The opinion of the court was delivered by: Coleman, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 310 N.J. Super. 407 (1998).
On March 16, 1992, this Court changed existing statutory and decisional law by holding that in a prosecution for perjury the jury, rather than the Judge, must decide the materiality element of the offense. State v. Anderson, 127 N.J. 191 (1992). The critical issue raised in this post-conviction relief (PCR) appeal is whether Anderson should operate retrospectively upon cases finally decided on direct review prior to the date on which Anderson was decided. The trial court rejected defendant's PCR application, ruling that Anderson should not be applied retroactively to permit a collateral attack upon a judgment of conviction. The Appellate Division in a published opinion reversed. 310 N.J. Super. 407, 422-23 (1998). We granted the State's petition for certification, 156 N.J. 385 (1998), and now reverse.
In a jury trial defendant was found guilty of capital murder, hindering his own apprehension by intimidating a witness into giving a false report, possession of a weapon for an unlawful purpose, and perjury. Defendant was originally sentenced to death on the capital- murder conviction and a five-year consecutive term on the perjury conviction. He received additional sentences for the other non-capital counts. In his direct appeal to this Court, defendant did not challenge his perjury conviction. After vacating the death sentence, the Court affirmed all of the convictions on January 15, 1992. State v. Purnell, 126 N.J. 518, 547. On March 16, 1992, two months after defendant's direct appeal in the State's courts was completed, the Court decided Anderson.
Anderson held that the determination of the element of materiality in the crime of perjury must be submitted to the jury in order to satisfy an accused's constitutional right to have a jury determine beyond a reasonable doubt the existence of each essential element of the crime.
Three years after defendant's direct appeals had been concluded, defendant filed a petition for PCR on a number of grounds, including that his perjury conviction should be vacated because it was obtained in violation of his Sixth and Fourteenth Amendment rights under the United States Constitution, as well as his state constitutional right to have a jury find each of the elements of the crime of perjury beyond a reasonable doubt. The facts relied on by both courts below are the same as those reported in our decision from defendant's direct appeal. Purnell, supra, 126 N.J. at 525-29. The pertinent facts are as follows.
On August 26, 1988, defendant fatally stabbed a drug dealer following a dispute over the price of cocaine. Defendant then hid the victim in some undergrowth in his backyard. On the night of the murder, defendant's daughter initially called the police and reported that "[s]omebody is trying to break in my house and now two guys are jumping my dad." Id. at 526. The police responded immediately, spoke to defendant's daughter, and performed a cursory search of the backyard. The officers did not encounter defendant or discover the dead body at that time.
During the ensuing police investigation, defendant reported different versions of the events on the night of the murder. He initially informed the police that he saw two men fighting in his backyard, but when he hollered to his daughter to "call the police," the two men ran off. Id. at 528. After he was arrested and advised of his rights, however, defendant admitted to the police that he had been involved in the fight between the two men.
Defendant voluntarily appeared before the Grand Jury and described the incident with the two men in his backyard. He told the Grand Jury that at first he had not told the police about his involvement in the fight because "there's a body involved in this," and he was afraid that he might incriminate himself. Id. at 529. Defendant also informed the Grand Jury that after trying to chase away the two men in his backyard, he entered his home through the front door.
Defendant's daughter also testified before the Grand Jury and gave testimony that contradicted defendant's Grand Jury testimony. The daughter testified that rather than entering the house through the front door on the night in question, defendant knocked on the bedroom window of the house and she let him in through the bedroom window. At trial, the daughter attempted to corroborate defendant's version of the events by testifying that defendant entered the house through the front door. However, the State impeached the daughter's trial testimony with her Grand Jury testimony, forcing her to admit that her father asked her to be let in through the bedroom window of the house on the night in question.
Based on defendant's testimony before the Grand Jury, he was indicted for perjury. The perjury count charged:
"[O]n December 14, 1988, Braynard Purnell testified before the Camden County Grand Jury that on the night of August 26, 1988[,] he had returned to his house after chasing someone behind his house and entered through the front door; whereas, in fact he had waited, after killing Lawrence Talley, for the police who had been summoned to the area by [defendant's daughter], to leave the scene; he then proceeded to tap on the kitchen window and instruct [his daughter] to permit him to climb back into the house through the bedroom window."
During the trial, defense counsel moved to dismiss the perjury count on the ground that defendant's statement that he returned to his home and entered the front door after chasing someone was not material. However, as prescribed by statute at that time, N.J.S.A. 2C:28-1b, the trial court determined as a matter of law that defendant's testimony before the Grand Jury concerning how he reentered the house on the night of the crime was material. The court reasoned:
Is it material? Well, if you're attempting to keep your presence outside the house or even at the house that night unknown to those who are investigating . . . a disturbance outside, then it does become very material. Because if the Grand Jury believes that he wasn't there at all, they may not have indicted him. . . . And I think it thus becomes material.
Because the trial court determined the element of materiality as a matter of law, the jury was not informed that materiality was an element of the crime of perjury. The trial court permitted the jury to decide the three remaining elements of the perjury offense: whether (1) the statement was made in an official proceeding; (2) the testimony was given under oath; and (3) the statement given or made was actually false. Defendant did not object to the trial court's failure to submit the element of materiality to the jury.
At the PCR hearing, the trial court determined that the Court's decision in Anderson should not be applied retroactively to permit defendant's collateral attack on his perjury conviction. The trial court stated:
"[W]hile [Anderson] would apply to cases that were either pending or had been tried but on appeal, this case . . . had been to the Supreme Court . . . , and thus, for intents and purposes of the retroactivity application the case was concluded . . . . [T]his court will not retroactively apply Anderson to the perjury  conviction in this case."
On defendant's PCR appeal, the Appellate Division applied the Anderson holding to defendant's collateral attack and reversed his perjury conviction. Purnell, supra, 310 N.J. Super. at 422-23. The Appellate Division analyzed the retroactivity issue under both state and federal law and concluded that Anderson should be applied retroactively to collateral attacks made in a PCR application. Id. at 419.
The State argues that the United States Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), supersedes our decision in Anderson as the relevant authority on the issue of submitting the element of materiality to the jury in a perjury offense, and thus, federal retroactivity jurisprudence should control our analysis. Although recognizing that both Gaudin and Anderson promulgated a "new" rule of law regarding the element of materiality in a perjury case, the State contends that the federal criteria for determining retroactivity on collateral review indicate that Gaudin should not apply retroactively to defendant's PCR application. The State further argues that even assuming that New Jersey's retroactivity jurisprudence is applicable, the Anderson holding should not apply retroactively to defendant's PCR application.
The State also contends that the failure to have the jury determine the element of materiality in defendant's perjury case was not plain error. The State concludes that any reasonable juror would have found defendant's Grand Jury testimony regarding how he entered the house after the homicide to be material, just as the trial court determined as a matter of law.
Defendant argues that the entire retroactivity issue should be avoided because neither Anderson nor Gaudin represents a new rule of law. He asserts that the state and federal constitutions have always required a jury to decide each element of a criminal offense. Defendant maintains that in the event that a retroactivity analysis is required, we should apply New Jersey's jurisprudence because Anderson was decided first. Finally, defendant argues that even under a dual analysis, he is entitled to complete retroactivity because both Anderson and Gaudin implicate fundamental constitutional rights.
A person commits the crime of perjury if he or she during the course of "any official proceeding . . . 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 [or she] does not believe it to be true." N.J.S.A. 2C:28-1(a). To prove such a charge, the State must establish four elements: (1) that the defendant made a false statement; (2) that the statement was material to the proceeding; (3) that the statement ...