STATE OF NEW JERSEY v. KEVIN BOONE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0191-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN BOONE,
a/k/a KEVIN N. BOONE,
Defendant-Appellant.
________________________
Submitted September 16, 2021 – Decided September 29, 2021
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 13-04-0518.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Patrick L. Harty, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Kevin Boone appeals from a July 26, 2019 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
Defendant was indicted on first-degree murder, N.J.S.A. 2C:11-3(a),
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a), and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b),
in connection with the 2012 shooting death of David Lewis. In 2015, defendant
pled guilty, under a separate indictment, to a violation of probation relating to a
prior two-year probationary sentence he received for a guilty plea to third-degree
eluding. On the same date, he also pled guilty to third-degree aggravated
manslaughter under the first indictment. In September 2015, defendant was
terminated from probation, and sentenced on both indictments to an aggregate
term of twenty years in state prison, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2.
By way of background, Lewis was gambling in an alleyway near a
residence on East Paul Avenue in Trenton when he was shot and killed. The
investigation was led by Trenton Police Detective Brian Jones. Jones received
information from Detective Ryan Woodhead that a confidential informant
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identified the shooter as "Quay". Defendant's mother also identified Quay as
defendant's best friend.
An eyewitness identified the individuals gambling in the alley as Quay,
defendant, and another male. The witness heard Quay tell defendant to "get a
gun" and later discovered Lewis shot. A second witness, who was playing dice
with Quay, heard him arguing with someone and heard shots, ran out of the
alley, and got into a car Quay was driving. A third witness also heard the shots
and saw people running from the alley, including defendant.
Jones interviewed another witness, David Wesley. Prior to doing so,
Jones read Wesley his Miranda1 rights and explained the definition of coercion
to confirm Wesley understood his rights. Wesley confirmed he understood his
rights and signed the Miranda waiver form. Wesley then stated he saw defendant
shoot Lewis several times. Wesley and defendant got into Quay's car and
Wesley heard defendant confess to shooting Lewis.
Before entering his plea, defendant filed a motion to suppress his
statement to police relating to the Lewis shooting. The following facts were
adduced at the suppression hearing at which Jones testified. The same day
detectives interviewed Wesley, they located defendant and brought him to the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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police department for an interview. Prior to the interview, Jones inquired about
defendant's level of education. Defendant stated he had a ninth-grade education,
was "in special education" and could read "a little bit." Jones then read the
Trenton Police Department Miranda Rights Form to defendant. Defendant
confirmed he understood his rights, and Jones then read the waiver of rights
portion of the form and explained the meaning of coercion. Defendant stated he
understood the definition and his rights and signed the waiver form.
Detectives did not inform defendant he was a suspect in the homicide.
During the interview, defendant denied shooting Lewis but placed himself at the
scene of the shooting. He then asked for an attorney and the interview ended.
The motion judge issued a thirteen-page written opinion denying the
motion. The judge found Jones credible. The judge determined defendant
received a proper Miranda warning because he asked Jones to read it to him,
confirmed he understood his rights and the waiver form, and signed the waiver.
The judge distinguished defendant's case from State v. A.G.D., 178 N.J. 56
(2003) and State v. Nyhammer, 197 N.J. 383 (2009), noting "no criminal
complaint or arrest warrant was issued against [d]efendant" at the time of his
interview. The judge concluded because "[d]efendant was merely a suspect . . .
detectives were not required to reveal to him their suspicions . . . ."
A-0191-19
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Applying the factors set forth in State v. Presha, 163 N.J. 304, 313 (2000),
the trial judge concluded defendant's Miranda waiver was voluntary and
uncoerced. The judge found as follows:
At the time of his interview on July 24, 2012[,]
[d]efendant was [nineteen] and a half years old since he
was born on January 7, 1992. Defendant informed the
detectives he had a ninth-grade education and had
attended "special education" classes, offering he had
trouble reading. However, in spite of any educational
limitations [d]efendant may have, he was able to have
a responsive and intelligent conversation with the
detectives. Defendant's answers to the detectives'
questions shows he has the intellectual capacity to
understand his rights, and make a waiver. In addition
to his involvement with this current matter, [d]efendant
had extensive experience with the criminal justice
system for someone of his age. Defendant had one prior
juvenile arrest, and had been arrested twice as an adult
prior to this interview. Defendant was no neophyte to
the criminal justice system leading this court to find
[d]efendant understood the detectives wanted to take
statements to be used against him at trial.
The court finds the detectives' questioning of
[d]efendant at the police station for approximately one
hour and [thirty-five] minutes from approximately 2:48
p.m. to 4:33 p.m. was not prolonged in nature and
certainly did not involve any "physical punishment or
mental exhaustion." Defendant was allowed to have a
beverage, provided cigarettes, allowed to make a
telephone call to his mother and girlfriend . . . .
....
A-0191-19
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Examining the remainder of the [Presha] factors,
and reviewing . . . the DVD of [d]efendant's interview,
and considering [d]efendant's ability to have an
intelligent and responsive conversation with the
detectives, this court does not find [d]efendant was so
mentally limited to prevent him from making a valid
waiver.
....
This court does not find any coercive techniques
were used, and does not believe the [d]efendant's
waiver was the product of coercion. All three
detectives who questioned [d]efendant were polite and
accommodating to [d]efendant. Defendant was
provided a beverage and cigarettes, and his request to
speak with his mother and girlfriend was honored.
In 2018, defendant filed a PCR petition and certification alleging trial
counsel was ineffective
for failing to investigate and confirm that the State's
main witness . . . Wesley was willing to state that he
was coerced by the police into saying that [defendant]
was the shooter. [Defendant] gave this information to
his trial attorney and she failed to investigate and obtain
a statement from . . . Wesley. Had trial counsel
obtained that information, [defendant] certified that he
would not have entered a guilty plea but would have
proceeded to trial or obtained a more favorable plea
bargain from the State.
. . . Additionally, trial counsel was ineffective for
failing to distinguish . . . Nyhammer in the motion to
suppress [defendant]'s statement to the police. Had trial
counsel done so, [defendant]'s statement would have
been suppressed. Had the statement been suppressed,
A-0191-19
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[defendant] certified that he would not have entered a
guilty plea but would have proceeded to trial or
obtained a more favorable plea bargain from the State.
Following oral argument, Judge Robert Bingham, II issued a
comprehensive twenty-page written decision denying the PCR petition. He
found defendant failed to overcome the presumption trial counsel's decision not
to call Wesley was sound trial strategy and lacked a certification from Wesley
stating he was coerced. The judge found the assertions in defendant's
certification were disproved by the evidence in the record. He stated:
Even if trial counsel had, in fact, obtained a statement
from Wesley, defendant's assertion that he would not
have entered a guilty plea would still rely on the
assumption that (l) Wesley was in fact coerced and (2)
would have given a statement to that effect. . . . But
during his interview with . . . Jones, Wesley seemed to
understand the meaning of coercion after Jones
explained the term to him. He then signed the waiver
and gave a statement, which undermine defendant's
assertion that Wesley would have stated he was
coerced. Furthermore, defendant's argument relies on
mere speculation that the investigation of Wesley's
statement to police would have resulted in a more
favorable plea bargain from the State. This theory
appears to disregard other witness statements and
defendant's own statement to police.
The judge concluded defendant's contentions were conjectural, "bald
assertions", and failed to establish an ineffective assistance of counsel.
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Strickland v. Washington, 466 U.S. 668, 693 (1984); see State v. Fritz, 105 N.J.
42 (1987).
The judge also rejected defendant's argument his trial counsel was
ineffective for failing to distinguish Nyhammer because defendant was not
subject to a criminal complaint or arrest warrant and therefore police were not
required to advise him that he was a suspect. The judge noted when detectives
were interviewing defendant "[t]he State was still in the investigatory stage, as
the evidence shows several witnesses had identified several individuals at the
crime scene. Also, defendant having been read and having waived his Miranda
rights, was aware what he said could be used against him." He concluded
defendant did not show that if counsel had distinguished Nyhammer it would
have led to suppression of his statement, a more favorable plea bargain, "or that
[he would have] proceed[ed] to trial rather than entering a guilty plea."
Citing the motion judge's findings, Judge Bingham rejected defendant's
argument that his level of education rendered the Miranda waiver invalid. He
added the following:
Defendant's limited education does not prevent his
ability to give a knowing, intelligent, and voluntary
waiver of his Miranda rights. A defendant's education
level or intelligence is only one factor in determining
whether there was a valid waiver of Miranda rights.
Nor does involvement in special education or even mild
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"[cognitively disabled]" automatically render a waiver
invalid. State v. Carpenter, 268 N.J. Super. 378, 385
(App. Div. 1993). In Carpenter, the defendant had the
mental capacity of a ten-year old child and a forensic
psychiatrist testified that he was competent to stand
trial but did not have the mental sophistication to
understand Miranda warnings unless explained to him
and broken down. Id. at 381-82. Nonetheless, the trial
court properly found when looking at . . . all of the
factors, that defendant knowingly and intelligently
waived his Miranda rights. Id. at 386.
Defendant raises the following arguments on appeal:
POINT ONE — THE PCR COURT ERRED IN
DENYING [DEFENDANT'S] PETITION FOR POST-
CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING AS TESTIMONY IS
NEEDED FROM PRIOR COUNSEL EXPLAINING
WHY SHE FAILED TO CONTACT AND
INTERVIEW DAVID WESLEY, AS HE WOULD
HAVE ADMITTED HE WAS COERCED BY POLICE
TO SAY [DEFENDANT] WAS THE SHOOTER.
POINT TWO — THE PCR COURT ERRED IN
DENYING [DEFENDANT'S] PETITION FOR POST-
CONVICTION RELIEF AS TESTIMONY IS
NEEDED FROM PRIOR COUNSEL TO EXPLAIN
WHY SHE FAILED TO DISTINGUISH . . .
NYHAMMER, . . . IN ARGUING FOR THE
SUPPRESSION OF [DEFENDANT'S] STATEMENT
TO POLICE.
We review a judge's denial of PCR without an evidentiary hearing de
novo. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (citing State
v. Harris, 181 N.J. 391, 421 (2004)). To reverse a conviction based on
A-0191-19
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ineffective assistance of counsel, a defendant must demonstrate both: (1)
"counsel's performance was deficient" and (2) counsel's "errors were so serious
as to deprive the defendant of a fair trial . . . ." Strickland, 466 U.S. at 687; see
Fritz, 105 N.J. at 58 (adopting the Strickland two-part test). Under the first
prong, counsel's representation must be objectively unreasonable. State v.
Pierre, 223 N.J. 560, 578 (2015). Under the second prong, a "reasonable
probability [must exist] that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 583 (quoting Strickland,
466 U.S. at 694).
The PCR court has discretion to determine whether a hearing is necessary
to aid in its analysis. State v. Marshall, 148 N.J. 89, 157-58 (1997). If the court
decides a defendant's allegations "are too vague, conclusory, or speculative to
warrant an evidentiary hearing . . . then an evidentiary hearing need not be
granted." Ibid. (citing State v. Preciose, 129 N.J. 451, 462-64 (1992)). "[A]
petitioner must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient to demonstrate
counsel's alleged substandard performance . . . [and] assert the facts that an
investigation would have revealed . . . ." State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999).
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Prejudice is not presumed. Fritz, 105 N.J. at 52. This is because there is
a strong presumption trial counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690.
Having thoroughly reviewed the record pursuant to these principles, we
affirm for the reasons set forth in Judge Bingham's opinion. The record does
not establish a prima facie showing of ineffective assistance of counsel to grant
either an evidentiary hearing or post-conviction relief.
Affirmed.
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