February 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARC A. JORDAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-02-0203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Waugh and Newman.
Defendant Marc A. Jordan was found guilty on August 2, 2001, of first degree robbery, N.J.S.A. 2C:15-1 (count one), third degree making a terroristic threat, N.J.S.A. 2C:12-3b (count two), third degree witness tampering, N.J.S.A. 2C:28-5a (count three), and fourth degree obstruction of justice, N.J.S.A. 2C:29-1 (count four).
The relevant facts underlying the conviction may be briefly summarized as follows. Defendant approached the victim, Anthony Kellerman, who was employed at Foodtown in Ocean Township, and accused him of robbing "one of the boys." Defendant grabbed the victim and demanded his wallet. Believing defendant was armed, the victim permitted defendant to strip him of his bomber jacket, a gold chain, money access card (MAC) and one dollar. A bank statement later disclosed an unauthorized MAC withdrawal of $450. After defendant learned the police were looking for him, defendant started calling the victim, offered to return the stolen items in exchange for the victim not to identify him as the robber. Prior to trial, defendant sent the victim a threatening letter in an attempt to stop him from appearing in court.
The trial judge sentenced defendant under the three strikes law, N.J.S.A. 2C:43-7.1a, to a life sentence without parole on the armed robbery conviction, consecutive to another life sentence without parole that defendant was already serving. The other sentences were to be served concurrent with the life sentence. On appeal, defendant's conviction was affirmed but there was a remand to merge the terroristic threat conviction with the armed robbery conviction. State v. Jordan, A-4816-01T4 (App. Div. Oct. 31, 2003). The Supreme Court denied defendant's petition for certification. State v. Jordan, 179 N.J. 369 (2004).
Defendant filed his first petition for post-conviction relief (PCR) on August 24, 2004. That petition was denied by the trial court on the grounds that defendant previously raised the same issue in connection with another indictment that was then before this court. Defendant did not appeal from the trial court's ruling. The second petition for post-conviction relief was filed on April 11, 2005. The trial judge denied it and this court affirmed. State v. Marc A. Jordan, Docket No. A-5886-04T2 (App. Div. June 9, 2006).
On July 31, 2006, approximately one and one-half months after this court affirmed the denial of defendant's second PCR, defendant filed a third PCR, which was denied on March 30, 2007. In this petition, he argues that the trial court engaged in several off the record ex parte communications with deliberating jurors, depriving him thereby of his right to be present and to have a fair trial. He states that following the conclusion of the victim's testimony, the court informed counsel that he was approached by two jurors and engaged in an off the record conversation. The court had this to say about those conversations:
THE COURT: First of all, Mrs. Sullivan, Juror number one, came to me after lunch and she said she spoke to her employer and he said she's going to be paid for this week so she's here. She doesn't have to be excused.
That's number one.
Number two, Mrs. Deaver (phonetically) said to me just now, Juror number fourteen, I may have missed something, I don't know what she was talking about. I don't know where this happened. I don't know what town this is in, so I just told her, you are a sponge you soak up the information and just listen to the evidence and (its) not for me to give her any evidence that occurred during the course of the trial.
MR. CHIARELLA: (Defense counsel) All right.
THE COURT: All right, so, tomorrow nine o'clock.
Following the return of the verdict and polling of the jury, the foreperson of the jury indicated that they would like to ask the court a question. The court then indicated the following on the record:
THE COURT: This jury having found the defendant guilty of all four charges, I'll order a presentence investigation. Set the matter down for -- sentencing for:
THE COURT CLERK: October 5th, your Honor.
THE COURT: Okay. The jurors have a question and I said I would speak to them inside the jury room for a few minutes.
MR. CHIARELLA: Excuse me. I'm not going to be here. October 12th ?
THE COURT CLERK: How about October 12th?
MR. CHIARELLA: October 12th will work.
THE COURT: All right. October 12th. The bail status remains as fixed. They can see him in covers now they have done their job.
MR. CAMPO: Judge, if I can get the evidence?
THE COURT: Yeah.
Defendant moved to remand the matter regarding these ex parte communications with jurors. The State agreed that the matter should be remanded to the trial court "in order to allow the trial judge to clarify the record." In so doing, the State referred to State v. Walkings, 388 N.J. Super. 149, 157-58 (App. Div. 2006) and quoted the following passage:
Here, the record contains only the broadest generalizations about the content of the juror's communications. The lack of materials that ought to be in the appendix and the lack of specificity in the judge's description of his communications with the juror greatly hamper our ability to determine whether a hearing should have been conducted regarding the juror's concerns. The record does not present a clear description of the content of the juror's communications to the prosecutor's office or what was said during the judge's ex parte interview of him. Accordingly, we cannot know, based on our review of this record, whether the juror's concerns implicate the "plainest principles of justice." We remand for a further exploration of the issues, including the creation of a record that would disclose all the communications between and among the juror, the prosecutor's office and the trial judge.
[Id. at 157-59.]
The State pointed out that there were no communications between the prosecutor and a juror as there was in Walkings, but believed that any possible communication between the trial court and the jurors was unclear and further clarification was necessary. This court, in granting a temporary remand on October 21, 2008, directed the following: "[t]he remand proceedings and a related supplemental decision limited to the alleged ex parte communications with jurors shall be completed by December 15, 2008."
In a letter of December 12, 2008, the trial court responded to the remand regarding "alleged ex parte communications with jurors" and stated in pertinent part as follows:
One juror did approach the court to advise that she had spoken to her employer and would be able to serve. Another juror approached the court to say that she was somewhat confused by the evidence. She was told to continue to listen and absorb the evidence.
The facts of this case have been adequately described in previous appeals and post-conviction relief applications. Defendant committed a robbery of a stranger on a township street and then threatened the victim if he would report the robbery to the police. He continued to threaten the victim, even coming to his residence.
At the conclusion of the trial after the jury found defendant guilty and after their polling, several of the jurors asked if the court could speak with them in private. I went into the jury room where I was asked if the defendant could find out where they lived. They were afraid of defendant based upon the facts as they apparently found.
They were told that defendant could probably find out where they lived, but he would be incarcerated for a long time.
This court finds nothing irregular or prejudicial to the defendant from any of those discussions.
Judge Kreizman, who was the trial judge, also filed a letter of October 10, 2008, providing the reasons the third petition for post-conviction relief was denied. He outlined defendant's three claims:
The first claim alleges that defendant was denied a fair trial when the court engaged in off the record ex parte communications with deliberating jurors. The second claim alleges that the defendant was denied a fair trial and the court failed to conduct an adequate inquiry of the juror. Finally, the third claim alleges that Detective Pangaro's testimony violated the defendant's Fifth Amendment right to remain silent.
Defendant urged that these three claims were grounds for ineffective assistance of both trial and/or appellate counsel.
In addressing these issues, Judge Kreizman found defendant was procedurally barred under Rules 3:22-4 and 3:22-5 because he had raised or could have raised these issues in prior proceedings. He further quoted from the Supreme Court decision in State v. Mitchell, 126 N.J. 565, 584 (1992), which expounded on the need for finality behind the procedural bars of Rule 3:22.
The State has a strong interest in achieving finality. Without procedural rules requiring the consolidation of issues, litigation would continue indefinitely in a disconnected and piecemeal fashion. Each time a petitioner brought forward a new issue, attorneys and courts would waste their limited resources acquainting themselves with all of the complex details necessary to adjudicate it. When the grounds for challenging a conviction are consolidated, that investment need occur only once, and judicial resources can be more efficiently used to decide cases in a timely fashion. Moreover, relevant issues in a case are often interrelated.
Adjudicating them separately would impair a court's ability to reach a result that fairly synthesizes all of the relevant factors into a just and reasoned outcome. Notwithstanding the procedural bar, Judge Kreizman stated he: specifically addressed the claims made by the defendant in regards to questions posed by jurors, and the testimony given by Detective Joseph Pangaro. Both of these claims were procedurally barred, but the court nonetheless addressed the merits of these and other issues involving instructions to the jury and alleged failures to make objections by the trial counsel.
Following the response to the remand order of this court, defendant submitted a letter on December 24, 2008. He argues that the limited remand should have been the subject of a hearing so that there would be testimony from the jurors as to what was discussed and the letter from the trial court as to what was discussed in the jury room post-verdict was insufficient. He also contends that he was entitled to be present at every critical stage of the proceeding, including the post-verdict conversation the judge had with jurors. He further asserts that the first time he learned of what the jurors' inquiry was post-verdict was Judge Kreizman's response. Defendant maintains that he would still be entitled to a hearing to determine whether he had been prejudiced by that conversation, assuming that the trial judge accurately related what occurred.
Defendant also contends that juror number fourteen, Ms. Deaver, who claimed that she had missed something relative to where the offenses took place, was not adequately probed by the trial court. If she missed facts that were necessary to determine defendant's guilt or innocence of the charged offenses, then, defendant maintains, he would stand convicted by a jury where one juror did not have all of the facts in her possession. We reject defendant's arguments and affirm.
With regard to the communications to the judge during the trial, Judge Kreizman put on the record exactly what the discussions were and there was no objection by either defense counsel or the State. If any probing of Mrs. Deaver, juror number fourteen, was to be done, it should have taken place at that time. These communications that were not on the record, but placed on the record by Judge Kreizman, were known and could have been raised on defendant's direct appeal on his first petition for post-conviction relief and on his second petition for post-conviction relief. Apparently, they were not pursued in any of those earlier proceedings. Defendant cannot wait until his third post-conviction relief to parse out these issues. He represented himself on the second petition for post-conviction relief and the appeal therefrom. He cannot blame any attorney's ineffectiveness for not raising these issues before since it falls squarely on his own shoulders, insofar as his second PCR is concerned. We also agree with the PCR judge, who was also the trial judge, that Rule 3:22-4 would bar this issue from being considered. The finality which underlies this Rule seeks to bring an end to litigation. Defendant cannot continue indefinitely in this piecemeal manner.
We also agree that there was no prejudice resulting from these communications. Juror number one, Mrs. Sullivan, discussed her employment and confirmed that her employee had given approval for the time she would be serving on the jury. Any concern the juror had about being paid while serving on a jury were alleviated by her employer. The nature of this communication could not have prejudiced the outcome of the trial. Indeed, it had no bearing upon the merits of the case.
Ms. Deaver heard additional days of testimony and did not indicate again that she missed any testimony that would make her insecure in making a determination of defendant's guilt or innocence. Besides, her concern was uncertainty over which town the event occurred. The location of the crime is not an element of the offenses with which defendant was charged. Consequently, no finding of fact had to be made by the jury that the offenses took place in a specific town. We fail to discern any prejudice resulting from these communications.
In regard to the post-verdict inquiry by the jury, it may very well be the first time that the subject matter of what was discussed in the jury room by the court has been brought to defendant's attention. However, defendant was aware at the time of trial that the jurors had asked to speak to the court, and the court indicated its willingness to do so following the rendering of the verdict and the polling of the jury.
Defendant could have raised this same issue as previously described much earlier, but apparently did not do so. The mere fact that he elected to do so now does not lift the procedural bar of Rule 3:22-4. Notwithstanding, we also agree with the trial judge's finding that there was nothing prejudicial to defendant from the discussion where the jurors spoke of their fear of defendant and whether he could find out where they lived. The trial judge told them that defendant could probably locate their residence, but reassured them by advising the jury that defendant would be incarcerated for a long time.
The trial court should not have held this post-verdict discussion off the record. In re Mathesius, 188 N.J. 496, 502-09 (2006). Unlike In re Mathesius, supra, counsel were aware of the jury's request to speak to the court and did not object to the court doing so. The jurors apparent fear of defendant was no doubt attributed to the testimony of threats made by defendant against the victim if he testified. Indeed, charges of terroistic threats, witness tampering and obstruction of justice were charges to be decided by the jury. It is not surprising that the jurors might have concern for their own safety given the nature of the testimony presented. Nonetheless, there is no suggestion of any outside influence which injected itself into jury deliberations. State v. Kociolek, 20 N.J. 92, 100 (1955); see also State v. Hightower, 146 N.J. 239, 264 (1996).
It is in the public interest to maintain the secrecy of jury deliberations. R. 1:16-1; see also Pressler, Current N.J. Court Rules, comments on R. 1:16-1 at 225-228 (2009). Inquiry into the events surrounding the jury's decision is only permitted where an initial showing is independently made that misconduct occurred which tainted the verdict. State v. La Fera, 42 N.J. 97, 106-08 (1964). Stated differently, "[c]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct." State v. Athorn, 46 N.J. 247, 250 (1966), cert. denied, 384 U.S. 962, 86 S.Ct. 1589, l6 L.Ed. 2d 674 (1966).
Defendant has failed to make the threshold showing that the verdict in this case was tainted. Under the circumstances, we are not about to pursue a fishing expedition into the jury's deliberations.
The order denying post-conviction relief is affirmed.
© 1992-2009 VersusLaw Inc.