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State v. Planker

June 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN PLANKER, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 1, 2010

Before Judges Lisa and Coburn.

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, ...


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