STATE OF NEW JERSEY v. KEVIN JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6746-02T4
6746-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN JACKSON,

Defendant-Appellant.

 

 

Submitted May 9, 2006 - Decided June 5, 2006

Before Judges Seltzer and Humphreys.

On appeal from the Superior Court of New

Jersey, Law Division, Criminal Part,

Ocean County, Indictment No. I-744-10-85.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jack Gerber,

Designated Counsel, and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Senior Assistant Prosecutor, of counsel;

William Kyle Meighan, Assistant Prosecutor,

on the brief).

PER CURIAM

The defendant is serving a life sentence for murder. He appeals from the denial of his second petition for post conviction relief.

Defendant contends on this appeal: 1) his application for DNA testing should have been granted; 2) he was prejudiced at trial because the conduct of the trial as a death penalty case "subjected the jury to undue pressure that they otherwise would not have incurred in a standard knowing or purposeful homicide case"; 3) a proportionality review should be applied to non-death penalty knowing or purposeful homicides.

Judge James Citta heard defendant's petition and concluded in a comprehensive oral opinion: 1) the evidence of the defendant's guilt was overwhelming; 2) DNA testing would clearly not result in a new trial; 3) proportionality review is inapplicable because defendant did not receive a death sentence.

We concur with these conclusions, and affirm substantially for the reasons in Judge Citta's oral opinion.

We add the following. On his appeal from his conviction, defendant contended that the process of death qualification was prejudicial because he was deprived of an impartial jury. We rejected this contention, and concluded that it was constitutional for a death qualified jury "to decide guilt as well as whether the death penalty will be imposed." See also State v. Hunt, 115 N.J. 330, 355-356 (1989)(court rejected defendant's contention that death qualification process deprived him of the right to an impartial jury). Defendant is barred from raising essentially the same issue again. R. 3:22-5.

Affirmed.

 

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A-6746-02T4

June 5, 2006