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

NOT FOR PUBLICATION WITHOUT THE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-0975-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH BODDIE,
Defendant-Appellant.
_____________________________
Submitted March 1, 2018 – Decided August 15, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
07-02-0168.
Joseph E. Krakora, Public Defender, attorney
for appellant (William P. Welaj, 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 Kenneth Boddie appeals from the July 6, 2016 Law
Division order, which denied his first petition for post-
conviction relief (PCR) without an evidentiary hearing. On appeal,
defendant raises the following contentions:
POINT I:
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.
A.[1] THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO PURSUE AN ALIBI
DEFENSE.
B. TRIAL COUNSEL DID NOT ADEQUATELY
REPRESENT THE DEFENDANT ARISING OUT
OF HIS FAILURE TO THOROUGHLY DISCUSS
WITH HIS CLIENT ALL RELEVANT
RAMIFICATIONS ASSOCIATED WITH THE
DECISION WHETHER OR NOT TO TESTIFY,
AS A RESULT OF WHICH HE DID NOT
TESTIFY IN HIS OWN DEFENSE.
We have considered defendant's contention that trial counsel
failed to thoroughly discuss with him all relevant ramifications
associated with the decision whether or not to testify in light
of the record and applicable legal principles and conclude it is
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). The extensive colloquy between the
trial court, trial counsel, and defendant belies defendant's claim
1
We have consolidated parts A and B of defendant's argument for
clarity.
2 A-0975-16T2
that his decision not to testify was uninformed. See State v.
Ball, 381 N.J. Super. 545, 556-57 (App. Div. 2005) (holding that
regardless of whether the defendant was advised by his counsel,
the trial judge's explanation of defendant's right to testify and
of the consequences of his choice defeats an ineffective assistance
of counsel claim and cures any alleged deficiency in counsel's
performance). However, we reverse and remand for an evidentiary
hearing on defendant's contention that trial counsel failed to
present an alibi defense for the reasons that follow.
We incorporate herein the facts set forth in State v. Boddie,
No. A-1731-10 (App. Div. July 15, 2013), wherein we affirmed
defendant's 2010 convictions for aggravated manslaughter and
related weapons offenses, as well as his aggregate seventeen-year
prison sentence, subject to the parole ineligibility requirements
of the No Early Release Act, N.J.S.A. 2C:43-7.2.2 The convictions
followed a jury trial and stemmed from defendant and a co-defendant
exchanging words with the victim during a street encounter that
resulted in the victim being fatally shot shortly before midnight
2
Our Supreme Court denied defendant's petition for certification.
State v. Boddie, 217 N.J. 295 (2014).
3 A-0975-16T2
on September 16, 2006. The State's theory was that the co-
defendant was the shooter and defendant was a co-conspirator.3
The trial proofs showed that defendant and the co-defendant
approached the victim in a vehicle driven by the co-defendant
while the victim was engaged in a conversation with two women,
both of whom knew both defendants and later identified them as the
occupants of the car from which the gunshots were fired. The car
had been rented to the co-defendant in exchange for drugs, and was
later found abandoned several blocks from the crime scene with
empty shell casings and a projectile in the rear. Defendant and
the co-defendant were later apprehended out of state, and there
was evidence that defendant had called both women and told them
not to say anything.
In support of the present PCR petition, defendant certified
that "[f]rom the very outset," he "informed [his] trial
attorney . . . that [he] was home when this shooting took place
and that both [his] sister and father could substantiate that
alibi." According to defendant, on the night of the shooting, he
arrived home "prior to 10:00 p.m.[,] . . . had dinner with [his]
sister, took a shower, and then watched television with [his]
father before going to sleep." However, defendant asserted, trial
3
In the joint trial, the co-defendant was found guilty of murder
and related weapons offenses.
4 A-0975-16T2
counsel failed to interview or present his sister or father to
substantiate his alibi.
In a supporting certification, defendant's sister confirmed
that defendant "arrived home on September 16, 2006, . . . [at]
approximately 9:00 p.m.," after which they "ate dinner together[,]
and then he watched television all night." According to
defendant's sister, "[n]obody came to interview [her] on [her]
brother's behalf," but "had [she] been asked, [she] would have
gladly testified at trial as to [her] brother's whereabouts" on
the night in question.
Similarly, defendant's father certified that at the time of
the shooting, defendant was at home, having arrived at
"approximately 8:30 p.m." According to defendant's father, they
"watched television together for most of the night," and defendant
"did not leave the house at all that night." Defendant's father
asserted that "[n]obody came to interview [him] on [his] son's
behalf," but "had [he] been asked, [he] would have gladly testified
at trial as to [his] son's whereabouts."
On July 6, 2016, following oral argument, the PCR court denied
defendant's petition in an oral decision without conducting an
evidentiary hearing. The court found defendant's claim that he
had told his trial counsel about his alibi witnesses "extremely
improbable," and the court inferred from trial counsel not
5 A-0975-16T2
presenting an alibi defense that "it wasn't there to present."
The court pointed out that "[defendant] and his attorney were
present [in court] when the co-defendant . . . and his attorney
addressed [an] alibi defense" that the co-defendant "had timely
interposed" but later withdrew. The court speculated that
defendant conferred with his co-defendant and jointly agreed not
"to call the alibi witness[es] . . . and let the State prove its
case."
The court rejected defendant's "suggest[ion] that he was too
intimidated by his lawyer to have done anything and spoken up,"
noting that defendant was not "a newcomer to the system who had
never interacted with lawyers before," having "had one previous
felony conviction" and "at least two juvenile adjudications." The
court could not imagine that, given defendant's sentencing
exposure, if "he actually had alibi witnesses available,
that . . . he wouldn't have made noise about that every step of
the way."
The court also rejected the supporting certifications of
defendant's sister and father, noting "they offer[ed] no evidence
whatsoever to corroborate the self-serving [years-after-the-fact]
assertion that they were available as alibi witnesses." The court
found that "[t]he very wording of the certifications" belied the
content because the court could not
6 A-0975-16T2
imagine that a parent or a sibling of someone
who they [knew] to be falsely accused because
they were with them at the time, could have
not knocked down every door, and [gotten]
copies of letters and cable messages, and
anything else that they would have done to
make sure that it was known that they were
witnesses to the defendant's absolute
innocence.
The court speculated that even assuming there was an alibi
defense, it did not "know to what extent there may have
been . . . a tactical rejection of the notion of calling
[defendant's father], a twice convicted felon, . . . as a
witness . . . to such a claim." Nonetheless, the court concluded
that based on the timing, defendant's claim was not credible where
neither defendant, "nor his father, [n]or his sister ever made
some appropriate noise" about the existence of "this alibi
defense . . . either at the time before trial, the eve of trial,
or even at the time that the appeal was filed." This appeal
followed.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). Rather, trial courts should
grant evidentiary hearings only if the defendant has presented a
prima facie claim of ineffective assistance of counsel, material
issues of disputed fact lie outside the record, and resolution of
the issues necessitate a hearing. R. 3:22-10(b); State v. Porter,
7 A-0975-16T2
216 N.J. 343, 355 (2013). However, a defendant is not entitled
to an evidentiary hearing when his or her claims are "too vague,
conclusory, or speculative." Porter, 216 N.J. at 355 (quoting
State v. Marshall, 148 N.J. 89, 158 (1997)).
"Rule 3:22-10 recognizes judicial discretion to conduct such
hearings." State v. Preciose, 129 N.J. 451, 462 (1992). Thus,
we review a trial court's decision to grant or deny a defendant's
request for a hearing under an abuse of discretion standard. State
v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000). A PCR court
deciding whether to grant an evidentiary hearing "should view the
facts in the light most favorable to a defendant to determine
whether a defendant has established a prima facie claim."
Preciose, 129 N.J. at 463. To establish a prima facie claim of
ineffective assistance of counsel, the defendant is obliged to
show not only the particular manner in which counsel's performance
was deficient, but also that the deficiency prejudiced his right
to a fair trial. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Fritz, 105 N.J. 42, 60-61 (1987).
An ineffective assistance of counsel claim may be established
when counsel fails to adequately conduct a pre-trial
investigation. Porter, 216 N.J. at 352. Counsel has a duty to
"conduct a prompt investigation of the circumstances of the
case . . . relevant to [the defendant's] guilt and degree of guilt
8 A-0975-16T2
or penalty." Id. at 353 (quoting Russo, 333 N.J. Super. at 139).
Accordingly, "[f]ailure to investigate an alibi defense is a
serious deficiency that can result in the reversal of a conviction"
because of the great potential for creating reasonable doubt as
to a defendant's guilt in the minds of the jury. Ibid.
If a defendant claims his counsel inadequately investigated
an alibi defense, he or she "must assert the facts that an
investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant."
Ibid. (quoting Cummings, 321 N.J. Super. at 170). The testimony
of an alibi witness does not have to be free of credibility issues;
it must simply have the ability to bolster the defense or refute
the State's position if believed by the jury. State v. Pierre,
223 N.J. 560, 586-88 (2015). If there is a reasonable probability
that the testimony of a witness who was not presented at trial or
properly investigated by counsel could alter the outcome of the
trial, a court should find that "counsel's errors were sufficiently
serious so as to undermine confidence that defendant's trial was
fair, and that the jury properly convicted him." Id. at 588.
The testimony of an alibi witness, when supported by the
witness's affidavit or certification, should not be dismissed as
not credible without an evidentiary hearing. See State v. Jones,
219 N.J. 298, 314 (2014) ("Although the timing and motivation of
9 A-0975-16T2
[the alibi witness'] statement and her reason for not voluntarily
appearing to testify as apparently had been expected raise
important questions, those questions cannot be assessed and
resolved without determining credibility."); Porter, 216 N.J. at
356 ("The court's findings regarding defendant's and his
girlfriend's credibility, based only on their affidavits, was an
improper approach to deciding this PCR claim and effectively denied
defendant an opportunity to establish ineffective assistance of
trial counsel."). Thus, "[e]ven a suspicious or questionable
affidavit supporting a PCR petition 'must be tested for credibility
and cannot be summarily rejected.'" Porter, 216 N.J. at 355
(quoting State v. Allen, 398 N.J. Super. 247, 258 (App. Div.
2008)).
Here, 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
10 A-0975-16T2
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.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
11 A-0975-16T2