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State v. Jordan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 2, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARC A. JORDAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-02-0203.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2009

Before Judges Waugh and Newman.

Defendant Marc A. Jordan appeals from an order denying his fourth petition for post-conviction relief (PCR). We now affirm.

Defendant was tried on a multi-count superseding indictment No. 99-02-0203 returned in Monmouth County on February 2, 1999.

Tried by a jury, defendant was convicted of two counts of armed robbery (counts ten and twenty-five), two counts of kidnapping (counts thirteen and twenty-four), robbery (count fourteen), three counts of theft by extortion (counts eight, seventeen and twenty-six), possession of a handgun for unlawful purposes (count eleven), two counts of terroristic threats (counts fifteen and nineteen), two counts of criminal restraint, (counts seven and nine) and unlawful possession of a handgun without a permit (count twelve). Defendant was acquitted on four other counts (counts eighteen, twenty-three, twenty-seven, and twenty-eight).

All of these charges occurred in mid-1997 and included five victims. Defendant approached the victims at various locations in Monmouth County, usually a mall, to extort money or rob them by employing various ruses, including an oft-repeated one that the victim, along with others, was supposed to have beaten up a black friend of his, and defendant was dispatched to avenge these beatings. Defendant would then indicate to the victim that he did not believe the victim was involved but would have to be paid to protect the victim from harm. Variations of this essential scam were used and the facts are fully set forth in this court's opinion on the direct appeal. State v. Jordan, Docket No. A-2414-00T4 (App. Div. Nov. 18, 2002).

Defendant continued with intimidating tactics when money was not paid. After his arrest, he even sent letters to the victims, threatening harm to them and their families if they testified against him.

The trial court granted the State's motion for a life sentence under the three strikes law, N.J.S.A. 2C:43-7.1. On October 24, 2000, the trial judge sentenced defendant to life in prison without parole on count ten. Defendant was sentenced to twenty years imprisonment on count twenty-five, with ten years parole ineligibility; ten years imprisonment with five years parole ineligibility on each of counts eight, eleven, thirteen, fourteen, seventeen, twenty-four and twenty-six; five years imprisonment with two and one-half years parole ineligibility on counts seven, nine, twelve, fifteen and nineteen. All of these terms were made to run concurrent to each other. Pursuant to N.J.S.A. 2C:44-5h, the trial judge ordered defendant to serve these aggregated sentences consecutive to the terms of imprisonment defendant was already serving.

Defendant's conviction was upheld by this court. State v. Jordan, supra. The Supreme Court denied certification. State v. Jordan, 175 N.J. 549 (2003).

Defendant's first petition for post-conviction relief was denied on June 11, 2004. His second petition for post- conviction relief was denied on June 3, 2005. Defendant's third petition for post-conviction relief was denied on March 16, 2007. All of these petitions were denied by the trial judge, Judge Del Bueno Cleary. Defendant has only included the orders of that trial court. He has not provided the "date and nature of the claim . . . and concerning any appeal therefrom, together with copies of opinions therein, trial and appellate. . . ." R. 3:22-8. His verified petition should have included this additional history. This is particularly significant in determining whether defendant is raising grounds that were expressly adjudicated in a prior PCR proceeding. R. 3:22-6. This omission from the PCR petition could constitute a ground for dismissal of the petition.

Defendant filed a fourth petition on January 4, 2008. That petition was denied by Judge Neafsey on January 17, 2008. The basis for the denial was Rule 3:22-12(a). Rule 3:22-12(a) provides that no petition, other than one for an illegal sentence, shall be filed more than five years after rendition of the judgment or sentence sought to be challenged, unless facts showing that delay beyond said time was due to defendant's excusable neglect. That Rule provides that the petition may be denied when it is filed more than five years beyond the date of the sentence on October 24, 2000.

Defendant does not initially attempt to show excusable neglect, but contends that the fourth petition was really his second petition which allegedly was filed on October 20, 2005, four days before the five year time bar would have run. Defendant claims that he filed it with the court and submits a certified mail, return receipt which does not show any signature on it, whether it be for lack of legibility or it was never signed. There were no proofs indicating that Judge Del Bueno Cleary ever received the papers. Nor was there any documentation from the Criminal Case Management Office confirming that the PCR petition was received in October 2005.

Additionally, Judge Del Bueno Cleary denied what was a third PCR in an order dated March 16, 2007. If defendant's PCR was filed on October 20, 2005, as he claims, then it remains inexplicable why this third PCR was decided before defendant's alleged "second" PCR or why defendant waited until January 4, 2008, to make a written inquiry as to the status of the PCR allegedly filed on October 24, 2005. Defendant has failed to satisfy his burden of proving a timely filing.

Moreover, there is no showing of any excusable neglect. Defendant claims that he did not receive the transcript of the jury selection until September 25, 2005. However, he had already exhausted his direct appeal and two post-conviction relief proceedings without having obtained the transcript of the jury selection process. Parenthetically, we note that the arguments defendant makes, except possibly for Part C of Point I as set forth hereinafter, did not require the transcript of jury selection in order to be presented. Furthermore, defendant cannot piecemeal the issues he wishes to raise in succeeding PCR petitions by delaying the obtaining of transcripts. His claim of alleged indigence is unavailing. There are means by which defendant could have moved for free transcripts as a consequence of indigency. No reason is furnished why the transcript was not sought as part of his direct appeal or his two prior PCR petitioners. We are satisfied that the excusable neglect standard has not been met and that the procedural bar of Rule 3:22-12(a) was properly invoked.

Notwithstanding, we address the issues raised on the appeal as set forth by defendant as follows:

POINT I:

DEFENDANT'S MOTION FOR SUMMARY DISPOSITION SHOULD BE GRANTED AND THE MATTER REMANDED BACK TO THE LAW DIVISION FOR AN EVIDENTIARY HEARING ON THE DEFENDANT'S JURY SELECTION CLAIMS OR IN THE ALTERNATIVE ACCEPT DEFENDANT'S MOTION BRIEF AS HIS MERITS BRIEF.

A. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY WHEN IT REFUSED TO QUESTION THE PROSPECTIVE JURORS ON 'RACIAL BIAS' UPON TRIAL COUNSEL'S REQUEST.

B. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO BE PRESENT AT ALL STAGES OF HIS TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE TRIAL COURT, THROUGH VARIOUS MEANS, FAILED TO AFFORD DEFENDANT AN OPPORTUNITY TO PARTICIPATE DURING VOIR DIRE OF THE PROSPECTIVE JURORS AT SIDEBAR; AND TRIAL COUNSEL FAILED TO CONFER WITH DEFENDANT IN REGARDS TO WHAT TRANSPIRED DURING THE SAME.

C. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY WHEN THE TRIAL COURT, DURING JURY SELECTION, FAILED TO INFORM THE PROSPECTIVE JURORS THAT THE INDICTMENT IS NOT EVIDENCE OF DEFNEDANT'S GUILT BUT MERELY A VEHICLE FOR BRINGING HIM TO TRIAL AND WOULD THEY HAVE ANY DIFFICULTY AFFORDING DEFENDANT THE BENEFIT OF THOSE PRINCIPLES; ALSO THE COURT FAILED TO ADEQUATELY VOIR DIRE AND FURTHER INTERROGATE A JUROR WHO PARTICIPATED THROUGHOUT THE TRIAL AND RENDERD A VERDICT.

At the outset we note that challenges to jury selection are untimely when they are not brought before a juror is sworn, or for good cause shown, after the juror is sworn but before evidence is presented. Rule 1:8-3(b); State v. Turner, 246 N.J. Super. 22, 28 (App. Div.), certif. denied, 126 N.J. 335 (1991). These untimely challenges, along with a lack of support, do not warrant a hearing on the matter.

Notwithstanding, we address the first claim that the trial court failed to make inquiry about racial bias. A review of the jury selection transcript shows that no request was ever made in open court by defendant or counsel on his behalf for such inquiry. Defendant contends that his attorney repeatedly asked the court in chambers that such an inquiry be conducted of the jurors since the crimes involved a black defendant and Caucasian victims. According to what was purportedly told to defendant by his counsel, the trial court was not willing to do so. There is no affidavit from anyone who was present for those alleged conversations. Defendant's double hearsay contention is wholly lacking in merit and is rejected.

With regard to the court's failure to conduct a conference on the record where the issue of racial bias could have been addressed, Rule 1:8-3(f) only became effective in September 2000, subsequent to the jury selection in this case. Thus, no requirement of an on the record conference was in effect.

Defendant argues that he was deprived of his right to be present at sidebar during voir dire. State v. W.A., 184 N.J. 45, 60 (2005), indicated that a defendant should be present at sidebar, unless it would be inappropriate for reasons of security. Here, defendant was present in the courtroom during voir dire. Any sidebar conferences were conducted with attorneys present. Defendant claims that his attorney did not communicate what was said at sidebar. We recognize that the lawyer-shuttle system contemplates that the lawyer will confer with his client after each sidebar interview of a prospective juror. Id. at 61. However, defendant does not provide any corroborating affidavit from his lawyer that such conferences did not take place. We fail to discern any merit in this uncorroborated contention, more than seven years later.

Furthermore, our review of the sidebar conferences did not disclose anything that would make any difference in exercising any of the challenges, either for cause or on a preemptory basis. In fact, no challenge for cause was exercised, although defendant did exercise a number of preemptory challenges, but did not come close to exhausting the preemptory challenges available to him.

Defendant next contends that the voir dire of Edward Quirk was not probing enough. During the colloquy with Mr. Quirk, in response to whether the juror or any family member was the victim of a crime, Mr. Quirk indicated that his wife was a victim of a crime approximately ten years before. He said that someone tried to rob her and attacked her with mace. The court then asked:

Is there anything about that experience that would prevent you from being fair and impartial here?

Juror: No, I would be fair.

Defendant contends that the court should have asked more questions than it did, suggesting that it should have interrogated the juror about whether the suspect was caught, what was the disposition of the case, and whether anything was held against the defense attorney. The court did not have to delve any further than it did based on what was related by Mr. Quirk. If defendant was not satisfied with the prospective juror's response to the fact that his wife was a victim of an attempted robbery, he should have advised his counsel to exercise a preemptory challenge. He cannot wait more than seven years to criticize the failure to question the prospective juror about more details concerning the attempted robbery. The claim has no merit.

Lastly, defendant asserts that his Sixth Amendment right to a fair trial was violated because the trial court did not instruct the jury during voir dire that an indictment is not evidence of defendant's guilt, but merely a vehicle for bringing defendant to trial, and did not inquire whether any prospective juror would have difficulty applying those principles. The court is not mandated to give that specific instruction to the jury panel. The court did refer to the crimes returned in the indictment as allegations. More significantly, the judge repeatedly asked the jurors if they could follow the principle that defendant is presumed innocent until proven guilty by the State beyond a reasonable doubt which is central to any criminal proceeding. We discern no error in the trial judge's conduct of the voir dire, much less with his not referencing the indictment as a mechanism to bring defendant to trial and not being evidence of his guilt of the charges.

The order denying defendant's fourth petition for post-conviction relief is affirmed.

20090202

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