June 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY BANKS, A/K/A GREG BANKS, GREGORY B. BANKS, SR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-06-0623.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 18, 2010
Before Judges Fuentes, Gilroy and Simonelli.
A Union County Grand Jury charged defendant Gregory Banks with first-degree knowing and purposeful murder, N.J.S.A. 2C:11- 3a(1), and/or (2) (count one); first-degree kidnapping, N.J.S.A. 2C:13-1b (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count four); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and fourth-degree contempt, N.J.S.A. 2C:29-9a (count six). Prior to trial, the court dismissed count six. A jury found defendant guilty on all remaining counts.
On November 17, 2006, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on count one to a life term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on count two to a twenty-five year term of imprisonment with a mandatory twenty-five year period of parole ineligibility, consecutive to the sentence imposed on count one; and on count four to an eighteen-month term of imprisonment, concurrent to the sentence imposed on count one. The court merged the convictions on counts three and five with the conviction on count one, and imposed all appropriate fines and penalties. Accordingly, defendant received an aggregate sentence of life imprisonment with an 85% period of parole ineligibility plus twenty-five years without parole.
On appeal, defendant argues:
THE [EXCLUSION] FOR CAUSE BY THE TRIAL COURT OF THREE POTENTIAL JEWISH JURORS BECAUSE THEY COULD NOT ATTEND TRIAL ON YOM KIPPUR WAS AN IMPERMISSIBLE EXCLUSION OF AN ENTIRE COGNIZABLE CLASS OF JURORS, REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.
THE OMISSION OF AN INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER REQUIRES THE REVERSAL OF DEFENDANT'S MURDER, KIDNAPPING AND FELONY-MURDER CONVICTIONS. (NOT RAISED BELOW).
THE COURT'S FACT-SPECIFIC INSTRUCTION ON AGGRAVATED [MANSLAUGHTER] WAS MISLEADING AND FORECLOSED THE JURY FROM CONSIDERING OTHER EVIDENCE PERTAINING TO THE RECKLESS FORMS OF MANSLAUGHTER. (NOT RAISED BELOW).
A MAXIMUM LIFETERM OF IMPRISONMENT FOR MURDER, SUBJECT TO THE NERA 85% PAROLE BAR, IMPOSED CONSECUTIVELY TO A 25-YEAR TERM OF IMPRISONMENT FOR KIDNAPPING PURSUANT TO N.J.S.A. 2C:13-1c(2), WAS EXCESSIVE.
On December 1, 2003, defendant was observed talking to his estranged wife in her automobile in the parking lot of a Hillside elementary school where she worked. Defendant was in the passenger's seat, while his wife was in the driver's seat. Defendant's burgundy van was parked next to his wife's automobile.
On the following day, after failing to report to work, Hillside police detectives and Union County Prosecutor's Office Homicide detectives began to investigate defendant's wife's disappearance. The police located defendant's van that night and towed it to the Hillside Police Department. Blood found in the van was later identified as having come from defendant's wife. The police also found her clothes in the van.
On December 2, 2003, the police searched defendant's wife's automobile parked in the school parking lot. The windshield was cracked, and blood was found on the passenger's seat. At approximately 11:30 p.m. that day, Plainfield police arrested defendant and transported him to the Hillside Police Department at approximately 1:00 a.m. the next morning, December 4, 2003. After the police advised defendant of his Miranda*fn1 warnings, defendant admitted that he had fought with his wife and had choked her. During questioning, defendant told the interviewing detective, "Don't kill your wife like me."
During the evening of December 4, 2003, defendant directed the police to a wooded area located behind the Bonnie Brae Juvenile Facility in Basking Ridge, where defendant had buried his wife's body. The body had multiple bruises, scratches, and abrasions on the head, neck, arms, and legs. The body also had cuts across the neck, right thigh, face, torso, and legs. On examination, it was discovered that her Adam's Apple had been fractured. The State's medical examiner opined that the cause of death was strangulation.
Defendant argues in Point I of his brief that the trial court improperly excluded three Jewish jurors because they could not serve on Yom Kippur.*fn2 Defendant contends that the trial court's actions systematically and entirely excluded members of a cognizable group (observant members of the Jewish faith) from the jury, in violation of the Federal and State constitutions. Defendant asserts that the court's actions in excusing the potential jurors, while intending to accommodate them, deprived him of a jury comprised of a cross-section of the community. We disagree.
A trial judge's removal of a potential juror for cause will be reversed on appeal only for an abuse of discretion. State v. DiFrisco, 137 N.J. 434, 459 (1994) cert. denied, 516 U.S. 1129, 1116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). Discretion "means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)).
"A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007) (citing U.S. Const. amend. VI, N.J. Const. art. I, ¶ 10). "The right to an impartial petit jury encompasses the right to a 'jury drawn from a representative cross-section of the community.'" State v. Fuller, 182 N.J. 174, 194 (2004) (quoting State v. Gilmore, 103 N.J. 508, 524 (1986)). Accordingly, a party to a criminal proceeding may not exercise a peremptory challenge solely to remove "potential jurors who belong to a 'cognizable group . . . defined on the basis of religious principles . . . .'" Id. at 197 (quoting Gilmore, supra, 103 N.J. at 527 n. 3).
Nonetheless, "prospective jurors' beliefs have been, and continue to be, proper grounds for removal when they demonstrate specific bias that inhibits those jurors from judging evidence and following instructions properly." Id. at 201. Thus, a party may exercise a peremptory challenge to remove a particular juror who the party believes entertains a specific bias relating to the case before the court. Id. at 201.
During jury selection, the trial court excused three potential petit jurors based upon their observance of Yom Kippur, which was to take place on the following Monday, during the scheduled trial. The court first excused juror number 82 based on the following exchange during the voir dire:
[Juror 82:] For religious reason I can't be here Monday[,] and Thursday I'm starting school.
[The Court:] I'll excuse you based upon religious reasons. Yom Kippur?
[Juror 82:] Yes.
[The Court:] You are excused. Similarly, the court excused juror number 6:
[Juror 6]: I think -- well, I'm Jewish, so I can't be here Monday.
[The Court]: That's a different issue.
I'll honor the holiday. You are excused.
Defendant's counsel objected, stating "I'm concerned about that application of the holiday essentially excluding everybody that's Jewish from the panel." In response, the court explained that:
There are Jewish people who I am sure do not honor the holiday and they are welcome to sit. We are not closed for court. I honor any kind of holiday of a person who has religious observance. I'll do that. It is not intended to exclude people, but intended to honor the holiday. Objection noted. We are going forward.
The court later excused Juror 208 on the same grounds:
[Juror 208]: Two issues, concerning I'm
Jewish and on Monday, and child care.
[The Court]: I will abide by religious observations. Be with your family. Have a nice day. The gentleman is excuse[d] for religious reasons.
Notably, Juror 137 was also Jewish but was not excused as she advised the court that she would not be observing the holiday. Specifically, the court asked:
[The Court]: You mentioned you are Jewish.
We will work Monday, can you do that?
[Juror 137]: You know, you are right, that's Yom Kippur. I would be willing to put that aside. I wasn't going to go to Temple.
[The Court]: You can be here with us?
[Juror 137]: I will be.
Defendant contends that the court systematically excluded a cognizable class or distinctive group of individuals from jury service. In support of his argument, defendant cites Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed. 2d 579 (1979); State v. Osorio, 199 N.J. 486 (2009); Fuller, supra, 182 N.J. at 174; and Gilmore, supra, 103 N.J. at 508. We find defendant's reliance on these cases misplaced.
Duren did not address improper removal of a cognizable class or distinctive group of individuals from petit jury service; rather, it addressed Missouri's jury selection process, which automatically exempted women from jury service upon request. The Supreme Court held that the jury selection process improperly led to an under-representation of women on the defendant's jury venire. Duren, supra, 439 U.S. at 367, 99 S.Ct. at 670, 58 L.Ed. 2d at 588-89. Here, assuming solely for the purpose of our analysis that "observant members of the Jewish faith" constitute a cognizable or distinctive group, an issue we need not decide, defendant has failed to present statistical evidence to prove "that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community" or that if such under-representation existed, that it was "due to systematic exclusion of the group in the jury-selection process." Id. at 364, 99 S.Ct. at 668, 58 L.Ed. 2d at 587. Additionally, there is no evidence before this court that the three Jewish jurors were entirely excused from jury duty, but only from serving on this particular case.
Osorio, Fuller and Gilmore concern the State's improper use of peremptory challenges to remove cognizable groups of individuals from serving on particular cases based on race or ethnicity, Osorio, supra, 199 N.J. at 507 and Gilmore, supra, 103 N.J. at 521-22, and for religious principles, Fuller, supra, 182 N.J. at 197. This is not such a case. Not all potential Jewish jurors were excused from serving on the case. The three jurors were not removed because of any perceived bias. Nor were they improperly removed by the State exercising peremptory challenges based on religious affiliations. Indeed, the three jurors were excused from serving on this case by the court out of respect for their religious holiday, a valid articulated reason. Accordingly, we conclude that defendant's constitutional right to an impartial jury was not violated by the trial court granting the three jurors' requests that they be excused from serving on defendant's case to accommodate their observance of Yom Kippur.
We have considered defendant's remaining arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).