STATE OF NEW JERSEY VS. KENNETH BODDIE (07-02-0168, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0146-19
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KENNETH BODDIE,
Defendant-Respondent.
__________________________
Submitted January 25, 2021 – Decided February 9, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 07-02-0168.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from a June 25, 2019 order denying his petition for
post-conviction relief (PCR). Judge Joseph A. Portelli conducted an evidentiary
hearing, entered the order under review, and rendered a thorough and
comprehensive oral opinion in which he made significant findings and
conclusions of law.
The order under review comes to us after we remanded in part for a PCR
evidentiary hearing. See State v. Boddie, No. A-0975-16 (App. Div. Aug. 15,
2018). We did so because an earlier PCR judge made credibility findings
without first conducting a hearing. Boddie, slip op. at 3. Specifically, as to
those findings, we stated:
the PCR court found defendant's claims that his trial
counsel failed to investigate his alibi defense lacked
credibility, in part, because of the timing of the claims.
However, "[a]ssessment of credibility is the kind of
determination 'best made through an evidentiary
proceeding with all its explorative benefits, including
the truth-revealing power which the opportunity to
cross-examine bestows.'" Id. at 347 (quoting State v.
Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)).
Because the PCR court incorrectly made credibility
determinations without first conducting an evidentiary
hearing, we are constrained to reverse and remand for
an evidentiary hearing on defendant's claim that trial
counsel rendered ineffective assistance by failing to
investigate and call defendant's father and sister as alibi
witnesses. On remand, defendant must satisfy both
prongs of the Strickland test.
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[Boddie, slip op. at 10-11.]
On appeal, and after the hearing, defendant argues:
THE DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE TRIAL COUNSEL FAILED
TO PURSUE AN ALIBI DEFENSE.
We affirm substantially for the reasons given by the judge and add these brief
remarks.
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. The defendant must rebut the "strong
presumption that counsel's conduct [fell] within the wide range of reasonable
professional assistance[.]" Id. at 689. Thus, this court must consider whether
counsel's performance fell below an object standard of reasonableness. Id. at
688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
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whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58.
The evidentiary hearing took two days, at which the judge heard testimony
from defendant's trial counsel, defendant's sister, defendant's father, and
defendant. The judge found—contrary to defendant's position—that no one had
ever told trial counsel there was an alibi defense. The judge concluded that
defendant failed to satisfy either prong of Strickland.
As to the first prong, the judge concluded trial counsel's performance did
not fall below an objective standard of reasonableness. He made that conclusion
in large part based on his credibility findings. The judge found trial counsel to
be competent, capable, and credible. Had he been informed "there were alibi
witnesses, he would have at least interviewed them." And as to the witnesses
called by defendant, the judge "d[id] not believe" the sister and father, who never
spoke up at the trial about the purported defense even though they attended every
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day, and that their testimony was inconsistent. As to defendant, the judge
considered defendant's prior record and made similar findings.
As to prong two, the error must have more than some "conceivable effect
on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App.
Div. 2001).
The judge found that "there is more than a reasonable probability that the
outcome of [the] trial would not have been different." Defendant therefore did
not satisfy prong two.
We apply a deferential standard of review to an appeal of a denial of a
PCR petition following an evidentiary hearing. State v. Pierre, 223 N.J. 560,
576 (2015) (quoting Nash, 212 N.J. at 540). The factual findings made by a
PCR judge will be accepted if they are based on "sufficient credible evidence in
the record." Ibid. (quoting Nash, 212 N.J. at 540). The record here contains
sufficient credible evidence to support the judge's findings.
Affirmed.
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