On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Before Judges Dreier, P.g. Levy and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
Submitted January 27, 1998
Braynard Purnell was convicted of capital murder in the death of Lawrence Talley. N.J.S.A. 2C:11-3a(1) and/or (2). His death sentence was reversed by the Supreme Court on direct appeal, but his convictions were otherwise affirmed. State v. Purnell, 126 N.J. 518 (1992). When the Camden County Prosecutor declined to retry the capital murder charge, defendant was sentenced to life in prison with a thirty year period of parole ineligibility for that crime. The jury also convicted Purnell of hindering apprehension, N.J.S.A. 2C:29-3b(2) *fn1 ; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and perjury, N.J.S.A. 2C:28-1a. The unlawful purpose offense was merged with the murder conviction for sentencing. Defendant received a consecutive five year sentence with two years of parole ineligibility on the hindering charge and a flat five years on the perjury charge, concurrent to the hindering charge but consecutive to the life sentence.
Defendant now appeals from the denial of his motion for post- conviction relief, R. 3:22-1, making the following arguments:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIM THAT HE WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF HIS ATTORNEY'S FAILURE TO MOVE TO SUPPRESS HIS STATEMENT OF AUGUST 29, 1988, EVEN THOUGH IT WAS CLEAR THAT HE HAD BEEN ARRESTED WITHOUT PROBABLE CAUSE IN VIOLATION OF THE FOURTH AMENDMENT, AND THEN QUESTIONED WITHOUT FIRST HAVING BEEN GIVEN, OR WAIVED, HIS FIFTH AMENDMENT RIGHTS.
II. THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIM THAT HE WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF HIS ATTORNEY'S FAILURE TO ARGUE THAT HIS STATEMENT OF SEPTEMBER 1, 1988 SHOULD BE SUPPRESSED ON THE GROUND THAT DEFENDANT HAD ASKED TO STOP THE QUESTIONING, AND THAT THE POLICE HAD REINITIATED THE INTERROGATION WITHOUT WAITING A SIGNIFICANT PERIOD OF TIME.
III. PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO APPEAR ON THREE SEPARATE OCCASIONS DURING JURY SELECTION, BUT INSTEAD SENT PARTNERS OR ASSOCIATES WHO WERE NOT FAMILIAR WITH THE FACTS OF THE CASE.
IV. PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL, BECAUSE HIS TRIAL ATTORNEY FAILED TO FULLY EXPLAIN THE NATURE OF THE EXISTENCE OF A CONFLICT OF INTEREST WHICH WAS DUE TO HIS LAW FIRM'S PREVIOUS REPRESENTATION OF A CRUCIAL STATE'S WITNESS IN A DRUG CASE AND BECAUSE COUNSEL FAILED TO SECURE A KNOWING WAIVER FROM HIM.
V. THE CONVICTION UNDER COUNT FIVE FOR PERJURY WAS OBTAINED IN VIOLATION OF DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO HAVE THE JURY FIND EACH ELEMENT OF THE CRIME, IN THAT THE TRIAL COURT, NOT THE JURY, DETERMINED THAT THE ALLEGEDLY PERJURED STATEMENT WAS MATERIAL.
The motion Judge ruled that all of the ineffective assistance arguments were or could have been raised on direct appeal, and were therefore procedurally barred. R. 3:22-4. Defendant contends that even if the arguments were raised on appeal, they depend upon facts outside the record, and therefore could not have been fully addressed on direct appeal. Defendant claims he is entitled to raise those facts on a post- conviction relief application pursuant to the exception provided by R. 3:22-4(a). The motion Judge also concluded that State v. Anderson, 127 N.J. 191 (1992), holding that the New Jersey Constitution mandates that the jury and not the Judge find the requisite element of materiality to establish perjury, was a new rule of law and should not be applied retroactively to defendant's perjury conviction.
Based upon our careful review of the record, the briefs submitted, and the applicable law, we are satisfied that the arguments raised by defendant's Points I through IV are without merit and do not warrant extended Discussion. R. 2:11-3(e)(2). We therefore affirm defendant's convictions for murder, hindering apprehension, and possession of a weapon for an unlawful purpose. However, we are convinced that State v. Anderson should be applied retroactively to defendant's conviction of perjury. We therefore reverse solely as to that conviction.
Evidence at trial supported the jury's finding that defendant murdered Lawrence Talley on the evening of Friday, August 26, 1988. Defendant stabbed Talley, who was a known drug dealer, during the course of an attempted drug transaction. Defendant then hid the body in his own backyard, where it was found two days later after a search triggered by the victim's family. The jury apparently did not believe defendant's testimony that on the night in question, he saw two men fighting with the victim in his backyard; that he went outside and fought with them; and that he tried to chase them but they ran away.
On this appeal, defendant argues that his perjury conviction should be vacated pursuant to State v. Anderson. The statement in question was defendant's testimony before the grand jury that after chasing the men from his backyard, he went back into his house through the front door, when in fact, according to his daughter's testimony before the grand jury, he waited until the police left, tapped on the kitchen window, and instructed his daughter to permit him to climb back into the house through a bedroom window.
At trial, defendant's attorney moved to dismiss the perjury count on the ground that the allegedly perjured statement was not material. The trial Judge determined as a matter of law that the perjured testimony was material, and did not charge the jury with respect to materiality. With respect to the elements of perjury, the Judge charged as follows:
f the State has proven each of the elements which I have given to you, that is, that it was -- that the statement was made in an official proceeding, that the testimony given before that official proceeding was given under oath and that the statement given was knowingly false, if the State proves each and every one of those allegations beyond a reasonable doubt, you must find the defendant guilty.
Defendant did not object to the charge. On direct appeal, defendant did not argue that the jury and not the court should have determined the materiality of the false statement.
Two months after the Supreme Court decided defendant's direct appeal, the Court decided State v. Anderson, supra, holding that materiality is an element of perjury and therefore must be decided by the jury. Relying on this decision, defendant contended in his petition for post-conviction relief that Anderson should be applied retroactively, and that his perjury conviction must therefore be vacated.
We recently addressed the issue of retroactive application in the context of a collateral attack. State v. Burgess, 298 N.J. Super. 254 (App. Div. 1997). There we held that the Supreme Court's decision in State v. Alexander, 136 N.J. 563 (1994), requiring specific jury instructions on a drug kingpin charge, N.J.S.A. 2C:35-3, in order to comply with state constitutional guarantees must be applied retroactively in post-conviction relief proceedings. Retroactive application in Burgess was mandated irrespective of the defendant's failure to challenge the jury instructions on constitutional grounds on direct appeal. Burgess is now pending before the Supreme Court. However, the Court's ...