State v. Burgess

• Decision Date: 18 February 1997
• Citation: 689 A.2d 730,298 N.J.Super. 254
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lloyd BURGESS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 254

298 N.J.Super. 254

689 A.2d 730

STATE of New Jersey, Plaintiff-Respondent, v. Lloyd BURGESS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 29, 1996.

Decided Feb. 18, 1997.

Susan L. Reisner, Public Defender, for appellant (Michael C. Kazer, Jersey City, Designated Counsel, on the brief).

Peter Verniero, Attorney General, for respondent (Nancy A. Hulett, Deputy Attorney General, of counsel and on the brief).

Before Judges PRESSLER, HUMPHREYS and WECKER.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

In State v. Alexander, 136 N.J. 563, 643 A.2d 996 (1994), the New Jersey Supreme Court mandated definitional jury instructions in a prosecution under N.J.S.A. 2C:35-3, the drug-kingpin statute, which became effective July 1987. The issue before us is whether the rule articulated by Alexander should be accorded retroactive effect in post-conviction relief proceedings that challenge a kingpin conviction which became final prior to Alexander. We conclude, under all the circumstances before us, that since those required instructions define elements of the kingpin offense, a kingpin conviction unsupported by a proper charge to the jury is vulnerable to attack on that ground by way of collateral review of a final judgment of conviction. We reach that conclusion irrespective of whether the usual standards for post-conviction relief alone apply or whether Alexander is deemed to constitute a "new rule," requiring a retroactivity analysis as well. Accordingly, we reverse the order appealed from denying the application of defendant Lloyd Burgess for post-conviction relief on Alexander grounds and remand for a new trial.

Chronology is critical to our reasoning. Defendant Lloyd Burgess was convicted under the drug-kingpin statute prior to the decision of this court in State v. Alexander, 264 N.J.Super. 102, 624 A.2d 48 (App.Div.1993), affirmed by the Supreme Court the following year, 136 N.J. 563, 643 A.2d 996 (1994), in which we held that specified explanations of "upper echelon member" and "organized drug trafficking network" were essential in order to guide the jury's determination that "defendant's status and activities warranted the punishment which the Legislature has reserved for a 'leader of a narcotics trafficking network.' " Alexander, supra, 264 N.J.Super. at 111, 624 A.2d 48. Defendant Burgess's unsuccessful direct appeal, in which the issue of inadequate instructions was not raised, was also decided before this court's opinion in Alexander. Defendant's petition for certification was denied prior to the Supreme Court's Alexander opinion. State v. Burgess, 134 N.J. 566, 636 A.2d 523 (1993). In December 1994, following the Supreme Court's Alexander decision the previous July, defendant filed a petition for post-conviction relief raising, among other issues, the contention that the trial court's failure to give an Alexander charge deprived him of his constitutional due process right to a fair trial. The petition was dismissed, and defendant appeals.

For purposes of these post-conviction proceedings, the facts require only brief reference. The State produced evidence at trial that defendant was involved in a cocaine-trafficking scheme with at least four other persons. Two were street dealers, one assisted in breaking down larger quantities of cocaine into sales units and at times made purchases of cocaine for defendant in New York, and the fourth was defendant's girlfriend, who assisted in supplying the street dealers. All four, apparently addicts, received at least part of their payment in cocaine. Based on the foregoing evidence, the jury convicted defendant under the kingpin statute of conspiracy to distribute cocaine, and of twenty-four drug- and possession crimes. The remaining convictions were all merged into eight distribution convictions, two second-degree and six third-degree. Sentences of seven years on each of the second-degree convictions and of four years on each of the third-degree convictions were imposed, all to run concurrently with the life term.

With respect to the kingpin charge, the judge instructed the jury in the language of N.J.S.A. 2C:35-3, following the then model jury charge ¹ and telling the jury that in order to convict under the statute, it had to find that defendant was "an organizer, supervisor, financier or manager" ² in a drug-trafficking conspiracy and occupied "a high level position in the conspiracy." It was precisely the charge that we held in Alexander to be inadequate to sustain a kingpin conviction. That is to say, although we were satisfied that the kingpin statute is not facially void for vagueness, we nevertheless concluded that its application was subject to impermissible overbreadth absent the qualifications and explanations set forth in N.J.S.A. 2C:35-1.1c which, we held, define the status and conduct intended by the Legislature to be subject to kingpin punishment. Accordingly, we prescribed specific and discrete definitions of "a leader of a narcotics trafficking network" to convey to the jury the necessity of defendant's status as an "upper echelon member" of an organized "drug trafficking network" and to give the jury a better sense of the proscribed activity. Alexander, supra, 264 N.J.Super. at 110-111, 624 A.2d 48.

Following this court's Alexander opinion and while certification proceedings were pending on the State's petition in that case, the Supreme Court addressed the kingpin statute for the first time since its 1987 enactment in State v. Afanador, 134 N.J. 162, 631 A.2d 946 (1993). The sole issue the Court considered was the statute's asserted unconstitutional vagueness, both facially and as applied to defendant. A majority of four concluded that N.J.S.A. 2C:35-3 withstood that challenge. The three dissenters, for whom Justice O'Hern spoke, took a different approach. Recognizing the overbreadth problem, they were of the view that "the statute was applied unconstitutionally because it was applied too vaguely to guide the jury's function," a defect which, they concluded, could be cured by the discrete and specific "upper echelon" and "drug trafficking network" explanations prescribed by us in Alexander. Afanador, supra, 134 N.J. at 185, 631 A.2d 946 (O'Hern, J., dissenting). In sum, the dissent was persuaded that the content of the jury charge is inescapably linked to the constitutionality of the statute since only a properly limiting charge, and more particularly, the charge we mandated in Alexander, could save the statute from unconstitutional overbreadth. The response of the Afanador majority was simply to assert that the question of the jury charge was not before it, that the statute stood independently of the Alexander charge, and that it was inappropriate for the dissent to rely on an Appellate Division opinion while certification proceedings were still pending. 134 N.J. at 179, 631 A.2d 946.

A year later, on July 19, 1994, the Supreme Court decided Alexander, the majority now substantially adopting the views both of the Appellate Division and of the Afanador dissenters. ³ That is to say, the Court, now conceding the inherent ambiguity of N.J.S.A. 2C:35-3, concluded that

[t]he prominence of the upper-level status of the defendant in the description and explanation of the purpose of the crime [as set forth in N.J.S.A. 2C:35-1.1c] clearly evidences the Legislature's intent that the status or the position of the defendant in the drug trafficking network is a substantive part of the crime.

[Alexander, supra, 136 N.J. at 570, 643 A.2d 996.]

Accordingly, it held that "the status or position of the defendant should be considered a material element of the crime," requiring, in accordance with the legislative intent articulated by N.J.S.A. 2C:35-1.1c, albeit not expressly reiterated in N.J.S.A. 2C:35-3, inclusion of the definitional element of "the role of the defendant as an 'upper-level member' of a drug operation." Alexander, supra, 136 N.J. at 570-571, 643 A.2d 996. Rejecting to some extent the specificity of the definition prescribed by us in Alexander, the Supreme Court instructed as follows with respect to the requisite charge to the jury:

Under the statute a drug-trafficking network need not have any specific configuration or chain of command. Such a network is not to be understood primarily or exclusively as a vertical, in contrast to a horizontal, organization. Rather, it is to be considered as an organization of persons who are collectively engaged in drug activities. A "high-level" or "upper-echelon" "leader" of such an organization is one who occupies a significant or important position in the organization and exercises substantial authority and control over its operations. Neither the specific elements enumerated in the provisions of N.J.S.A. 2C:35-3 nor the additional requirements extrapolated from the statute's statement of purpose indicate that a drug operator exercising authority and controlling other people in an organization or network, even at the street level, could not be a "leader" or "drug kingpin" within the contemplation of the Legislature. Rather, the role of a defendant as a leader or drug kingpin turns more on the nature of that person's authority, the magnitude or extent of control, and the number of persons over whom that power is exercised.

An appropriate instruction should also amplify the other statutory terms that are expressed as material elements of the crime under N.J.S.A. 2C:35-3. Thus, the statutory terms "organizer, supervisor, financier or manager" should be explained so that the meaning of those terms is more fully understood by the jury. For example, the court might define an "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...