                                NOT FOR PUBLICATION WITHOUT THE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-0705-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRIAN M. MERTZ,

     Defendant-Appellant.
________________________

                   Submitted June 1, 2020 – Decided July 2, 2020

                   Before Judges Messano and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 09-06-
                   0488.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Howard W. Bailey, Designated Counsel, on
                   the brief).

                   Christine A. Hoffman, Acting Gloucester County
                   Prosecutor, attorney for respondent (Dana R. Anton,
                   Special Deputy Attorney General/Acting Senior
                   Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Brian M. Mertz appeals from an order denying his post-

conviction relief (PCR) petition without an evidentiary hearing.         Having

considered the record and the parties' arguments in light of the applicable legal

principles, we affirm.

                                         I.

      On October 25, 2012, a jury convicted defendant of the first-degree

knowing and purposeful murder of J.W. In our decision affirming defendant's

conviction and sentence on his direct appeal, State v. Mertz, No. A-3704-12

(App. Div. Dec. 29, 2015), we described the facts established by the trial

evidence. We briefly restate and summarize those facts to provide context for

the issues defendant raises on appeal.

      On May 26, 2002, J.W.'s body was found in a field across the street from

a motel in West Deptford. Her boots were on the wrong feet; her blouse was

inside out; and her brassiere was unhooked. An autopsy showed J.W. was

beaten, strangled, and suffered from multiple stab and slash wounds. A vaginal

swab revealed the presence of semen.

      Law enforcement officers looked in rooms at the motel but did not find

evidence of any struggles or blood. A yellow Honda CR-X vehicle registered




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                                         2
to defendant was in the motel parking lot. Officers spoke to defendant, who was

staying at the motel, and he appeared calm.

      The New Jersey State Police Lab tested the semen. During the subsequent

investigation, buccal swabs were obtained from approximately one hundred

men, but none resulted in a positive match to the DNA obtained from the semen.

      In July 2007, law enforcement received information from the New Jersey

State Police Lab that resulted in an investigation of defendant. During a July

16, 2007, interview with detectives, defendant reported that at the time of J.W.'s

murder he was a heavy drug user, owned a yellow Honda vehicle, and was

staying at the motel. Defendant was shown a picture of J.W., but he denied

knowing her. Defendant was also informed his DNA was found in J.W.'s body,

but he denied having sex with her and ever having been with her. The interview

ended when defendant requested an attorney.

      Defendant returned to the police station the next day, and the interview

continued. He explained he had been "petrified" while giving his statement the

prior day, and he said he met J.W. at a bar late in the evening of May 24, 2002,

had sex with J.W. in his car, and then dropped her off at a trailer park near the

motel. Defendant said he went to work the next day and was paid off the books

in cash. He denied killing J.W. and provided a buccal swab to the officers.


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                                        3
Testing of the swab revealed defendant's DNA profile "matched the major

contributor DNA profile" obtained from the semen recovered from J.W.

          Defendant was arrested and charged with J.W.'s murder and other

offenses. In December 2011, officers executed a search warrant at the residence

where defendant lived with his grandmother and seized a pocketknife found in

a tool chest in the garage.

          Following his arrest, defendant was held in custody with H.L. in the

Gloucester County Jail. H.L. testified at trial that defendant said he had been

staying in a "hotel" and had a relationship with J.W., which they kept secret

because of defendant's girlfriend.    H.L. described the yellow Honda CR-X

defendant owned at the time and testified defendant said he "was the one that

did it and that he was going to get away with it [because] they couldn't prove

that he did it. There was no evidence."

          H.L. also testified defendant said he and J.W. were getting high and

having sex and, when J.W. refused his request for money to buy drugs, he hit

her several times with his hands and stabbed her with a knife. H.L. testified

defendant mentioned using a fishing knife that would not be found because he

hid it.




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                                          4
      According to H.L., defendant also said he needed an alibi, so he went to

work on the day following the murder and to his grandmother's house to change

his clothes and hide the knife. H.L. said defendant told him J.W. wore her shoes

on the wrong feet and her shirt was inside out. H.L. denied reviewing any

discovery materials related to the case against defendant and testified he learned

all of the information about J.W.'s murder from defendant.

      The trial court granted defendant's motion for acquittal on certain charges,

and the jury convicted defendant of first-degree knowing and/or purposeful

murder. N.J.S.A. 2C:11-3(a)(1) and/or (2). The court sentenced defendant to a

fifty-year custodial term subject to the requirements of the No Early Release

Act, N.J.S.A. 2C:43-7.2. As noted, we affirmed defendant's conviction and

sentence on his direct appeal, Mertz, slip op. at 1, 23, and the Supreme Court

denied defendant's petition for certification, State v. Mertz, 224 N.J. 529 (2016).

      In February 2017, defendant filed a PCR petition and was assigned

counsel.   In his pro se petition, defendant claimed his trial counsel was

ineffective by failing to: "request appropriate lesser-included offenses"; "object

to improper and misleading remarks by the prosecutor during summation ";

"object to misleading and improper jury instructions given by the court"; "call

and   properly prepare defense        witnesses   for testimony";     "investigate


                                                                           A-0705-18T1
                                        5
witnesses . . . [and] other defenses"; and "put the State's case to any meaningful

adversarial test." 1 Defendant's counsel's brief to the PCR court argued trial

counsel was also ineffective by failing to: effectively challenge the State's

argument defendant and J.W. argued about drugs; object to the introduction of

evidence about the recovery of the knife; adequately investigate the crime scene

evidence; and challenge the testimony of the State's expert witness in forensic

pathology. Defendant's PCR counsel also argued trial counsel was ineffective

by failing to object to a police lieutenant's testimony that the July 16, 200 7,

interview of defendant ended when defendant "asked for a lawyer."               PCR

counsel also generally alleged defendant's appellate counsel was ineffective by

failing to raise the same issues on appeal.

      Following oral argument on the PCR petition, the court issued a detailed

written opinion finding defendant failed to sustain his burden of establishing a

prima facie case of ineffective assistance of counsel on each of his claims. The

court also found defendant's claim his counsel was ineffective by failing to

object to testimony that his July 16, 2007 interview with police ended because




1
    Defendant's petition also generally alleged his appellate counsel was
ineffective, but it did not identify any specific deficiencies in appellate counsel's
representation.
                                                                             A-0705-18T1
                                         6
he "asked for a lawyer" was barred by Rule 3:22-4(a) because it could have been

raised at trial and on defendant's direct appeal.

      The court entered an August 10, 2018 order denying the PCR petition

without an evidentiary hearing. This appeal followed.

      Defendant presents the following arguments for our consideration:

            POINT I

            THE POST-CONVICTION RELIEF 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 FROM TRIAL COUNSEL.

            A. THE PREVAILING LEGAL PRINCIPLES
            REGARDING    CLAIMS OF  INEFFECTIVE
            ASSISTANCE OF COUNSEL, EVIDENTIARY
            HEARINGS, AND PETITIONS FOR POST-
            CONVICTION RELIEF.

            B. DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE   OF   COUNSEL  WHEN   HIS
            ATTORNEY    FAILED    TO  OBJECT  TO
            QUESTIONING ABOUT HIS CONSTITUTIONAL
            RIGHT TO REMAIN SILENT.

            POINT II

            THE COURT MISAPPLIED ITS DISCRETION IN
            APPLYING R. 3:22-4 AS A PROCEDURAL BAR
            AGAINST THE DEFENDANT'S FILING FOR POST-
            CONVICTION RELIEF.

                                                                       A-0705-18T1
                                         7
                                       II.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee a defendant in a criminal

proceeding the right to the assistance of counsel in his or her defense. The right

to counsel includes "the right to the effective assistance of counsel." State v.

Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S.

668, 686 (1984)).

      In Strickland, the Court established a two-part test, later adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a

defendant has been deprived of the effective assistance of counsel. Strickland,

466 U.S. at 687; Fritz, 105 N.J. at 58. Under the first prong of the Strickland

standard, a petitioner must show that counsel's performance was deficient. 466

U.S. at 687. It must be demonstrated that counsel's handling of the matter "fell

below an objective standard of reasonableness," and that "counsel made errors

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

defendant by the Sixth Amendment." Id. at 687-88.

      Under the second prong of the Strickland standard, a defendant "must

show that the deficient performance prejudiced the defense." Id. at 687. There

must be a "reasonable probability that, but for counsel's unprofessional errors,


                                                                          A-0705-18T1
                                        8
the result of the proceeding would have been different." Id. at 694. A petitioner

must demonstrate that "counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable." Id. at 687. "The error

committed must be so serious as to undermine the court's confidence in the jury's

verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing

Strickland, 466 U.S. at 694).

      "With respect to both prongs of the Strickland test, a defendant asserting

ineffective assistance of counsel on PCR bears the burden of proving his or her

right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J.

339, 350 (2012) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v.

Goodwin, 173 N.J. 583, 593 (2002)). A failure to satisfy either prong of the

Strickland standard requires the denial of a PCR petition. Strickland, 466 U.S.

at 700; Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52.

      A PCR court should grant an evidentiary hearing if a defendant establishes

a prima facie claim in support of PCR. State v. Preciose, 129 N.J. 451, 462-63

(1992). "To establish a prima facie claim of ineffective assistance of counsel, a

defendant must demonstrate the reasonable likelihood of succeeding under the"

Strickland standard. Id. at 463.




                                                                            A-0705-18T1
                                         9
      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004) (citing Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies

to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing

has not been held, it is within our authority "to conduct a de novo review of both

the factual findings and legal conclusions of the PCR court." Id. at 421. We

apply that standard here.

      Defendant's argument on appeal is limited to the PCR court's denial of his

claim that his trial counsel was ineffective by failing to object to testimony that

defendant asked for a lawyer during his July 16, 2007 interview with the police.

More particularly, defendant asserts counsel should have objected during the

following exchange at trial between the prosecutor and the lieutenant who

participated in the interview:

            PROSECUTOR: Was [defendant] arrested and charged
            with anything [on July 16, 2007]?

            LIEUTENANT: No, he was not.

            PROSECUTOR: Do you know how he left the
            prosecutor's office and got home?

            LIEUTENANT: He was driven home.

            PROSECUTOR: By whom?


                                                                           A-0705-18T1
                                       10
            LIEUTENANT: Myself and another detective.

            PROSECUTOR: Did you discuss the case, the
            substance of the case with [defendant] at all during that
            time period when you were driving with him home?

            LIEUTENANT: No. Not at all.

            PROSECUTOR: And why not?

            LIEUTENANT: He asked for a lawyer. There was no
            reason to discuss it any further.

       Defendant argues counsel should have objected to the testimony and

requested a mistrial because the testimony implicated defendant's rights to

counsel and to remain silent, and impermissibly and prejudicially suggested to

the jury "he had something to hide and did not want to discuss." The PCR court

rejected the contention, finding trial counsel's failure to object to the testimony

did not constitute deficient performance under the first prong of the Strickland

standard because evidence that the July 16, 2007 interview ended because

defendant requested an attorney was proper and admissible. The PCR court also

found defendant failed to satisfy the second prong of the Strickland standard

because he made no showing the testimony was prejudicial.

      In finding defendant's counsel's performance was not deficient, the PCR

court relied on State v. Feaster, where our Supreme Court rejected a claim that

trial testimony asserting the defendant's interview with the police ended because

                                                                           A-0705-18T1
                                       11
"[h]e invoked his right to counsel" required reversal of the defendant's

conviction. 156 N.J. 1, 73-75 (1998). The Court in Feaster noted with approval

our decision in State v. Ruscingno, where we found admissible testimony a

defendant invoked his right to remain silent because it "was not elicited to draw

unfavorable inference to the fact that defendant decided to remain quiet at that

point; rather, the testimony shows that the interrogation had a logical ending ,"

217 N.J. Super. 467, 470-71 (App. Div. 1987). Id. at 75. In Ruscingno, we

determined the testimony that the defendant invoked his right to remain silent

was admissible because without it, the officer's "description of the interrogation

would have been incomplete." 217 N.J. Super. at 471.

      In Feaster, the Court found "trial courts should endeavor to excise any

reference to a criminal defendant's invocation of [the] right to counsel," but a

trial court may "permit testimony explaining why an interview or interrogation

was terminated" "in cases where the proffered testimony does relate substantial

evidence regarding a defendant's statements about the underlying crime, such

that a jury without further information would be naturally inclined to question

why testimony regarding subsequent events was not offered." 156 N.J. at 75-

76. The Court, however, noted such testimony is admissible "only if [it] is

essential to the complete presentation of the witness's testimony and its omission


                                                                          A-0705-18T1
                                       12
would be likely to mislead or confuse the jury." Id. at 76. The Court further

explained that, where the testimony is admitted under such circumstances, "a

cautionary instruction should be provided that explains to the jury that people

decline to speak with police for many reasons, emphasizing that a defendant's

invocation of his right to counsel or right to remain silent may not in any way

be used to infer guilt." Ibid.

      In Feaster, the Court determined the testimony concerning the defendant's

invocation of his right to counsel occurred while questioning about the

defendant's employment and not about the crimes for which he was being

investigated and was later charged. Ibid. The Court found the testimony about

the invocation of the right to counsel "did not purport to convey any information

relevant to [the] defendant's involvement in the" crimes for which he was on

trial. Ibid. The Court explained the trial court should have instructed the jury

not to draw any unfavorable inferences from the defendant's invocation of the

right to counsel. Ibid.

      The Court, however, did not find that testimony, or the court's failure to

provide a cautionary instruction, was clearly capable of producing an unjust

result. Id. at 77. The Court noted that the reference to the defendant's invocation

of his right to counsel was "fleeting," the prosecutor did not comment on the


                                                                           A-0705-18T1
                                       13
invocation during summations, and the court's general charge that the jury could

not "hold defendant's failure to testify against him . . . impart[ed] to the jury the

respect to be accorded [the] defendant's decision to remain silent." Ibid.

      Here, defendant argues trial counsel's performance was deficient by

failing to object to the disputed testimony that was inadmissible under Feaster

and Ruscingno. Defendant claims the testimony was inadmissible because it did

not provide an explanation why the July 16, 2007 interview with defendant came

to a logical end and, in any event, no explanation was necessary.

      We find nothing in the record that would have supported the proper

admission of the lieutenant's testimony about defendant's invocation of his right

to counsel. Unlike in Ruscingno, the lieutenant did not describe defendant's

invocation of his right to counsel to explain why the July 16, 2007 interview

ended or to complete his description of the interview. 217 N.J. Super. at 471.

Instead, he described defendant's request for a lawyer when asked why he did

not discuss "the substance of the case" with defendant after the interview at the

prosecutor's office ended and while he drove defendant home. We find no basis

to conclude that omission of the testimony "would [have been] likely to mislead

or confuse the jury," or that without the testimony, the jury would have been

"naturally inclined to question why testimony regarding subsequent events," like


                                                                             A-0705-18T1
                                        14
what was or was not discussed during the transport of defendant home, "was not

offered." Feaster, 156 N.J. at 76. The testimony was simply unnecessary to

address any issues upon which the jury might have otherwise speculated. Id. at

75-76.

      Trial counsel should have objected to the testimony because it was

inadmissible under the circumstances presented. And, even if the testimony was

properly admitted, trial counsel should have requested an appropriate curative

jury instruction. See ibid. We therefore conclude the PCR court erred by finding

defendant did not make a prima facie showing trial counsel's performance was

deficient, and defendant did not sustain his burden under the first prong of the

Strickland standard. See State v. Hess, 207 N.J. 123, 155-60 (2011) (finding

effective assistance of counsel requires that trial counsel challenge and object to

inadmissible evidence).

      The PCR court, however, correctly denied defendant's PCR petition

because defendant failed to satisfy the second prong of the Strickland standard.

Defendant failed to make any showing there is a "reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have

been different." Strickland, 466 U.S. at 694. In fact, other than making a

conclusory assertion trial counsel's purported errors result in prejudice,


                                                                           A-0705-18T1
                                       15
defendant offers no argument or evidence establishing he suffered any prejudice

under the second prong of the Strickland standard. See, e.g., State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999) (explaining a PCR petition "must do

more than make bald assertions" and "must assert the facts" upon which the

claims are based).

      The record shows the challenged testimony was fleeting, the court

generally instructed the jury on defendant's right to remain silent , and the

prosecutor made no mention of defendant's request for an attorney during

summations or at any other time during the trial. Thus, defendant stands in the

same shoes as the defendant in Feaster, where the Court found under similar

circumstances that fleeting testimony concerning the defendant's invocation of

his right to counsel, which was unaccompanied by a specific cautionary jury

charge, was not sufficiently prejudicial to warrant reversal of the defendant's

conviction. Feaster, 156 N.J. at 77.

      In addition, the evidence of defendant's guilt at trial, including the forensic

DNA evidence; defendant's conflicting statements to the police about his

involvement with J.W.; and H.L.'s testimony about the details of the murder he

learned from defendant's admission he killed J.W., is substantial. See State v.

Pierre, 223 N.J. 560, 583 (2015) (finding "[i]mportant to the prejudice analysis


                                                                             A-0705-18T1
                                        16
is the strength of the evidence that was before the fact-finder at trial"). Any

claim of prejudice based on the lieutenant's statement that defendant requested

a lawyer on July 16, 2007, is also undermined by the evidence showing

defendant voluntarily appeared the next day and provided a second interview

without the presence of counsel.

      A petitioner must establish both prongs of the Strickland standard in order

to obtain a reversal of the challenged conviction. Strickland, 466 U.S. at 687;

Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52. A failure to satisfy either prong of

the Strickland standard requires the denial of a PCR petition. Strickland, 466

U.S. at 700.    Thus, defendant's failure to satisfy the second prong of the

Strickland standard required the denial of his PCR petition.

      Defendant was also not entitled to an evidentiary hearing. A defendant is

not entitled to an evidentiary hearing where, as here, he fails to establish a prima

facie case in support of post-conviction relief. R. 3:22-10(b). Where a PCR

petition is founded on a claim of ineffective assistance of counsel, the defendant

must satisfy the Strickland standard to establish a prima facie case in support of

post-conviction relief. Strickland, 466 U.S. at 668. Because defendant failed to

do so here, the PCR court correctly denied defendant's request for an evidentiary

hearing. See State v. Marshall, 148 N.J. 89, 158 (1997).


                                                                            A-0705-18T1
                                        17
      Our determination defendant failed to establish a prima facie case on the

merits for his ineffective assistance of counsel claim renders it unnecessary to

determine if the court correctly determined defendant's claim was barred under

Rule 3:22-4(a). Any arguments made by defendant we have not expressly

addressed are without sufficient merit to warrant discussion in a written opinion.

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

      Affirmed.




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                                       18
