                                NOT FOR PUBLICATION WITHOUT THE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-3021-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BROOKS G. HARRIS,

     Defendant-Appellant.
___________________________

                   Argued telephonically October 24, 2019 –
                   Decided November 27, 2019

                   Before Judges Sabatino, Sumners and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Salem County, Indictment No. 09-07-0422.

                   Lee March Grayson, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Lee March Grayson, on the briefs).

                   Jennifer E. Kmieciak, Deputy Attorney General, argued
                   the cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Jennifer E. Kmieciak, of counsel and
                   on the briefs).

PER CURIAM
      Defendant Brooks Harris was convicted of murder and other offenses after

a 2010 jury trial. He appeals the trial court's October 30, 2017 order denying

his petition for post-conviction relief ("PCR") without an evidentiary hearing.

He argues that both his trial attorney and his counsel on direct appeal were

constitutionally ineffective in numerous respects.         He contends that his

conviction should be set aside for a new trial, or, at the very least, the matter

should be remanded for an evidentiary hearing on multiple issues.

      For the reasons that follow, we affirm the trial court's denial of defendant's

petition in all but one respect. We remand this matter for the sole purpose of

the trial court conducting an evidentiary hearing, consistent with the Supreme

Court's recent opinion in State v. L.H., 239 N.J. 22 (2019), and other case law,

to evaluate the voluntariness of defendant's incriminating statements to the

police.

      As we will discuss, defendant's trial attorney should have requested a Rule

104 hearing on the statements' admissibility before they were presented to the

jury. Defendant has raised serious concerns about alleged events occurring

during the interval between his first and second recorded police interrogations

that, along with certain statements by police during the recorded interrogations,




                                                                            A-3021-17T3
                                         2
make out a prima facie (but rebuttable) case of ineffective assistance of counsel

and involuntariness.

        On all other issues, we sustain the PCR judge's decision.

                                         I.

        We incorporate by reference the factual background and procedural

history recited more extensively in our opinion on direct appeal. State v. Harris,

No. A-6202-09 (App. Div. Oct. 15, 2012), certif. denied, 213 N.J. 538 (2013).

We summarize pertinent aspects of that previous history here, and also update

the record to include the PCR proceedings.

        The State's proofs at the April 2010 trial established to the jury that

defendant conspired with Jerry Loatman to kill Jeremy Huff, with whom

defendant's wife was in a relationship. Harris, slip op. at 2. On the evening of

August 13, 2008, or early the next morning, Loatman and Lee Williams attacked

Huff in his home and stabbed him repeatedly. Ibid. Huff died during emergency

surgery.

        Defendant's Wife's Testimony

        In May 2008, defendant's wife, Brenda Harris, began an affair with Huff,

a neighbor and friend of defendant. In June 2008, Brenda1 decided to separate


1
    We use Brenda Harris's first name for clarity, intending no disrespect.
                                                                              A-3021-17T3
                                         3
from defendant and moved out of their joint residence. Brenda testified at trial

that defendant began telling her they "ha[d] to stay together for the kids" and

called her "non-stop." According to her testimony, when she told defendant

about her relationship with Huff, defendant "reacted very bad, violently."

      On July 4, 2008, Brenda was at Huff's home when defendant showed up

"banging on the windows." Huff called 9-1-1 and went outside, where the men

had a physical altercation. State Trooper Mark Manzo arrived at the residence

and observed defendant "standing outside," "shirtless, covered in mud" with

scrapes and bruises on him. The trooper later observed Huff in a similar

condition. Following this incident, Brenda testified that defendant told her he

was going to kill Huff and would "rather talk to [his] kids in jail than to let [her]

be with him."

      Loatman's Testimony

      Loatman testified as a prosecution witness at the trial. He recounted that

a few weeks before Huff's murder, defendant told him "he wanted . . . Huff killed

because he was messing around with his wife." Loatman had known defendant

for approximately one year at that point from working at a tire shop. Defendant

was a former employee of the tire shop. Loatman was seventeen years old at the

time of Huff's murder, and defendant was age twenty-eight.


                                                                             A-3021-17T3
                                         4
      Loatman testified that defendant planned to pay him $5,000 2 for killing

Huff. Between July 28 and August 14, 2008, defendant placed 125 calls to

Loatman, and they had approximately ten to fifteen phone conversations about

killing Huff. They also had five in-person conversations outside of Loatman's

residence. At some point, Loatman recruited Williams, who was seventeen or

eighteen at the time, to participate in the murder as well.

      On the morning of August 13, 2008, defendant called Loatman and told

him that he wanted Huff killed that night. Defendant was going on vacation

with his children the next day, and he did not want his wife alone with Huff.

Loatman testified that they discussed Loatman procuring a gun to shoot Huff.

      That evening, defendant picked up Loatman and Williams at Loatman's

residence and drove them to Huff's residence. The fingerprints of both Loatman

and Williams were later identified on defendant's truck. On the way, Loatman

told defendant he had been unable to get a gun. The three men decided that

Loatman and Williams would use knives to kill Huff.




2
   There is a discrepancy as to whether the amount was $5,000 or $500. Loatman
testified that defendant was going to pay him and Williams $5,000, but
defendant told the police he was going to pay them $500. On direct appeal, we
noted that the discrepancy did not affect our analysis. Harris, slip op. at 9 n.8.
It also does not affect the PCR issues before us.
                                                                          A-3021-17T3
                                        5
        According to Loatman, defendant instructed Williams and him on how to

approach Huff's residence, and on what to do after the murder was complete.

He told them to walk along a guardrail to avoid a motion-activated light, and to

enter the home through a window with an air conditioner. Defendant reportedly

instructed Loatman and Williams to wait thirty-to-forty minutes before entering

the home in order to allow him time to travel to a bar and be seen on camera for

an alibi.3 Defendant told them that Huff would likely be in his bedroom, which

was the second door on the left, and that they should take his wallet, phone and

keys from the entertainment center and leave the scene in Huff's truck.

Defendant also instructed them to contact him when the job was done.

        As described by Loatman, defendant dropped Loatman and Williams off

a short distance from Huff's residence, and gave them one pair of gloves to avoid

leaving fingerprints. He also gave them $50 as a "downpayment" for the murder,

with a promise that the rest of the money would follow.

        Loatman and Williams approached the residence, waited for about thirty

minutes, and then attempted to enter. They were unable to climb through the

window with the air conditioner, so Williams climbed through a different

window and let Loatman in through the front door. When he opened the door,


3
    Surveillance footage of defendant at a bar was played for the jury at trial.
                                                                            A-3021-17T3
                                          6
Williams had two knives, one of which he gave to Loatman, and a pair of gloves

he found under the deck of Huff's house.

      The two men found Huff sleeping in his bedroom. As they stood over him

"debating on who was going to stab [him]," Huff woke up and said "don't do

this, Brooks." Loatman then "hopped on [Huff] and started stabbing him" in

"[h]is head, his neck, [and] his back." Huff struggled to his feet, but was thrown

to the ground. Williams joined in the stabbing, and Huff eventually stopped

resisting.

      Believing Huff to be dead, Loatman and Williams took his car keys,

phone, and wallet and drove away in Huff's truck. Investigators later found

blood matching Huff's DNA in Huff's truck and on Loatman's underwear.

      After leaving in Huff's truck, Loatman sent defendant a text message

stating that "the job was done," to which defendant responded asking if Loatman

was all right. Loatman and Williams abandoned Huff's truck behind a home in

Salem City, "threw the gloves and keys over a wooden fence," and went to

Williams's residence to clean up. Before splitting up, they stopped at a Chinese

restaurant to evenly split the money defendant had given them.




                                                                          A-3021-17T3
                                        7
         Huff's Medical Condition and Demise

         Huff survived the attack and called 9-1-1. Detective Thomas Daltwas of

the New Jersey State Police was one of the first responders, and he testified at

trial.    Upon entering Huff's residence, Detective Daltwas observed blood

"smeared along the wall" and "fecal matter at the front door." He found Huff

"slumped over the toilet in the bathroom." Huff had "sustained numerous

stabbings," was "in and out of consciousness," "was bleeding," and "had fecal

matter all over the front of his body." Daltwas asked if Huff knew who had done

this to him, to which Huff gave defendant's name.

         A paramedic responded to the scene and also testified at trial. He stated

Huff was "coated in blood, pale, diaphoretic" and had "common . . . signs of

shock." Before performing a medical procedure that would incapacitate Huff,

the paramedic asked Huff who had done this to him. Huff again gave defendant's

name. Huff was airlifted to a hospital, but died during emergency surgery at

4:31 a.m. on August 14, 2008. An autopsy revealed that Huff had suffered

thirty-eight "sharp injuries," including both stab wounds and incised wounds.




                                                                          A-3021-17T3
                                         8
         The Police Interrogation of Defendant

         Within hours of the attack on Huff, defendant voluntarily accompanied

officers to the police station.      Defendant signed a Miranda 4 waiver card.

Detectives Robert Gates and Glenn Garrels conducted a recorded interview.

         Defendant initially denied any involvement in the stabbing, noting that he

had been at the Oakwood Inn in Elsinboro from 11:00 p.m. to 1:30 a.m.

Eventually, defendant stated he had hired "two kids" from Salem to "lump [Huff]

up." He identified one of the kids as Jarrod, whom he knew from work. He

admitted to dropping them off near Huff's residence, paying them $50, and

promising another "couple hundred [dollars] as [he] got it." The first recorded

interview then ended, and the recording did not resume until about half an hour

later.

         After the break, defendant admitted to police that he had told "Jerry" that

he wanted Huff dead, speaking with Jerry on five-to-ten occasions over several

weeks, and promising $500 to kill Huff. He also discussed speaking with Jerry

over the phone about getting a gun to kill Huff, picking Jerry and his friend up

and bringing them to Huff's house, and the decision to use knives to kill Huff.

Defendant further told detectives in the second interview the plan was for Jerry


4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            A-3021-17T3
                                          9
and his friend to take Huff's car after the killing. Defendant said he got a text

message from Jerry sometime after midnight, saying "it's done."

      Defendant's Testimony

      Defendant testified at trial in his own defense. He maintained that he paid

Loatman "to beat up" Huff, not to kill him. He testified that he had known Huff

for ten years and described him as a close friend. Defendant admitted to

dropping Loatman and Williams off near Huff's residence, but claimed he

believed they did not have weapons.

      Defendant testified that after his first recorded statement to police they

questioned him in another room. He stated that he learned Huff had died during

that time interval, and he was scared and feared he would not see his children

again. Defendant testified that he made his second recorded statement becau se

his "understanding" with the officers was that if he cooperated and admitted to

wanting Huff murdered, he would be released.

      The Verdict

      The jury found defendant guilty of murder (counts one and two),

conspiracy to commit murder (counts five and six), conspiracy to commit

aggravated assault (count seven), aggravated assault (count eight), burglary

(count fifteen), conspiracy to commit burglary (count sixteen), and theft (count


                                                                         A-3021-17T3
                                      10
twelve). The jury found defendant not guilty of conspiracy to commit robbery

(count nine), robbery (count ten), and conspiracy to commit theft (count eleven).

      On the murder counts, the jury was unable to agree as to the aggravating

factor of whether defendant "procure[d] the commission of the death of Jeremy

Huff by payment or promise of payment of anything of value," also referred to

as the "murder-for-hire" question.

      Sentencing

      On June 1, 2010, defendant was sentenced. Before sentencing defendant,

the trial judge heard and denied defendant's pro se motion to relieve trial

counsel.

      On count one, first-degree murder, the judge sentenced defendant to a

fifty-year prison term, subject to an 85% period of parole ineligibility pursuant

to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and five years of

post-release parole supervision. All the following prison terms were to run

concurrent with this sentence. On count five, conspiracy to commit murder,

defendant was sentenced to a seventeen-year prison term. He was sentenced to

eight-year prison terms on counts fifteen, burglary, and sixteen, conspiracy to

commit burglary.




                                                                         A-3021-17T3
                                      11
      The remaining counts for which defendant was found guilty merged with

other counts for sentencing. In sum, defendant was sentenced to an aggregate

term of fifty years imprisonment with an 85% parole disqualifier and five years

post-release parole supervision.

      PCR Petition and Oral Argument

      On June 5, 2015, defendant filed a PCR petition through private counsel.

The court later permitted defendant's private counsel to withdraw, and new

counsel was assigned.

      On August 18, 2017, a non-evidentiary hearing on defendant's petition

was held. The PCR judge 5 heard oral argument and reserved decision.

      On October 30, 2017, the PCR judge issued an order and twenty-five-page

written decision denying defendant's petition. This appeal followed.

      On appeal, defendant raises the following points for our consideration:

            POINT I

            THE   COURT   ERRED   IN  PROHIBITING
            DEFENDANT FROM TESTIFYING AS TO WHAT
            HE WAS TOLD BY INTERROGATING OFFICERS
            DURING THE PERIOD BETWEEN HIS TWO
            RECORDED STATEMENTS AND IN CHARGING
            THE JURY THAT IT MUST EVALUATE THE
            CREDIBILITY  OF   THOSE   STATEMENTS

5
  The PCR judge was not the judge who presided over the trial seven years
earlier.
                                                                        A-3021-17T3
                                     12
WITHOUT TELLING IT THAT IT MUST ALSO
DETERMINE WHETHER THOSE STATEMENTS
HAD ACTUALLY BEEN MADE.

POINT II

THE TRIAL JUDGE ERRED IN PERMITTING THE
PROSECUTOR TO IMPEACH THE DEFENDANT
BASED ON HIS VIOLATIONS OF PROBATION
(Not Raised Below).

POINT III

THE TRIAL COURT'S CHARGE ON ACCOMPLICE
CULPABILITY WAS INCORRECT SINCE IT DID
NOT COMPLY WITH STATE V. BIELKIEWICZ[,
267 N.J. Super. 520 (App. Div. 1993).] (Not Raised
Below).

POINT IV

THE SENTENCE IMPOSED UNDER N.E.R.A. –
WHICH INCLUDED AN AGGREGATE SENTENCE
OF FIFTY YEARS OF WHICH HE MUST SERVE
85% BEFORE BEING ELIGIBLE FOR PAROLE –
WAS MANIFESTLY EXCESSIVE.

POINT V

REVERSAL IS REQUIRED BECAUSE OF THE
CUMULATIVE EFFECT OF THE ERRORS SET
FORTH IN POINTS I THROUGH III, SUPRA.




                                                     A-3021-17T3
                       13
                                        II.

                                        A.

      Post-conviction relief is our State's "analogue to the federal writ of habeas

corpus." State v. Jones, 219 N.J. 289, 310 (2014). It is "a defendant's last

opportunity to raise a constitutional challenge to the fairness and reliability of a

criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005).

To be eligible for PCR, a defendant "must establish the right to such relief by a

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992).

      Since the PCR proceedings in this case did not involve an evidentiary

hearing, the findings of the PCR judge do not warrant the deference normally

accorded to findings "substantially influenced" by a trial judge's "opportunity to

hear and see the witnesses and to have the 'feel' of the case." State v. Taccetta,

200 N.J. 183, 194 (2009) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Moreover, an appellate court is "not required to give 'deference to the legal

conclusions of the PCR court.'" Id. at 195 (quoting Feaster, 184 N.J. at 278).

We therefore review the PCR judge's decision de novo.




                                                                            A-3021-17T3
                                        14
                                         B.

      All of defendant's PCR arguments allege that his former counsel was

constitutionally ineffective in various respects. We apply well -settled legal

principles to those claims.

      A criminal defendant's right to counsel, under the Sixth Amendment to the

United States Constitution and Article I, paragraph 10 of the New Jersey

Constitution, includes the right to adequate legal advice.            Strickland v.

Washington, 466 U.S. 668, 686 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

To succeed on a claim of ineffective assistance of counsel, a defendant must

satisfy a two-part test.      "First, the defendant must show that counsel's

performance was deficient. This requires a showing that counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "Second, the

defendant must show that the deficient performance prejudiced the defense.

This requires a showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable." Ibid.

      In reviewing such claims of ineffectiveness, courts apply a strong

presumption that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment."


                                                                            A-3021-17T3
                                         15
Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy'

will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, 105

N.J. at 54 (1987) (citation omitted); see also State v. Echols, 199 N.J. 344, 357-

59 (2009).

      Often a PCR court can evaluate claims of attorney ineffectiveness without

the need to conduct an evidentiary hearing. To obtain an evidentiary hearing to

explore such ineffective assistance claims, a defendant must make a prima facie

showing of deficient performance and actual prejudice. Preciose, 129 N.J. at

462-63. "When determining the propriety of conducting an evidentiary hearing,

the PCR court should view the facts in the light most favorable to the defendant."

Jones, 219 N.J. at 311 (citing State v. Marshall, 148 N.J. 89, 158 (1997)); see

also Preciose, 129 N.J. at 462-63.

      With one critical exception, the PCR judge correctly applied these

principles in rejecting defendant's numerous ineffectiveness claims. Aside from

that singular exception, defendant has not established a prima facie case under

the Strickland test, the claims are procedurally barred under the Rules of Court,

or both. We therefore affirm the rejection of those remaining contentions for

the sound reasons articulated in the PCR judge's detailed opinion.




                                                                          A-3021-17T3
                                       16
      We focus our discussion and analysis on the one claim of ineffectiveness

that has potential merit, and which necessitates a remand for a hearing.

                                        C.

      As we previously noted, defendant provided two recorded statements to

the police on the morning of August 14, 2008. His first statement began at 5:22

a.m. At the outset of the first recording, Detective Robert Gates verified that

defendant had been given Miranda warnings at his mother's home. Detective

Gates then reviewed defendant's rights with him again, and verified that

defendant did not have any questions.

      During his first statement, defendant admitted to paying two young men

to "lump up" Huff, apparently signifying that he simply wanted Huff beaten up.

He did not admit in his first statement to asking the young men to kill Huff.

      The first recorded statement ended at 6:43 a.m. At that point, there is an

unrecorded interval of about half an hour.

      The second recorded statement began at 7:12 a.m., after defendant was

again reminded of his Miranda rights. During the second statement, defendant

admitted that he paid Loatman and another person to kill Huff. As he did so,

defendant stated, "I just feel like I'm diggin' the hole deeper, feel like I'm just

gettin' myself in more trouble." Near the end of the second recording, defendant


                                                                           A-3021-17T3
                                        17
agreed that the detectives did not threaten or coerce him, and they had treated

him respectfully.

      Defendant contends that during the interval between the two recorded

interrogations, he was pressured by police to say that he had hired the two young

men to kill Huff. At trial, defendant testified that during the break in the

recording he was interrogated by the detectives in a different room. According

to defendant, the detectives led him to believe that if he admitted to having Huff

killed, he would be released.

      At the beginning of this testimony, the prosecutor objected to defendant's

trial counsel asking what the detectives had told defendant. The following

colloquy took place:

                  THE PROSECUTOR: That's hearsay, Judge.
            The appropriate time to bring that out would be cross-
            examination of the detectives that did the interview.
                  There were no questions asked about that. This
            guy can't, at this point, testify that he (inaudible).

                   THE COURT: He can't testify as to – your
            argument is that he can't testify as to what the officers
            said to him?

                    THE PROSECUTOR; Testify to – yes.

                  DEFENSE COUNSEL: Well, the whole subject
            matter goes to declarations against interest generally,
            Judge.


                                                                          A-3021-17T3
                                       18
      THE COURT: Whose declarations              against
interest?

      DEFENSE COUNSEL: Him.

      THE COURT: Yeah, but he still can't testify as
to what the officers said to him. That doesn't fit any of
the exceptions to the hearsay rule, I don't think.

      DEFENSE COUNSEL: Judge, it appears that
way, however, I think more of a broader interpretation
should be afforded this Defendant.

      THE COURT: Under?

      DEFENSE COUNSEL: Considering that the
statements that occurred and what occurred between
those two statements is all part and parcel of the
interview and the statement process and I think it
should be allowed to be asked.

      THE COURT: Well, you could have asked the
officers what they asked him during that time frame and
you chose not to.

      DEFENSE COUNSEL: (inaudible). I wouldn't
have got the answer I wanted so I wasn't about to ask.

      THE COURT: Well, I'm not going to let – then
I'm not going to let you ask this witness to say what
they said so that you can get the answer that you want.

       DEFENSE COUNSEL: Well, there's going to be
obviously different answers to different things. What
the truth is, is for the jury to decide.

      THE COURT: But not from objectionable
hearsay. I'm going to sustain the objection.

                                                            A-3021-17T3
                          19
      Defendant then went on to testify on direct examination about his

"understanding" with the police before his second recorded statement:

                  Q. Did you believe the State would let you – the
            police would let you go if you cooperated?

            A. Yes.

                  Q. And you feared that you would never see your
            children again?

            A. Yes.

                 Q. Was it your understanding that if you
            cooperated, that you would be released?

            A. Yes.

                  Q. You would be able to see your children?

            A. Yes.

                  Q. Is that why you gave the statement –

            A. Yes.

                  Q. – that you wanted the gentleman killed?

            A. Yes.

                  Q. Is that the truth?

            A. No.

            [(emphasis added)].



                                                                        A-3021-17T3
                                      20
      After this, the prosecution recalled Detective Gates to rebut de fendant's

testimony. In rebuttal, Gates recalled that defendant was brought outside to have

a smoke during the break in the recordings. Gates asserted that he did not say

anything to defendant during the break.         Gates further testified that he

"absolutely" did not suggest to defendant that he would be allowed to leave if

he admitted to killing Huff.

      Both of defendant's police statements were played for the jury at trial.

Notably, the jury requested during their deliberations that defendant's second

statement be replayed. Defendant's counsel requested that the first statement be

played as well, but the judge denied that request. The second statement was

then played for the jury.

      Defendant's argument largely focuses on the break during his recorded

statements to the detectives, during which time he alleges the detectives

interrogated him, without being recorded, in a different room. He contends that

representations of the detectives during this alleged off-the-record interrogation

made his second statement involuntary. As such, he argues that his trial counsel

should have filed a motion to suppress the statement, and the trial court should

thereafter have conducted a Rule 104 hearing as to its voluntariness.




                                                                          A-3021-17T3
                                       21
      The "[v]oluntariness of a confession or other inculpatory statement by an

accused must always be established [by the State] at a N.J.R.E. 104(c) hearing

before it can be introduced into evidence at trial." State v. Scott, 398 N.J. Super.

142, 153 (App. Div. 2006), aff'd o.b., 193 N.J. 227 (2008) (quoting Biunno,

Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 104 (2006)); see also State

v. Miller, 76 N.J. 392, 404-05 (1978).

      N.J.R.E. 104(c) prescribes, in pertinent part:

            (c) Preliminary hearing on admissibility of defendant's
            statements. Where by virtue of any rule of law a judge
            is required in a criminal action to make a preliminary
            determination as to the admissibility of a statement by
            the defendant, the judge shall hear and determine the
            question of its admissibility out of the presence of the
            jury. In such a hearing the rules of evidence shall apply
            and the burden of persuasion as to the admissibility of
            the statement is on the prosecution. If the judge admits
            the statement the jury shall not be informed of the
            finding that the statement is admissible but shall be
            instructed to disregard the statement if it finds that it is
            not credible. If the judge subsequently determines from
            all of the evidence that the statement is not admissible,
            the judge shall take appropriate action.

            [N.J.R.E. 104(c) (emphasis added).]

      In State v. W.B., 205 N.J. 588 (2011), the Supreme Court made clear that:

            the State has the affirmative duty to prove – in New
            Jersey by proof beyond a reasonable doubt . . . both
            that the defendant's statement was voluntary and, if
            custodial, that the defendant was advised of his rights

                                                                            A-3021-17T3
                                         22
              and knowingly, voluntarily and intelligently waived
              them.

              [Id. at 602 n.3 (citations omitted); see also L.H., 239
              N.J. at 27 (setting out the State's burden of proof)].

      Counsel on appeal have stipulated that no Rule 104 hearing ever took

place in this case. On April 13, 2010, the trial judge indicated that he had set

that morning aside for Rule 104 hearings, but there is no discussion in the

transcript about voluntariness issues. Later that day, the prosecutor noted that

he would play the defendant's statements to the jury "once I have [them]

authenticated", and would have a transcript prepared. Again, there was no

request by defense counsel for a Rule 104 hearing.

      Before the jury heard the two recorded statements, the following colloquy

took place:

                    DEFENSE COUNSEL:              Judge, I have no
              objection to the Miranda Card and the rights being
              given and the tape being given.
                    However, my concern goes to the hiatus time, and
              maybe it isn't the appropriate objection at this time and
              maybe I'm jumping way ahead.

                   THE COURT: There was no – well, there was no
              Miranda motion filed in this case; was there?

                    DEFENSE COUNSEL: I'm not – I have no
              problem with that. The rights were in fact given and
              waived. We concede all that.


                                                                          A-3021-17T3
                                        23
       But there is a great time distance between the
time he, that is Mr. Harris, went to police headquarters
and the time of the Miranda rights being given.
       There's a big gap. That may well impact upon the
validity of the tape that was obtained.

       THE COURT: Didn't that require, under our
court rules, prior to pretrial conference and entering the
Pretrial Memorandum, Trial Memorandum, for you to
file a motion if you had any of those objections?
       So that the Court would have taken testimony and
made a ruling as to whether the statement, even though
Miranda warnings were given, was tainted and
therefore inadmissible?

      DEFENSE COUNSEL: I have no objections,
Judge, to what you said and I agree 100 percent. My
arguments will be made to the trooper and to the jury,
which I am certainly permitted to do. I can raise
Miranda issues to the jury at any time.

      THE COURT: I'm not suggesting that you can't.

      DEFENSE COUNSEL: No. Judge, under those
circumstances, I see the way this is going and I'm not
disputing what you say –

      THE COURT: Okay.

      DEFENSE COUNSEL:                  --   under    the
circumstances. This can be played.

       THE COURT: I mean, certainly, you have the
right to argue to the jury time frames, the [police]
tactics, if you would like to speak – so to speak, to the
jury.
       And that they impact on the credibility of the
statement. That's the law, as I understand it. But the

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                           24
            issue as to whether the jury's going to hear it all I would
            think has been decided by the fact that there was no
            Miranda Motion filed and no ruling by the Court.

            [(Emphasis added)].

      The relevant substantive law on this issue is clear. Due process requires

the State "prove beyond a reasonable doubt that a defendant's confession was

voluntary and was not made because the defendant's will was overborne." L.H.,

239 N.J. at 42 (quoting State v. Knight, 183 N.J. 449, 462 (2005)). Courts

determine voluntariness under a "totality of the circumstances" analysis. Ibid.

Relevant factors to the analysis include "'the suspect's age, education and

intelligence, advice concerning constitutional rights, length of detention,

whether the questioning was repeated and prolonged in nature, and whether

physical punishment and mental exhaustion were involved,' as well as previous

encounters with law enforcement." Id. at 43 (quoting State v. Hreha, 217 N.J.

368, 383 (2014)).

      In L.H., the Supreme Court found that a twenty-six-year-old defendant's

statement was not voluntary beyond a reasonable doubt, because "the detectives

overbore [the] defendant's will by false promises of leniency that assured

counseling instead of incarceration, by representations that conflicted with the

Miranda warnings, and by minimization of the gravity of the offenses." Id. at


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                                       25
29.   The defendant in L.H. was arrested at 2:30 a.m., and a three-hour

interrogation began at 5:31 a.m.     Id. at 30.   During the interrogation, the

detectives promised the defendant counseling, indicated he would not go to jail

if he cooperated, and told him "the truth would set him free." Id. at 28.

      In L.H., the Court recognized that "[o]ur jurisprudence even gives officers

leeway to tell some lies during an interrogation," and officers can appeal to a

suspect's "sense of decency" and urge a suspect "to tell the truth for his own

sake." Id. at 26 (citing State v. Galloway, 133 N.J. 631, 655 (1993); Miller, 76

N.J. at 405). However, they found "certain lies . . . may have the capacity to

overbear the suspect's will and to render a confession involuntary." Id. at 27.

An example of such lies "are false promises of leniency that, under the totality

of the circumstances, have the capacity to overbear a suspect's will." Ibid.

      Although the record on voluntariness is not fully developed, this case has

many apparent similarities to L.H. During defendant's first recorded statement,

the detectives repeatedly stated that Huff was not dead and implied he was not

too seriously injured. This is despite the fact that Huff died during emergency

surgery at 4:31 a.m., nearly an hour before the detectives began the recorded

questioning of defendant.




                                                                            A-3021-17T3
                                      26
      At the outset of the first recorded statement, Detective Gates said that

State Troopers talked to Huff at the hospital and he had "some superficial

injuries." The detective implied that Huff may also be in trouble, saying "just

because he's the one in the hospital now doesn't mean he's off the hook for what

happened tonight." The detective also said, "[F]or all we know, you went out

there to talk to [Huff], he fucking' came after you first, you know what I'm

sayin'? Like that's what we, that's what, that's what we need to clear up before

you get fuckin' your ass thrown in the ringer here."

      Further, Detective Garrels stated to defendant that this was not a "serious"

case and that Huff was "at Cooper [Hospital], he's gettin' stitched up, we're not

lookin' at a fuckin' homicide or anything here, it's, it's not a big deal." Garrels

also said "while we're in this room, me and [Detective] Gates, we, we have a, a

lot of discretion of what happens, through the whole investigation. As soon as

we leave here and then you not tellin your side of the story, ha, ha we, we only

have one choice and that's to go with what the victim tells us." Garrels told

defendant that Huff would probably be out of the hospital by the next day and

they would get a statement from him.

      In addition, Detective Gates stated the detectives had discretion while they

were talking with defendant, and were trying to minimize the trouble defendant


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                                       27
faced. Gates also brought up defendant's children often, and emphasized that

defendant just wanted to raise his kids.

      Defendant testified that he found out Huff was dead during the break

between the two interrogations. However, in defendant's second statement, the

following exchange took place, which adds confusion to the record about the

subject:

            Q: But you got, but you, they went there to kill 'em.
            Right? Was that the plan?

            A: No audible response.

            Q: Yes?

            A: Yeah.

            Q: Okay.

            A: I'm glad they didn't.

            [(Emphasis added)].

      If, in fact, the police had misled defendant about whether Huff was still

alive, or failed to correct a misapprehension about his status, defendant might

have worried that Huff would have testified against him at a future trial. Such

a concern might have affected his willingness to be more forthcoming and

cooperative with the police.



                                                                       A-3021-17T3
                                       28
      Beyond these arguably misleading facets of the detectives' questioning

techniques, the timing of the interrogations here might also affect the

voluntariness analysis. Defendant was taken into custody at his mother's home

at some time in the morning after Huff's death. The first recording starts at 5:22

a.m. and the second recording ends at 7:50 a.m. It is unclear if or how much

defendant slept before being detained. He was at a bar the night before, and

apparently went to his mother's home after police responded there and she called

him. Based on defendant's first statement to the detectives, it appears he went

to his mother's home straight from the bar.

      The admission of defendant's incriminating statements arguably could

have affected the jury's verdict. The second recorded statement was a key piece

of evidence in the State's case, because it contained defendant's confession to a

killing and not just a beating. Furthermore, the jury seemed to consider the

second statement carefully, as they requested to hear it again during their

deliberations.

      The PCR judge rejected defendant's ineffectiveness claims concerning the

police interrogation, essentially because the judge regarded trial counsel's

failure to request a Rule 104 hearing to be inconsequential.           The judge




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                                       29
specifically found defendant "had failed to establish that a motion to suppress

his statement[s] would have been successful if filed."

      With all due respect to the PCR judge, this analysis places too heavy a

burden on defendant in order to obtain an evidentiary PCR hearing. All that a

PCR petitioner needs to show to get a hearing is a prima facie case, not a clear

winner. As the Supreme Court stressed in Jones, 219 N.J. at 311, when deciding

whether a defendant is entitled to an evidentiary hearing, the PCR court must

"view the facts in the light most favorable to the defendant." Viewed here

through that prism, we are satisfied defendant had presented such a prima facie

case under the two-part Strickland test.

      As to the first prong of Strickland – requiring deficient performance by

counsel – defendant has presented a strong argument that his trial attorney was

remiss in not requesting a Rule 104 hearing on voluntariness. The case law we

have cited above, including L.H., makes clear that the State has a burden of

establishing, before the jury hears evidence of a defendant's confession, that the

defendant's statement was voluntary. L.H., 239 N.J. at 42. A Rule 104 hearing

would have been the proper setting to develop the record on that critical

requirement. See N.J.R.E. 104(c) (prescribing such hearings).




                                                                          A-3021-17T3
                                       30
      The trial court chastised defendant's trial counsel for not moving to

suppress his client's incriminating statements, which would have enabled the

court to have the pertinent circumstances on voluntariness fleshed out at a

pretrial hearing. In response, defense counsel vaguely suggested he had "no

objections" to the lack of a motion hearing, and that he instead planned to make

arguments of involuntariness to the jury.

      Defense counsel's tactical justification for bypassing a Rule 104 hearing

is not self-evident. Perhaps counsel expected he would lose the Rule 104

hearing and did not want to preview his jury arguments of involuntariness to the

prosecution prematurely. Or perhaps counsel thought his client's account of

alleged police coercion and deception would be more compelling before the jury

if it had not already been dissected at a Rule 104 hearing outside of the jury's

presence. These are certainly possible explanations, but without an evidentiary

hearing – ideally with testimony from trial counsel – they are essentially

supposition.

      Defendant himself was not required to testify at a Rule 104 hearing.

Instead, the detectives might have testified, providing defense counsel with

potential fodder to use on cross-examination at trial. And, even if defendant did




                                                                         A-3021-17T3
                                      31
testify at a Rule 104 hearing, the State's examination of him at a hearing might

have enabled defense counsel to be better prepared for his testimony at trial.

      The State does not refute that holding a Rule 104 hearing before

defendant's incriminating statements were admitted would have been

appropriate. The State suggests the lack of a hearing does not matter, because

the detectives and defendant each testified at trial, and they recounted the events

of the successive interrogations. But that trial testimony is incomplete in several

respects, and does not fully substantiate what occurred during the half -hour gap

between the two recordings.

      Moreover, it was not the jury's function to decide if defendant's

incriminating statements were admissible, but the trial judge's function. See

N.J.R.E. 104(c). By skipping over a vital step of the process, defense counsel

lost the benefit of the judge's important gatekeeping role, and the possibility the

judge might have excluded or limited portions of defendant's admissions.

      In sum, defendant has made a sufficient prima facie showing of counsel's

deficient performance under Strickland prong one.

      Further, defendant also has presented a prima facie case of Strickland

prong two, i.e., actual prejudice. The PCR judge found this prong was not met

because the judge felt defendant would have been unsuccessful if he had tried


                                                                           A-3021-17T3
                                       32
to block the admission and the incriminating statements. Again, with all due

respect to the PCR judge, such an assessment that the alleged poor lawyering

made no difference is premature. An evidentiary hearing should have fleshed

out the record on the subject, particularly since no Rule 104 hearing was ever

conducted.

      Defendant has not presented fanciful concerns of involuntariness. If his

contentions are truthful, the police in this case repeatedly cajoled and misled

him into admitting in the second interview that he had done far more than request

to have Huff "lumped up" but, more egregiously, to have Huff killed. Such a

powerful recorded admission of guilt – which the jury asked to have replayed

before returning their verdict – may have tipped the balance in deliberations,

although the strength the State's other proofs (such as Loatman's testimony)

surely would also be a factor.

      We are mindful that many years have passed since the operative events.

Memories have surely faded. Even so, we will not presume that a Rule 104

hearing would be a waste of time. Given the very lengthy prison term defendant

is now serving, the stakes justify obtaining a full record and detailed judicial

findings of fact on the voluntariness of his admissions.




                                                                         A-3021-17T3
                                      33
      That said, we do not intimate any views on the ultimate merits of the

voluntariness issues. We merely direct that a hearing be held. Following the

outcome of that hearing, either party may file a new appeal with this court if

desired.

                                      D.

      As noted above, we otherwise affirm the PCR judge's remaining findings,

both as to defendant's conviction and also his sentence, which he unpersuasively

claims is disproportionate to the shorter sentence of Loatman, who cooperated

with the State.

      To the extent they are not mentioned explicitly, any and all other

arguments presented by defendant lack sufficient merit to warrant our

discussion. R. 2:11-3(e)(2).

      Affirmed in part, vacated in part, and remanded in part for an evidentiary

hearing. We do not retain jurisdiction.




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                                      34
