State v. Purnell

O’HERN, J.,

dissenting.

Braynard Purnell is serving a life sentence with a thirty year parole disqualifier in State Prison for murder. He will also serve a consecutive five-year sentence for perjury if his conviction thereof is sustained. The perjury sentence will be served concurrently with a five-year sentence for hindering apprehension, two years of which are parole ineligible, also consecutive to the murder sentence. The Court’s decision will probably not mean a great loss of street time for defendant but there is a matter of principle involved.

The facts of the murder are set forth in our reported decision at 126 N.J. 518 , 601 A.2d 175 (1992). Briefly stated, the murder *65 involved an argument over drugs between Purnell and a drug dealer in Purnell’s back yard. In the course of the investigation, Purnell appeared before a Grand Jury and testified that he had returned to his house and entered through the front door. His daughter testified that he had come back into the house through a rear window. The Grand Jury indicted Purnell for the murder of the drug dealer, possession of a weapon with intent to use it unlawfully, hindering apprehension, and perjury. This was a capital case and defending against the perjury count could not have been a very high priority for defense counsel. Although they moved at trial to dismiss the perjury count on the ground that materiality had not been proven, Purnell’s attorneys never requested that the issue of materiality be decided by the jury. Purnell’s trial took place in January and February 1990.

In 1992, this Court decided State v. Anderson, 127 N.J. 191 , 603 A.2d 928 , which held that the materiality of an allegedly perjurious statement is to be decided by a jury, not by a judge. Among the several issues raised in Purnell’s post-conviction relief proceeding was that he had been entitled to trial by jury on the materiality of the difference between Purnell’s entry by the front door versus by the rear window.

Post-conviction relief (PCR) is the New Jersey analogue to the federal writ of habeas corpus. It is a safeguard to ensure that defendant was not unjustly convicted. Ordinarily, PCR enables a defendant to challenge a final judgment of conviction by presenting contentions that could not have been raised on direct appeal. State v. McQuaid, 147 N.J. 464, 482 , 688 A.2d 584 (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; (e) an unlawful sentence; and (d) any habeas corpus, common-law, or statutory grounds for a collateral attack.” State v. Preciose, 129 N.J. 451, 459 , 609 A.2d 1280 (1992) (internal quotations omitted). The Court does not rely on any of the procedural bars set forth in Rule 3:22 but relies on the fact *66 that the principle of Anderson should not provide retroactive relief. I disagree.

The Anderson doctrine was based on the New Jersey State Constitution, not the federal Constitution. Although federal constitutional retroactivity doctrine sets the constitutional threshold, it does not set the ceiling for retroactivity.

Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), established a restrictive federal approach to retroactivity in order to effect a “proper allocation of responsibility between the state and federal courts in the area of constitutional criminal procedure” and to eliminate the “perceived encroachment of federal habeas on state courts.” Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L.Rev. 421, 449 (1993) (footnote omitted). The Teague plurality

thought that its approach would comport ... with the central purpose of federal habeas corpus____ [H]abeas is not simply another layer of review for constitutional eiTor, but an extraordinary remedy with a far more limited function of supplying “a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards.”

[Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-retroactivity, and Constitutional Remedies, 104 Harv. L.Rev. 1731, 1747 (1991) (quoting Teague, supra, 489 U.S. at 306 , 109 S.Ct. at 1073 , 103 L.Ed.2d at 353 ).]

New Jersey’s retroactivity analysis, although generally consistent with that of the United States Supreme Court, is considerably less restrictive. State v. Cupe, 289 N.J.Super. 1, 12 , 672 A.2d 1233 (App.Div.) certif. denied, 144 N.J. 589 , 677 A.2d 761 (1996) (noting federal courts’ reluctance to apply law retroactively on collateral attack rather than direct review). We recently reviewed our principles of retroactivity analysis:

In deciding whether to give a decision retroactive effect, there are several options available to the Court, ranging from complete retroactivity to complete prospectivity. See Cupe, supra, 289 N.J.Super. at 12 , 672 A.2d 1233 (enumerating the four options). However, before the Court chooses from among the varied options, it customarily engages in the threshold inquiry of whether the rule at issue is a “new rule of law” for purposes of retroactivity analysis. Id. at 11 , 672 A.2d 1233 . Our cases have recognized that if a ruling does not involve a “departure from existing *67 law,” the retroactivity question never arises and our power to limit the retroactive effect of a decision is not implicated. State v. Burstein, 85 N.J. 394, 403 , 427 A.2d 525 (1981).... [State v.] Knight [ 145 N.J. 233, 251 , 678 A.2d 642 (1996) ] continued to explain:

if a decision indeed sets forth a “new rule,” three factors generally are considered to determine whether the rule is to be applied retroactively: “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.” State v. Nash, 64 N.J. 464, 471 , 317 A.2d 689 (1974)____ Although those three factors have received detailed attention in our retroactivity case law, our cases also indicate that the retroactivity determination often turns more generally on “the court’s view of what is just and consonant with public policy in the particular situation presented.” [ Nash, supra, 64 N.J.] at 469, 317 A.2d 689 , ... [T]he purpose of the new rule[ ] is often the pivotal consideration. Burstein, supra, 85 N.J. at 406 , 427 A.2d 525 . For example, if the newly announced rule is an exclusionary rule intended solely to discourage police misconduct, then the rule’s purpose would not be served by applying the rule to conduct occurring before the rule was announced. For that reason, exclusionary rules are rarely given retroactive effect. Ibid.

[State v. Afanador, 151 N.J. 41, 57-58 , 697 A.2d 529 (1997).]

The purpose of the Anderson ruling is to implicate the fundamental right of trial by jury through the proper allocation of the functions of judge and jury. Retroactive application of the rule surely fosters that purpose. Nothing could be more intrinsic to fostering the “reliability of the truth-finding process,” Afanador, supra, 151 N.J. at 58 , 697 A.2d 529 , than the proper allocation of these functions. This is particularly true in light of the unique role of the jury in criminal prosecutions, which itself led to the Anderson rule. In criminal jurisprudence there is a qualitative distinction between judge and the jury, particularly on the issue of deciding an element of a crime. The determination of guilt is highly nuanced, and it is impossible to say in respect of any criminal conviction that the separate determination of an element by a judge will be given the same probative worth or weight in the ultimate verdict of guilt as would have been given by the jury itself. The determination of criminal guilt is indissoluable and cannot be assessed as simply the amalgam of its underlying elements. As the Court explained:

*68 The responsibility of the jury in the domain of factual findings, and ultimate guilt or innocence, is so pronounced and preeminent that we accept inconsistent verdicts that accrue to the benefit of a defendant. Indeed, a jury has the prerogative of returning a verdict of innocence in the face of overwhelming evidence of guilt. It may also refuse to return a verdict in spite of the adequacy of the evidence. This is indicative of a belief that the jury in a criminal prosecution selves as the conscience of the community and the embodiment of the common sense and feelings reflective of society as a whole.

[State v. Ingenito, 87 N.J. 204, 211-12 , 432 A.2d 912 (1981) (citations omitted). Accord, State v. Simon, 79 N.J. 191 , 398 A.2d 861 (1979) (rejecting use of interrogatories submitted to jury before beginning deliberations to prevent effect of subliminally suggesting defendant’s guilt).]

The jury deliberations process is not an exercise in logic or pure science, and removing or subtracting one segment from the deliberative process does not simply leave a numerical remainder — it plausibly affects the overall calculus of innocence or guilt. For example, in Ingénito, the Court held that the use of defendant’s prior conviction for unlicensed transfer of a weapon as the sole basis for establishing the element of possession in a separate trial for possession of a firearm by a convicted felon impinged on defendant’s constitutional right to a fair jury trial. The Court reasoned:

If an essential element of a ease is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably compromised. It follows in such circumstances that the defendant’s jury right will have been, commensurately, abridged.

[ Id. at 213, 432 A.2d 912 .]

Similarly, in State v. Collier, 90 N.J. 117 , 447 A.2d 168 (1982), this Court reversed a decision to direct a verdict of guilty on a charge of contributing to the delinquency of a minor (by engaging in intercourse) in the trial of a charge for rape. Although both defendant and the victim conceded that they had engaged in intercourse, the Court was concerned with “improperly impinging] on the sensitive area of jury deliberation[s].” Id. at 123 , 447 A.2d 168 . The Court explained:

The testimony differed sharply and apparently left the jury in doubt about the guilt of the defendant. The import of the directed verdict on the contributing charge was that the trial court told the jury that, no matter whom they believed, the defendant’s conduct was criminal. In a case where so much turned on credibility, *69 the likelihood that the jury was improperly influenced by such a suggestion cannot be gainsaid.

Furthermore, if the jury had considered both charges, it is possible that it might have decided to return a verdict of guilty on the contributing charge instead of a verdict of guilty on the rape charge. By directing a guilty verdict on the contributing charge, however, the court limited the jury’s role to a consideration of the rape charge____ In effect, the partial directed verdict on the contributing charge impaired the jury’s ability to assess objectively the defendant’s guilt on the rape charge.

Ubid.]

These cases demonstrate that removing the determination of even the most seemingly uncontroverted element of a crime from the province of the jury strikes at the heart of the truth-finding process. Accordingly, the first Nash factor strongly suggests complete retroactive effect.

The next question is whether the second factor, past reliance, should outweigh the first factor. The Anderson rule appears to have been the result as much of indifference as of reliance. As Justice Sealia pointed out in United States v. Gaudin, the most that could be determined was that “there had developed a division of authority on the point, as the treatise writers of the period amply demonstrate.” 515 U.S. 506, 518 , 115 S.Ct. 2310, 2317 , 132 L.Ed.2d 444, 455 (1995). Besides, the proposition itself was contrary to the uniform general understanding that a fair trial requires conviction by a jury of all the elements of a crime. In Ingénito, supra, we said, “the right to a jury in a criminal trial ordinarily includes the right to have the same trier of the fact decide all of the elements of the charged offense.” 87 N.J. at 217 , 432 A.2d 912 . “We have characterized the jury’s responsibility to decide the facts as ‘nondelegable and nonremovable.’ ” Anderson, supra, 127 N.J. at 199 , 603 A.2d 928 (quoting Ingénito, supra, 87 N.J. at 211 , 432 A.2d 912 ). In retrospect, as Justice Clifford pointed out in Anderson :

the rule that characterized materiality in perjury cases as a question of law became well established as later opinions cited the early cases, apparently with little or no independent analysis____ Thus, the allocation to the court of the determination of materiality became firmly entrenched in the law without having been subjected to detailed scrutiny or having been harmonized with the requirements of due process and the right to a jury trial.

*70 [ Anderson, supra, 127 N.J. at 204 , 603 A.2d 928 .]

The majority invokes the familiar parade of horribles, suggesting that a torrent of post-conviction relief applications will be presented to challenge perjury convictions. Ante at 56-57, 735 A.2d at 519-20. A survey of New Jersey’s reported eases since the date of the Anderson decision in 1992 discloses no other reported case in which the issue has ever been raised on post-conviction relief. Any application made more than five years after the 1992 Anderson decision will have to surmount the five-year bar of Rule 3:22-12. See Afanador, supra, 151 N.J. at 52 , 697 A.2d 529 (explaining exceptional circumstances necessary for court to relax that bar).

Even if we were to apply federal constitutional doctrine, it strikes me as somewhat anomalous to suggest to a defendant that the structural integrity of a trial is not altered when the functions of judge and jury are incorrectly allocated. “History establishes that New Jersey colonists placed a high premium on the right to trial by jury.” State v. One 1990 Honda Accord, 154 N.J. 373, 383 , 712 A.2d 1148 (1998). We diminish respect for that right when we minimize its importance.

Justice Scalia recently reminded us that

depriving a criminal defendant of the right to have the jury determine his guilt of the crime charged — which necessarily means his commission of every element of the crime charged — can never be harmless.

The very premise of structural-error review is that even convictions reflecting the “right” result are reversed for the sake of protecting a basic right.

Harmless-error review applies only when the jury actually renders a verdict — that is, when it has found the defendant guilty of all the elements of the crime.

Formal requirements are often scorned when they stand in the way of expediency. This Court, however, has an obligation to take a longer view.

*71 [Neder v. United States, — U.S. — ,— - —, 119 S.Ct. 1827, 1844-48 , 144 L.Ed.2d 35 ,— - — (1999) (Scalia, J., dissenting).]

I therefore dissent.

Justices HANDLER and POLLOCK join in this dissent.

For reversal — Chief Justice PORITZ and Justices GARIBALDI, STEIN and COLEMAN — 4.

For affirmance — Justices HANDLER, POLLOCK and O’HERN — 3.