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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 ...