STATE OF NEW JERSEY v. KEVIN PLANKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0723-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN PLANKER,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 1, 2010 - Decided

Before Judges Lisa and Coburn.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-244-98.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The trial court denied defendant's petition for post-conviction relief ("PCR"). Defendant appeals, and we affirm.

At the conclusion of a three-week trial, the jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a); two counts of third-degree burglary, N.J.S.A. 2C:18-2; third-degree hindering prosecution, N.J.S.A. 2C:29-3; and two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. The sentence imposed for murder was life imprisonment with forty-six years and three months to be served without parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The remaining sentences were concurrent except for the five-year consecutive sentence on hindering prosecution. On direct appeal, we affirmed in part and reversed in part, remanding for resentencing. State v. Planker, No. A-2934-99 (App. Div. Nov. 13, 2003). Pursuant to our remand instructions, the trial court resentenced defendant, thereby modifying the murder sentence to life imprisonment with thirty years of parole ineligibility. The Supreme Court denied certification, State v. Planker, 180 N.J. 354 (2004). Defendant filed his petition for PCR on July 8, 2004, and filed an amended petition on July 4, 2007. The petition was denied on July 13, 2008, and this appeal ensued.

We incorporate by reference the statement of facts as set forth in our opinion on defendant's direct appeal, which demonstrate that the evidence of defendant's guilt was overwhelming.

On appeal from the denial of his PCR petition, defendant offers the following arguments: (1) he was improperly denied an evidentiary hearing with respect to his claim of ineffective assistance of counsel; (2) his trial attorney's representation was ineffective because of the failure to conduct adequate pre-trial investigation, which included not interviewing relevant witnesses and failing to call "quasi-alibi witnesses" available at the time of trial; (3) his trial attorney's representation was also inadequate because of the failure to object to prejudicial and inflammatory testimony and the failure to request appropriate limiting instructions relating to such testimony; and (4) with respect to any meritorious issues that could have been, but were not, raised on direct appeal, defendant's appellate counsel was inadequate.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by the trial court. Nevertheless, we add the following brief comments.

Defendant's primary argument concerns what he describes as his "quasi-alibi witnesses," Pat Gallagher, Sr., and Pat Gallagher, Jr. According to certifications from Pat Gallagher, Sr. and Carole Gallagher, they would have testified that defendant was in their home on August 15, 1997, from 12:00 a.m. until 4:30 a.m. Police testimony indicated that during his confession defendant had said that he buried the victim's body during that time period, and that was the only evidence on that point. The Gallaghers would also have testified that defendant could not have taken a shovel from their premises. Additionally, a certification from Sharmon Sabini states that another person had tried to solicit the victim's murder. Although the Gallaghers were present during the trial and although the judge had ruled, at defendant's personal request, that they be permitted to testify, defense counsel did not call them as witnesses; instead, instructing them to leave the courthouse. There is no indication that he interviewed them before excusing them.

For purposes of this opinion, we will assume that defense counsel's treatment of the Gallaghers was deficient, thereby satisfying the first prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). But to succeed in this context defendant must also establish that as a result there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid.

At best, the Gallaghers' testimony does nothing more than suggest that defendant did not bury the victim when he told the police he had performed that act. Given the balance of the evidence bearing on defendant's guilt, which we will now describe briefly, there is no reasonable probability that that testimony would have affected the result of the trial.

Defendant called the primary investigating detective a couple of days after the murder, telling him to look for the victim in Wildwood. He said he had last seen her a few days earlier when he helped her move out of her apartment. He called the detective again a few hours later and said that he and the victim were "pretty close." A few hours later detectives located defendant and brought him to the police station for questioning. During that questioning, defendant admitted to arguing with the victim in her apartment on August 15. He admitted to then having sexual intercourse with the victim.

On August 17, detectives found and searched a car that another person shared with defendant. The car contained a chain saw, a gas can, pickax, chopping ax, two shovels, and a bow saw.

On August 18, the police found the victim's car in the Vince Lombardi service area on the New Jersey Turnpike in Ridgefield. The car was unlocked and contained the car keys and a purse containing papers bearing the victim's name.

On August 20, during a consent search of the apartment defendant shared with another person, defendant approached one of the officers and said, "Just remember no body, no crime." Later that day, defendant's friend Nicholas Ranieri told the police that on August 17, defendant picked him up and drove to Jefferson Township, where he pulled onto a dirt road. In the car were shovels, a chain saw and a gas can. Defendant told Ranieri that "there's a body over there. You have to help me hide it." Ranieri described a mound of dirt that was a foot high and six feet long. Defendant started hopping on the mound and then "urinated on it." Defendant then put more dirt on the pile, cut down several trees with the chain saw, and pulled the trees over the mound. Before they left, defendant cut down another tree, causing it to fall across the dirt road to keep cars from entering the area. Ranieri drew a map of the grave location and the next day took the police there. The victim's body was found in the grave.

Defendant was arrested shortly after the body was discovered. At first he said the death was an "accident." Later, he described the events in detail, confirming that after beginning to engage in sexual intercourse with the victim, he strangled her to death with his hands. He told another friend, Mike Vasile that he had just murdered the victim. He admitted burying the victim and confirmed the other evidence obtained by the police during the investigation. The autopsy confirmed that defendant's spermatozoa was in the victim's vaginal canal and that she had been strangled.

The trial testimony included numerous descriptions of defendant's mistreatment of the victim and his threats to kill her.

Given the above evidence and the balance of the testimony submitted at trial, we reject defendant's claim that the evidence of the "quasi-alibi witnesses" could have changed the result.

With respect to defendant's claim that he was prejudiced by the evidence of his abusive course of treatment of the victim, we affirm substantially for the reasons expressed by the trial court. Of course, those issues, which are all based on the trial record, could have been raised on the direct appeal. Since they were not, they are barred absent exceptional circumstances. R. 3:22-4; State v. Mitchell, 126 N.J. 565, 587 (1992). There are no exceptional circumstances here. We note that much of that evidence came in as a result of questions that defendant demanded his attorney ask during the trial. Furthermore, since the arguments lack merit, there is no basis on which appellate counsel may be faulted for not raising them. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 994.

Since defendant's claims are entirely without merit when weighed against the overwhelming evidence of guilt, and since an evidentiary hearing could not have added anything to buttress defendant's case, the trial court was correct in denying one. State v. Preciose, 129 N.J. 451, 462-63 (1992).

 
Affirmed.

(continued)

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A-0723-08T4

June 18, 2010