State v. Purnell

• Decision Date: 20 March 1998
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Braynard PURNELL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 407

310 N.J.Super. 407

708 A.2d 1196

STATE of New Jersey, Plaintiff-Respondent, v. Braynard PURNELL, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 27, 1998.

Decided March 20, 1998.

Ivelisse Torres, Public Defender, for defendant-appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

Peter Verniero, Attorney General, for plaintiff-respondent (Gerard C. Sims, Jr., Deputy Attorney General, of counsel and on the brief).

Before Judges DREIER, PAUL G. LEVY and WECKER.

The opinion of the court was delivered by

WECKER, J.A.D.

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, 601 A.2d 175 (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) ¹; 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. The motion judge also concluded that State v. Anderson, 127 N.J. 191, 603 A.2d 928 (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, because "defendant's petition advanced a claim of constitutional dimension" with respect to his conviction of perjury, that claim is not procedurally barred. See State v. Cupe, 289 N.J.Super. 1, 8, 672 A.2d 1233 (App. Div.), certif. denied, 144 N.J. 589, 677 A.2d 761 (1996); R. 3:22-4(c). And because we are convinced that State v. Anderson should be applied retroactively, we 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.

At trial, defendant's attorney moved to dismiss the perjury count on the ground that the allegedly perjured statement was not material. The allegedly perjurious statement 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 got his daughter to let him climb back into the house through a bedroom window. 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:

[i]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 allegedly 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 that decision, defendant contended in his petition for post-conviction relief that Anderson should be applied retroactively, and that his perjury conviction should be vacated. The State opposed the retroactive application of Anderson on collateral attack.

We recently addressed the issue of retroactive application in the context of a collateral attack. State v. Burgess, 298 N.J.Super. 254, 689 A.2d 730 (App.Div.1997). There we held that the Supreme Court's decision in State v. Alexander, 136 N.J. 563, 643 A.2d 996 (1994), requiring specific jury instructions on a drug kingpin charge 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 decision in State v. Afanador, 151 N.J. 41, 697 A.2d 529 (1997) (Afanador II), applying Alexander retroactively in that case supports our decision in Burgess. Afanador II and Burgess inform our decision today.

N.J.S.A. 2C:28-1a provides:

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:28-1b defines materiality:

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.

[Emphasis added.]

It is the emphasized final sentence of subsection b that Anderson held unconstitutional. Before Anderson, New Jersey and the great majority of jurisdictions treated the question of materiality in a prosecution for perjury as a question of law to be decided by the judge rather than the jury. See State v. Lupton, 102 N.J.L. 530, 133 A. 861 (Sup.Ct. 1926); Gordon v. State, 48 N.J.L. 611, 7 A. 476 (E. & A. 1886); State v. Molnar, 161 N.J.Super. 424, 391 A.2d 1225 (App.Div.1978), rev'd in part on other grounds, 81 N.J. 475, 410 A.2d 37 (1980); State v. Winters, 140 N.J.Super. 110, 355 A.2d 221 (Law Div.1976). See also John E. Theuman, J.D., Annotation, Materiality of Testimony Forming Basis of Perjury Charge as a Question for Court or Jury in State Trial, 37 A.L.R.4th 948 (1985). Until 1995 the United States Supreme Court likewise left the question of materiality in perjury cases to the judge. See Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929), overruled by United...