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State of New Jersey v. Kevin Planker

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 15, 2011

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

On appeal from the 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

Decided Motion for reconsideration granted.

Resubmitted February 17, 2011

June 18, 2010

Before Judges Lisa and Coburn.

We filed an opinion on June 18, 2010, disposing of this appeal, which was from the denial of post-conviction relief ("PCR"). Defendant filed a motion for reconsideration on August 11, 2010, and on September 8, 2010, we granted the motion, allowing defendant to file and have us consider his pro se brief. The brief was filed on February 17, 2011, and raised these arguments:

POINT ONE-

BECAUSE THE EXISTING RECORD PROVES CUMULATIVE ERROR VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND DEPRIVED PETITIONER OF A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL, THE CONVICTION MUST BE REVERSED ON THE EXISTING RECORD PURSUANT TO STRICKLAND V. WASHINGTON AND TAYLOR V. KY.

Complete Ineffectiveness Claims Raised but Not Ruled on.

Cumulative-Error Arguments Raised but Not Rules on.

I. The Aggregate of Other-Crimes/Other-Bad-Acts Errors Warrants Reversal Without an Evidentiary Hearing Because the Record is Fully Developed and the Errors Had the Clear Capacity to Have Brought About an Unjust Result through Cumulative Prejudice that, at the Very Least, Likely Led to a Murder Conviction Rather than a Manslaughter Conviction.

a. Complete 404(b) Prejudice Not Fully Listed By Counsel.

b. Clear Authority on 404(b) Prejudice.

c. Lack of Strategy Excuse for Counsel.

d. No Record to Support Appellant Eliciting Other Crimes.

e. Preserved Issues, Plain Error, and R. 3:22-4 on Direct.

f. Cumulative 404(b) Prejudice Ripe for Review.

g. Jury Might Have Voted For Manslaughter Absent Errors.

h. Because Appellant's State and Federal Constitutional Rights to Effective Counsel and a Fair Trial were Violated by the Unlimited and Uncured Other-Conduct Evidence and Comments, Reversal is Warranted under Plain-Error and R. 3:22-4.

i. It is Well Established that a Hearing is Not Necessary Irrespective of Whether the Errors are Blamed on The Attorneys, The Prosecutor, or The Court.

j. State's Grounds For Murder Intent Based on Other-Crimes.

k. The Door-Opening Argument Does Not Apply.

II. Confrontation Violations and Related Errors Counsel Omitted.

III. Denial of Presence and Denial of Public Trial.

IV. Additional Record-Supported Errors Counsel Omitted.

V. Compromised Juror and Presumed Inherent Prejudice.

VI. Replacement Judge Not Familiar With Trial.

VII. Passion Provocation Not Charged.

VIII. Improperly Admitted Arrest Not Ruled on.

POINT TWO-

APPELLANT'S ALIBI CLAIMS WERE NEVER PROPERLY ADVANCED.

POINT THREE-

APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF PCR COUNSEL.

Appellant Attempted to Proceed Pro Se Below and Here.

POINT FOUR-

THE PCR COURT ERRED BY NOT RULING ON ALL THE CLAIMS.

1. Intent Based on Uncured and Unlimited 404(b) Material.

2. Ignored Issues in Pro-Se Brief and Appendix.

3. Improperly Admitted Municipal Arrest.

4. Amended Issues Ignored.

5. Motion to Compel PCR Counsel to Advance Claims.

6. Motion to Proceed Pro Se During PCR.

We will now dispose of the issues defendant raises, while incorporating by reference our previously filed opinion and our opinion on defendant's direct appeal. After carefully reviewing the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Under his first point, defendant complains about the admission of evidence relating to other crimes, wrongs or acts. In our first opinion affirming the denial of post-conviction relief, we rejected this argument because it could have been raised on direct appeal, Rule 3:22-4, and because it had no merit whatsoever. Nothing in defendant's pro se brief convinces us otherwise.

Defendant also claims under his first point that he was denied presence at trial. The incident arose after the trial had been concluded except for deliberation by the jury. When the jury was brought in the next morning, defense counsel consented to the jury being sent out to begin deliberations without defendant's presence. The judge told the jury that he had given defendant permission to be absent for this brief period of time. The claim is barred by Rule 3:22-4, and, in any case, the defendant suffered no prejudice.

Still under his first point, defendant claims that a juror was compromised because of a threat transmitted to the juror's husband. The prosecutor indicated that the husband had not said anything to his wife about the threat. Anyway, the juror did not deliberate on the case. Therefore, we perceive no prejudice and cannot fault appellate counsel for not raising this point in the direct appeal.

Just before summations and charge, another judge took over the trial because the trial judge was in surgery. Under his first point, defendant argues that Rule 1:12-3(b) was violated because the new judge was not "able to become familiar with the proceedings and all of the testimony therein through a complete transcript thereof." Ibid. Generally, the judge should make a statement on the record as to his or her familiarity with the transcript. Id. Comment 2. That did not happen here, but nothing in the rule or commonsense suggests that this failure on the part of the substituted judge requires reversal without a showing of prejudice. Again, the argument is barred since it could have been raised on appeal, and in any case the claim for automatic reversal for violation of the rule is without merit. Defendant's second point concerns the failure to advance his partial alibi claim. We addressed and rejected this argument in our first PCR opinion.

Under his third point, defendant complains about the denial of effective assistance by his PCR counsel and about the denial of self-representation in the PCR proceedings. He suggests that his attorney failed to advance some of his claims, but in fact his attorney began his argument below by specifically incorporating all of the arguments defendant had put in his pro se petition for PCR. Although defendant says he attempted to proceed pro se at the PCR proceeding, the record is to the contrary, revealing, as it does, that the judge heard argument from both the attorney and defendant.

Although defendant claims, in his fourth point, that the PCR court did not rule on all his claims, that is simply not so. Apart from simply repeating prior arguments, which we have rejected, he says that had the trial judge not erred in admitting the other crimes evidence, the jury might have found him guilty of manslaughter instead of murder. But since we have rejected his contentions with respect to the admission of the other crimes evidence, this point is moot.

Finally, defendant concludes by arguing that the "cumulative impact of the record-supported errors requires reversal of the conviction on the existing record . . . ." Apart from the obvious fact that any such claim is barred by Rule 3:22-4, absent exceptional circumstances, here there is no accumulation of error. Consequently, we are once more obliged to affirm.

Affirmed.

20110315

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