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State v. Anderson

Decided: March 16, 1992.


On certification to the Superior Court, Appellate Division.

For reversal and remandment Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Chief Justice Wilentz, Dissents. Justice Handler, not participating. The opinion of the Court was delivered by Clifford, J. Wilentz, Chief Justice, Dissenting.


When called on to apply a long-established rule of law, courts sometimes become afflicted with a certain inertia. The resultant ennui can blind courts to the desirability of reassessing the rule's value and underlying rationale. This appeal is centered on just such a long-established and essentially unchallenged rule. The vast majority of jurisdictions, including New Jersey,

have faithfully held that the question of materiality in a prosecution for perjury is one to be decided by the Judge rather than the jury. See Annotation, Materiality of Testimony Forming Basis of Perjury Charge as Question for Court or Jury in State Trial, 37 A.L.R. 4th 948, 951 (1985 & Supp.1990). Many states, again including New Jersey, have codified that rule in their statutes or rules of court. See, e.g., N.J.S.A. 2C:28-1 (the perjury statute). What those many jurisdictions have not done, however, is scrutinize the reasoning behind the rule.

The few jurisdictions that have undertaken a fresh examination have concluded that the longstanding rule is fundamentally flawed, its foundation without footings. See United States v. Taylor, 693 F. Supp. 828 (N.D.Cal.1988), appeal dismissed, 881 F.2d 840 (9th Cir.1989); Commonwealth v. McDuffee, 379 Mass. 353, 398 N.E. 2d 463 (1979); People v. Clemente, 285 App.Div. 258, 136 N.Y.S. 2d 202 (1954), aff'd, 309 N.Y. 890, 131 N.E. 2d 294 (1955); see also People v. Hedgecock, 51 Cal. 3d 395, 272 Cal.Rptr. 803, 795 P. 2d 1260 (1990) (holding that materiality is an issue for the jury in perjury prosecution based on errors or omissions in disclosure statements required by the Political Reform Act). But see State v. Sands, 123 N.H. 570, 467 A.2d 202, 215-18 (1983) (concluding that materiality involves complex relationship between alleged false statements and underlying proceeding and is therefore question of law). Having reexamined the rule ourselves, we conclude that the provision in N.J.S.A. 2C:28-1b declaring materiality to be a question of law irreconcilably conflicts with the constitutional right of an accused to have a jury determine the existence beyond a reasonable doubt of each essential element of a crime before he or she is convicted. See State v. Ingenito, 87 N.J. 204, 217, 432 A.2d 912 (1981). Materiality is an element of the crime of perjury. As such, we presume that its proof beyond a reasonable doubt must be determined by the trier of fact. Ibid. Because we can discern no compelling reason to withdraw from the jury the determination of materiality, we hold that the provision in N.J.S.A. 2C:28-1b declaring that determination to

be a question of law violates the New Jersey Constitution. We also conclude that the failure to submit materiality to the jury cannot be considered harmless under the circumstances of this case, wherefore we vacate defendant's conviction for perjury and remand the cause to the Law Division.


This case arises from defendant's testimony during the November 1986 capital-murder trial of his cousin, Billy Gilbert Smith. Smith had been charged with the murder of Dupree Mosley, a bystander to a dispute between Smith and Horace Greene. On January 30, 1985, on the grounds of a New Brunswick housing project, Greene taunted Smith and chased him with a knife. According to the State, Smith then obtained a rifle, returned to the grounds, and, with Anderson by his side, fired a shot at Greene. The bullet missed Greene but struck and killed Mosley.

Based on information received at the crime scene that evening, the New Brunswick Police suspected Anderson of having committed the shooting. At police headquarters, where he had been taken for questioning, Anderson told the interrogating detective not only that he had not committed the shooting but that he did not know who had. Subsequently Smith confessed to the shooting. After that confession, Anderson gave to the authorities a sworn nine-minute statement indicating that Smith had indeed fired the fatal shot.

Smith was charged with capital murder and related weapons offenses. His trial in January 1986, during which Anderson testified as a prosecution witness, resulted in a hung jury. After that trial, Anderson's family members became alienated from him and criticized him for having testified against his cousin.

At Smith's second trial in November 1986 the prosecution again produced Anderson as a State's witness. Anderson's testimony, however, diverged from his previous statements.

Contrary to his earlier version, Anderson testified that he, and not Smith, had fired the rifle but that he had not hit anyone. Confronted with that about-face, the prosecutor directed Anderson's attention to his sworn statement given shortly after the occurrence. Anderson denied having made that statement, maintaining instead that the police had fabricated it.

That evening at the correctional facility where Anderson was incarcerated for a parole violation, he had second thoughts about his testimony. He told a corrections officer that he had testified falsely at Smith's trial because of pressure exerted on him by his family, and said that he wanted to change his testimony. The next morning Anderson repeated to an investigator that he had lied in court because of family pressure and because he was angry at the prosecutor but now wanted to tell the truth, to wit, that his cousin had fired the rifle. That information was conveyed to the prosecutor by a note during closing arguments. Following the summations but before the jury charge, the prosecutor brought the note to the attention of the court but so far as the record discloses sought no remedial action. The jury, unaware of Anderson's desire to recant his testimony, returned a verdict of "not guilty" on the capital-murder indictment of Smith. The facts thus depict a truly material perjury: there is a strong possibility that the jury acquitted a capital-murder defendant because of Anderson's false testimony.

The State charged Anderson with two counts of perjury during the second Smith trial. Count One of the indictment was based on his testimony claiming that he had fired the rifle shot. Count Two referred to his testimony denying that he had made a statement to the police about the shooting. After pleading not guilty, Anderson went to trial before a Judge and a jury.

At the Conclusion of the State's case, the court ruled that both of the alleged falsifications had been material. Thereafter, prior to summations, it also ruled that defense counsel

would not be allowed to argue to the jury the issue of the materiality of the falsification alleged in Count Two of the indictment, defendant having conceded the materiality of the statement at issue in Count One. Defense counsel moved for a ruling that the perjury statute was unconstitutional because it violated defendant's right to have the jury decide all questions of fact. Guided by Rule 3:10-3, which addresses defenses and objections that can be raised only before or after trial, the court declined to rule on defendant's motion at that time.

In its instruction to the jury regarding the elements of perjury, the court made no mention of materiality, nor did it tell the jury that it had determined that the alleged falsifications were material as a matter of law. Rather, the court charged the jury, among other things, that the prosecution had to prove only three elements: first, that defendant had made the statement in an official proceeding; second, that the statement had been made under oath or affirmation; and third, that the statement was false and defendant knew it was false when made. The jury acquitted Anderson on Count One (I shot the rifle) and convicted him on Count Two (I did not give a statement to the police).

Prior to sentencing, defendant moved for a new trial, reasserting his claim that the perjury statute is unconstitutional. In denying that motion the court reasoned that because the Legislature could constitutionally pass a statute that made perjury a crime without including materiality as an element of that crime, it certainly could make materiality a matter to be decided by the court if the Legislature did decide to define perjury to include a showing of materiality. Hence, the court concluded that the delegation of that factual determination to a Judge rather than a jury did not make the statute unconstitutional. The court then sentenced defendant to imprisonment for five years with two and one-half years of parole ineligibility to run consecutively to the term he was already serving for a parole violation.

Defendant appealed, raising over a dozen claims for relief. The Appellate Division found that the only claim meriting consideration was defendant's argument that by deeming materiality a question of law and therefore a question to be decided by the court, the perjury statute violates an accused's right to trial by jury. In affirming defendant's conviction in an unreported opinion, the Appellate Division expressed the view that withholding the question of materiality from consideration by the jury is unconstitutional, and agreed with the misgivings set forth in Judge Baime's Concurring opinion in State v. Whalen, 235 N.J. Super. 506, 514-17, 563 A.2d 457 (App.Div.1989). Nevertheless, it felt constrained to uphold the validity of the statute:

[A]lthough we have serious doubts about the Conclusions reached by the majority in [ Whalen ] and, in fact are entirely sympathetic with Judge Baime's Concurring opinion that the perjury statute "is repugnant to the right to a jury trial," we share his view that we are "powerless to act upon that position in light of settled case law." [ Id. at 517, 563 A.2d 457.]

We granted defendant's petition for certification, 122 N.J. 411, 585 A.2d 407 (1990), limited to the issue of the constitutionality of the perjury statute.


The statute at issue here defines the offense of perjury as follows:

A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. [ N.J.S.A. 2C:28-1a.]

Proof of perjury, then, requires four independent showings: (1) making a false statement (2) material to the proceeding (3) under oath in an official proceeding (4) knowing the statement to be untrue. See II Final Report of the N.J. Criminal Law Revision Comm'n 272 (1971) (reprinted in J. Cannel, N.J. Criminal Code Annotated 2C:28-1 comment 2 (1991)). At oral argument the amicus, Attorney General, acknowledged that materiality is an essential element of the crime of perjury,

despite his earlier contrary position. See ibid. ("A required element of perjury under existing law is that of 'materiality.'"); accord State v. Ellenstein, 121 N.J.L. 304, 324, 2 A.2d 454 (E. & A.1938); State v. Scott, 12 N.J.Misc. 278, 171 A. 311 (Sup.Ct.1934) (addressing materiality as an element of subornation of perjury). The statute addresses several aspects of materiality specifically:

Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding or the Disposition of the matter. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material is a question of law. [ N.J.S.A. 2C:28-1b.]

This appeal focuses on that last sentence and its necessary implication that materiality is to be determined by the court and not the jury.

Defendant bases his challenge on the New Jersey Constitution, which states: "The right of trial by jury shall remain inviolate," N.J. Const. art. I, para. 9, and "[i]n all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury." Id. para. 10. In State v. Ingenito, supra, 87 N.J. 204, 432 A.2d 912, we explained the scope and recited the history of the right to trial by jury, tracing its underpinnings back to the Magna Carta and beyond. Id. at 210, 432 A.2d 912. We stated that "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." Id. at 217, 432 A.2d 912. In Ingenito we held that the application of collateral estoppel to a defendant in a criminal case constituted an invasion of the factfinding function of the jury.

If an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury's capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably compromised. It follows in such circumstances that the defendant's jury right will have been, commensurately, abridged. [ Id. at 213, 432 A.2d 912.]

We have characterized the jury's responsibility to decide the facts as "nondelegable and nonremovable." Id. at 211,

432 A.2d 912. Hence, an accused is constitutionally entitled to have a jury find each factual element beyond a reasonable doubt before he or she is convicted. See State v. Ragland, 105 N.J. 189, 194, 519 A.2d 1361 (1986); Ingenito, supra, 87 N.J. at 217, 432 A.2d 912; State v. Sinclair, 49 N.J. 525, 542-43, 231 A.2d 565 (1967); State v. Rudd, 49 N.J. 310, 314, 230 A.2d 129 (1967); State v. Schneiderman, 20 N.J. 422, 426, 120 A.2d 89 (1956). Furthermore, a court may never instruct a jury to find against a criminal defendant on any factual issue that is an element of the crime charged. See Bollenbach v. United States, 326 U.S. 607, 66 S. Ct. 402, 90 L. Ed. 350 (1946); State v. Humphreys, 54 N.J. 406, 414-16, 255 A.2d 273 (1969); State v. Corby, 28 N.J. 106, 115, 145 A.2d 289 (1958). Thus, in Humphreys this Court invalidated a statutory provision creating a presumption of possession of a firearm by all persons occupying a vehicle in which the weapon is present. The Court noted that the provision could be attacked as "an unfair limitation on the defendant's right to a jury trial. The 'deliberative function of the jury is improperly circumscribed * * * by [its] being told that the presumption springs into existence as a matter of law * * *.'" 54 N.J. at 416, 255 A.2d 273 (quoting Corby, supra, 28 N.J. at 115, 145 A.2d 289).

Intertwined with the right to a jury trial is the federal constitutional right to due process of law. See Ingenito, supra, 87 N.J. at 214-15 & n. 3, 432 A.2d 912. See United States Constitution amendment XIV, section 1; New Jersey Constitution article I, paragraph 1. The United States Supreme Court has held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970); accord Cage v. Louisiana, 498 U.S. , , 111 S. Ct. 328, 329, 112 L. Ed. 2d 339, 341 (1990) (quoting Winship); Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 2420, 105 L. Ed. 2d 218, 221 (1989) ("The Due Process Clause of the Fourteenth Amendment denies

States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense."). Similarly, this Court has held that due process requires that an accused receive a trial "in which the jury must find that the State has proved each and every material element of the crime beyond a reasonable doubt." State v. Ragland, supra, 105 N.J. at 193-94, 519 A.2d 1361 (citing State v. Grunow, 102 N.J. 133, 145 n. 5, 506 A.2d 708 (1986); State v. Toscano, 74 N.J. 421, 442-43, 378 A.2d 755 (1977)). Both the tenets of due process and the right to a jury trial mandate that here materiality, as an element of the offense of perjury, must be found beyond a reasonable doubt by the jury.

The State points out that the right to a jury under our constitution has been interpreted as no more than co-extensive with the scope of that right under the Sixth Amendment of the United States Constitution. See State v. Whalen, supra, 235 N.J. Super. at 517, 563 A.2d 457 (Baime, J.A.D., Concurring) (finding nothing in New Jersey law to justify more expansive rights to a trial by jury under state law). It then argues that because the Supreme Court has recently reiterated that the "'materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court,'" Kungys v. United States, 485 U.S. 759, 772, 108 S. Ct. 1537, 1547, 99 L. Ed. 2d 839, 854 (1988) (quoting Sinclair v. United States, 279 U.S. 263, 298, 49 S. Ct. 268, 273, 73 L. Ed. 692, 700 (1929)), there is no basis for us to hold otherwise.

Although we are well aware of the precedential effect of Supreme Court pronouncements on issues of federal law, see Battaglia v. Union County Welfare Board, 88 N.J. 48, 60, 438 A.2d 530 (1981), cert. denied, 456 U.S. 965, 102 S. Ct. 2045, 72 L. Ed. 2d 490 (1982); State v. Coleman, 46 N.J. 16, 34, 214 A.2d 393 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966), we hesitate to place conclusive weight behind the Court's ...

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