Opinion
DOCKET NO. A-4658-12T1
02-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY BANKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Albert Cernadas, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-06-0623. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Albert Cernadas, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Gregory Banks appeals from an order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted of murdering his estranged wife, Deanna Banks, who was a school teacher in Hillside. On November 17, 2006, he was sentenced to life imprisonment for the murder, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, plus an additional twenty-five years without parole for the kidnapping that culminated in the murder, N.J.S.A. 2C:13-1(c). The sentence means that defendant must serve more than eighty-eight years in prison before he is eligible for parole.
The evidence at defendant's trial included testimony of witnesses who saw defendant and Deanna Banks on December 1, 2003, sitting in her car in the parking lot of the school where she worked. Defendant's van was parked next to her car. The next day, Deanna Banks did not come to work. The police seized defendant's van that evening and found blood and a dental plate inside that were later identified as the victim's. The police also found the victim's car still parked in the school parking lot with its windshield cracked and Deanna Banks's broken glasses on the ground next to the passenger door. Inside the car, the police found an earring near a blood-stain on the seat.
Defendant was arrested late at night on December 2, 2003. The police observed visible injuries to his hands and face indicating he had been in a fight. He also displayed signs of physical or mental infirmity, and at a later time, he claimed he had taken an overdose of a prescription narcotic medication in an effort to kill himself. After the arrest, emergency medical technicians examined defendant and found no obvious physical or mental ailment that seemed to affect his mental capacity. The police found a note in defendant's pocket that indicated his displeasure with actions of his wife and used the phrases "semper fidelis" and "death before dishonor," which defendant explained as references to his Marine training and credo. The note also asked God to forgive defendant.
About twelve hours after defendant was arrested, the police began interrogating him, first advising him of his Miranda rights. Almost immediately, defendant made admissions that were highly probative of his involvement in his wife's disappearance. Among other things, he admitted he had fought with her in the school parking lot about their marital difficulties, and he said to the police, "Don't kill your wife like me."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Over the next two days, defendant was warned two more times of his constitutional rights, and he made additional admissions. Eventually, he gave a full oral confession, stating that he had strangled his wife to death in his van. He would not provide a written confession, but he offered to reveal where he had buried her body. On December 4, 2003, defendant led the police to a wooded area near the Bonnie Brae School for Boys in Bernards Township, where Deanna Banks's body was recovered showing evidence that she had been beaten and strangled.
In June 2004, a Union County grand jury indicted defendant on charges of murder, kidnapping, weapons offenses, and contempt for violating a restraining order that Deanna Banks had obtained against him. The court conducted a pretrial hearing in May 2006 and denied defendant's motion to suppress his statements to the police. At the trial in September and October 2006, the jury found defendant guilty on all charges that had been presented for its consideration — murder, kidnapping, and the weapons charges.
The contempt charge had been severed and was eventually dismissed.
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After defendant was sentenced, he filed a direct appeal, which we rejected by an unpublished opinion. State v. Banks, A-4932-06 (App. Div. June 9, 2010). The Supreme Court denied his petition for certification. State v. Banks, 204 N.J. 41 (2010).
Defendant filed a PCR petition on December 2, 2010, alleging that his trial and appellate attorneys had represented him ineffectively in violation of his rights under the Sixth Amendment and the New Jersey Constitution. An attorney was appointed to represent defendant and filed both an amended PCR petition and a motion to disqualify the trial judge from hearing the petition. The latter motion was denied in November 2012. The judge heard argument and denied the PCR petition on April 8, 2013, placing a detailed oral opinion on the record.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.We find no merit in the appeal.
A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post Conviction Relief.
B. The Trial Court Erred in Denying the Defendant's Petition for Post Conviction Relief in Light of the Adversarial and Irreconcilable Relationship Between the Defendant and Trial Counsel.
In considering a petition for post-conviction relief, the court begins with a presumption that a defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Loftin, supra, 191 N.J. at 198.
In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the Court identified a two-part test for evaluating claims of ineffective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.To satisfy the second part of the Strickland test, "defendant must show that 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. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Here, defendant argues his trial attorney performed deficiently because he did not spend enough time with defendant to prepare for the Miranda hearing and for the trial. He adds that he was entitled to be represented by a different attorney because his trial attorney had an adversarial relationship with him. The trial record, however, reveals that defendant's trial attorney spent much more time in preparation of the case than defendant alleges, and the adversarial relationship was caused by defendant.
In support of his argument, defendant references an outburst by him in the courtroom at the time the pretrial Miranda hearing was about to begin. Speaking to the judge, defendant claimed he did not "have legal representation" because his attorney had done "nothing," had given him only "four, five minutes of representation," had not told him that the Miranda hearing would take place that day, and did not "listen" to defendant. Defendant turned to leave the courtroom, making comments about a "kangaroo court." The judge reminded defendant that he, the judge, had personally told defendant on a previous date in the courtroom that the Miranda hearing would take place on that date, and the judge warned defendant that the hearing would proceed even if he chose not to be present. The judge stated that defendant's attorney was the second attorney appointed to represent him, apparently because defendant had some problems with his first attorney.
The next morning, the attorney used his time sheets to represent to the court that he had spoken to defendant on six dates preceding the Miranda hearing, some on the phone and some in person at the jail or in the courthouse. One of the personal meetings at the jail had lasted about two hours. Counsel intended to prepare defendant for testimony at the Miranda hearing that evening should defendant choose to testify after hearing the State's witnesses.
At the suppression hearing, the attorney presented testimony of a doctor to support defendant's contention that he was mentally incapacitated when he confessed because he had taken an overdose of prescription medication. However, the doctor could not confirm defendant's claims as to the number of pills he had ingested some twenty hours before his arrest and could not refute the prosecution's contention that the effect of the alleged overdose would have worn off by the time of the confession some fifty-six hours later. The doctor could not testify that defendant's mental condition resulted in his failure to understand his rights and the nature of the questioning.
There was ample evidence at the hearing to support the court's denial of defendant's suppression motion. Subsequently, there was overwhelming evidence of defendant's guilt at his trial to support the jury's verdict.
Defendant contends he was entitled to an evidentiary hearing on his PCR petition, but simply stated, this was a case where defendant and his attorney were facing insurmountable proof of his guilt. Defendant's dissatisfaction with the result of the trial and his attorney's efforts is not proof of ineffective assistance in his defense.
In State v. Arthur, 184 N.J. 307 (2005), the Court stated: "In determining whether defense counsel's alleged deficient performance prejudiced the defense, '[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.'" Id. at 319 (alteration in original) (quoting Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697). The Court reconfirmed that "[a] reasonable probability" of a different result under the Strickland test "is a probability sufficient to undermine confidence in the outcome." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Here, defendant's claims do not undermine our confidence in the outcome of his trial. We agree with the trial court's conclusion that defendant simply lacked a credible defense in the face of compelling evidence of his guilt.
Additionally, the trial court did not err in reaching that conclusion without holding an evidentiary hearing. An evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined. See State v. Porter, 216 N.J. 343, 354-55 (2013); State v. Preciose, 129 N.J. 451, 462 (1992). The trial court has discretion to decide the PCR petition on the basis of the papers submitted and the arguments of counsel "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . ." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); accord Preciose, supra, 129 N.J. at 462. In this case, the trial court did not abuse its discretion in proceeding without an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION