begin to run until October
1993 when we affirmed Afanador I. Less than one month later, we
granted certification in Alexander. Afanador's counsel argued
the issue of the jury instruction in Alexander in January 1994.
The State could not have been relying on the finality of the
judgment in Afanador I in such circumstances.
After Alexander was decided in July 1994, pro bono counsel
undertook, without assignment, to represent Afanador in his PCR
application. He filed his petition in December 1994. At oral
argument before the trial court in April 1995, defense counsel
countered the five-year bar by asserting that the PCR petition
could be filed within five years of the resentencing that
occurred in May 1992. This calculation would bring defendant
within the five year range. The law is otherwise. Dugan, supra,
289 N.J. Super. 15.
Although we are somewhat troubled by the six-month delay
after Alexander before defendant filed his PCR petition, pro bono
counsel had to review the record on the other issues in order to
prepare a petition. Moreover, defendant had sought to raise the
jury instruction issue within the five year period. Defendant
was caught in a Catch-22 situation. For four years and seven
months, as long as he pursued a direct appeal, Afanador could not
raise the issue on PCR. Nor was he able, because of our ruling,
to raise the issue before us. As the Appellate Division
observed, “[the Supreme Court] effectively foreclosed defendant,
who did everything within his power to preserve the issue, from
obtaining relief from us. Any further relief must come from the
Supreme Court."
To allow Alexander but not Afanador to benefit from the
Court's resolution of the jury instruction issue that Afanador
sought to challenge in his August 1992 pro se petition would be
unjust. Consequently, we hold that defendant's PCR petition is
not procedurally barred. We turn now to the merits of the PCR
claim.
An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. State v. Martin, 119 N.J. 2, 15 (1990). Correct jury instructions are “at
the heart of the proper execution of the jury function in a
criminal trial.” Alexander, supra, 136 N.J. at 571.
Because defendant did not object to the challenged
instruction, he waived the right to challenge the instruction on
appeal. R. 1:7-2. A reviewing court may reverse on the basis of
unchallenged error only if it finds plain error clearly capable
of producing an unjust result. R. 2:10-2. Plain error, in the
context of a jury charge, is "[l]egal impropriety in the charge
prejudicially affecting the substantial rights of the defendant
sufficiently grievous to justify notice by the reviewing court
and to convince the court that of itself the error possessed a
clear capacity to bring about an unjust result." State v.
Jordan,
147 N.J. 409, 422 (1997). Erroneous instructions are
poor candidates for rehabilitation as harmless, and are
ordinarily presumed to be reversible error. State v. Brown,
138 N.J. 481, 522 (1994).
In Alexander, we held that an instruction under the kingpin
statute must include more than the statutory language. N.J.S.A.
2C:35-3 provides:
(1) that the defendant conspired with at
least two others; (2) that the defendant was
an organizer, supervisor, financier, or
manager; (3) that the defendant engaged in a
conspiracy for profit; and (4) that the
conspiracy included a scheme or course of
conduct unlawfully to manufacture,
distribute, dispense, or transport a
controlled dangerous substance.
In order to achieve the Legislature's intent to target only the
most culpable, upper-echelon drug offenders, we reasoned that
trial courts should convey to the jury that the "status or
position of the defendant should be considered a material element
of the crime." Id. at 570. Status or position can be determined
by examining factors such as the seriousness of the offense and
the role of the actor in the drug network. Id. at 569 (citing
N.J.S.A. 2C:35-1).
There are two requirements for a proper Alexander charge.
Id. at 574-75. First, a court should instruct the jury that a
defendant's position and status should be at a superior or higher
level than others involved in the drug trafficking network. Id.
at 574. To be an “upper-echelon” leader, the accused must
exercise supervisory control or power over others engaged in the
organized drug-trafficking network. Ibid. Second, the jury
instruction “should also amplify other statutory terms that are
expressed as material elements of the crime under [the drug
kingpin statute].” Id. at 575 (emphasis added). Terms such as
“organizer, supervisor, financier, or manager” should be
explained so that the jury may fully understand their meaning and
significance in relation to the statute. Ibid. The Court
recommended the following as possible explanations:
[T]he court might define “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.
The Afanador I jury charge tracked the language of the 1988
Model Jury Charge, which stated without amplification the words
of the kingpin statute. The charge did not explain that the jury
must find that defendant's status as an “upper-echelon” leader of
the network was an essential element of the offense. Nor did the
instructions amplify the terms of the statute. Only the
statutory language was read to the jury. Terms such as
“organizer, supervisor, financier, or manager” were not defined
in the jury charge in a manner consistent with Alexander.
In assaying the effect of the trial court's failure to
charge the jury correctly under the drug kingpin statute, we
ordinarily recognize that the 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. State v.
Federico,
103 N.J. 169, 176 (1986) (citing State v. Grunow,
102 N.J. 133 (1986); State v. Collier,
90 N.J. 117 (1982); State v.
Green,
86 N.J. 281 (1981)). Thus, in State v. Butler, the Court
reversed a felony-murder conviction because the trial court
failed to instruct the jury on the elements of the underlying
robbery felony.
27 N.J. 560 (1958). In Butler, Justice Francis
explained:
To fail to define the offense attributed to
the accused and the essential elements which
constitute it, is to assume that jurors are
educated in the law -- an assumption which no
one would undertake to justify . . . .
Accordingly, we hold the view that a
mandatory duty exists on the part of the
trial judge to instruct the jury as to the
fundamental principles of law which control
the case. Among such principles is the
definition of a crime, the commission of
which is basic to the prosecution against the
defendant. And the duty is not affected by
the failure of a party to request that it be
discharged.
The Afanador trial court failed to instruct the jury
concerning the "fundamental principles of law" governing the
case. The State argues that the jury was made aware by counsel
of defendant's arguments that he was not an upper-echelon leader,
and thus any error in the instruction was harmless. However,
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. This is not a case in which the
instructions were merely capable of improvement. State v.
Delibero,
149 N.J. 90, 106 (1997). They were incorrect. The
"equivocal" nature of the evidence, Afanador I, 134 N.J. at 178,
was such that a correctly charged jury could have reasonably
concluded that defendant was not a kingpin. We therefore hold
that the absence of an Alexander instruction constituted plain
error capable of bringing about an unjust result.
The Retroactivity Issue
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 (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. 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 (1981).
In executing the Legislature's intent Alexander did not promulgate a new rule of law. State v. Burgess, 298 N.J. Super.
254, 267 (App. Div. 1997). In Alexander, the Court clarified
ambiguities in the statute. 136 N.J. at 574. As stated by
Justice Handler for the Court,
[a]n instruction that makes explicit the
implicit elements of the crime does not
involve rewriting the statute or redefining,
modifying, amending, or adding to the
substantive elements prescribed by the
statute because that instructional definition
conforms to the legislative intent and
carries out that intent.
In addition, the Court's language in Alexander did not bespeak an intent to formulate a new rule. State v. Reed, 133 N.J. 237 (1993) (promulgating new rule for questioning suspects in custody). In Reed, the Court used phrases such as “we enunciate,” “we announce today,” and “future judicial inquiry” at least five times to demonstrate its intention to create a new rule. Id. at 265-67. Alexander contains no similar language;
the decision made explicit elements of the kingpin offense that
were implicit in the statute but had not been properly charged to
the jury. Thus, Alexander did not create a new rule of law.
Knight 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,
317 A.2d 689.
"The first factor, the 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. On the
other hand, if the old rule was altered
because it substantially impaired the
reliability of the truth-finding process, the
interest in obtaining accurate verdicts may
suggest that the new rule be given complete
retroactive effect. Id. at 406-07.
[145 N.J. at 251.]
The purpose of the Alexander rule is to provide clear instructions to a jury so that society will be protected from the
most invidious drug conspiracies and that the accused who is not
a kingpin will not suffer unjustly the severe penalties for that
offense. Burgess, supra, 298 N.J. Super. at 269. Because the
Alexander rule fosters the "reliability of the truth-finding
process," the first Nash factor suggests complete retroactive
effect.
The next question is whether the second factor, past
reliance, should outweigh the first factor. The drug kingpin
statute was enacted in 1987. The Model Jury Charge was adopted
in October 1988. Afanador was tried in December 1988 and
sentenced in 1989. There was no definitive case law regarding
the jury instruction prior to Alexander. Thus, past reliance is
not a strong argument for precluding retroactive application.
The third factor, the administration of justice, does not
appear sufficient to outweigh the first factor. See Burgess,
supra, 298 N.J. Super. at 269-70 (discussing potential effect of
retrospective application of Alexander). We were informed at
oral argument that 18 of the 29 drug kingpin convictions extant
were the result of guilty pleas. Those pleas may have
established unequivocal status as a drug kingpin. Relief from
such pleas would not be warranted. McQuaid, supra,
147 N.J. 464.
Consequently, even if the Alexander rule were thought to be a new
rule, it would be applied retroactively.
The Court's decision in Alexander does not constitute a new rule of law and should be applied retroactively to defendant's case. The erroneous jury instructions were sufficiently prejudicial to defendant to warrant a new trial on the kingpin count.
We affirm the judgment of the Appellate Division concerning the claims of ineffective assistance of counsel and use of perjurious testimony.
V
possession of controlled dangerous substances with an intent to
distribute. Defendant is subject to an extended sentence for
that offense. N.J.S.A. 2C:43-7(c); N.J.S.A. 2C:43-6(f). See
State v. Rodriguez,
97 N.J. 263 (1984) (discussing effect of
partial reversal on merged sentences).
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN, and COLEMAN join in JUSTICE O'HERN's opinion.
NO. A-146 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MOISES AFANADOR,
Defendant-Appellant.
DECIDED July 23, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY