STATE OF NEW JERSEY VS. JERRY M. LOATMAN, JR. (08-12-0070, SALEM COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3029-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERRY M. LOATMAN, JR.,
Defendant-Appellant.
_______________________
Submitted February 9, 2021 – Decided March 2, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Accusation No. 08-12-0070.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David M. Galemba, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jerry M. Loatman, Jr. appeals from a March 2, 2018 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1);
first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1), 2C:11-3(a)(1);
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); first-degree robbery,
N.J.S.A. 2C:15-1(a)(1); third-degree theft, N.J.S.A. 2C:20-3(a); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He was
seventeen years old at the time of his arrest.
Codefendant Brooks Harris hired defendant and codefendant Lee
Williams to kill Jeremy Huff, with whom Harris' wife had a relationship. On
August 13, 2008, Harris drove defendant and Williams to Huff's residence and
advised them how to approach and where to enter the residence. Once inside,
the pair entered Huff's bedroom, stabbed him thirty-eight times, and left.
Defendant also took a jar of change as he exited the residence.
Huff died hours later in emergency surgery, but not before telling a State
Trooper and a paramedic who responded to the scene that Harris was the
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perpetrator. Harris was arrested the following morning and in a recorded
interview admitted he hired defendant and Williams to kill Huff.
Defendant was arrested on August 15, 2008. His mother came to the
police station and police read defendant his Miranda1 rights in her presence.
Defendant and his mother signed the Miranda warning card and his mother
consented verbally and in writing to defendant's interrogation while she waited
in the lobby. Defendant's interview was taped and began at 11:45 a.m. and
continued uninterrupted until 2:27 p.m. Defendant initially denied going to
Huff's home and denied involvement by Williams. As police informed him they
had different or more information, he asserted he did not enter the home and
only served as the lookout, and he and Williams only intended to beat Huff.
Then defendant claimed Williams killed Huff before confessing that both he and
Williams committed the murder. Following defendant's interview, he agreed to
take a polygraph test and in the course of the test admitted stabbing Huff.
Defendant entered into a negotiated plea and cooperation agreement with
the State in which he agreed to testify against Harris and Williams. On
December 16, 2008, pursuant to the plea agreement, defendant gave a second
recorded statement to investigators in the presence of his counsel providing
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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more details regarding the crime. On December 18, 2008, defendant waived
indictment and pled guilty to first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a)(1). The remaining charges were dismissed. At his plea hearing,
defendant testified he understood the State was recommending a twenty-five
year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
and further acknowledged he would be subject to mandatory fees and restitution
as demonstrated by the following colloquy:
[Defense counsel]: Okay. You understand the State's
recommending [twenty-five] years['] incarceration,
[you] must do [a] minimum of [eighty-five] percent,
[as] we discussed. The mandatory minimum fees, and
there would be restitution, [as] we noted. Money that
may have been taken, expenses, possibly the funeral
cost; you understand that? That you may liable for it?
[Defendant]: Yes.
The Court: Most likely, you will be.
[Defense counsel]: Do you understand that? Questions
about that so far?
[Defendant]: No.
Defendant's plea forms were completed consistent with his testimony affirming
his knowledge of the plea.
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In July 2009, a grand jury returned a sixteen-count indictment against
Harris and Williams. In April 2010, defendant testified against Harris. A jury
convicted Harris of murder and other offenses.
In 2010, the Salem County Prosecutor's Office learned before Williams
was arrested, he went to his godfather's home to advise him authorities were
looking for him. His godfather, who was friends with Lloyd Lewis, a Lieutenant
in the Lawnside Police Department, brought Williams to the Lawnside Police
Department. Lewis later testified in a motion proceeding in Williams' case that
he mirandized Williams, who then stated he and "some friends went to a home
in Quinton Township . . . that [he] and another gentlemen went into the home,
that the other gentleman stabbed someone." When officers from the Salem
County Prosecutor's Office arrived to pick up Williams on August 20, 2008,
Lewis did not recall if he told them that Williams had given a statement about
the murder. The recording of Williams' statement was deleted after forty-five
days pursuant to the Lawnside Police Department's customary practice because
no one made a request to preserve it.
On January 24, 2012, as Williams' trial approached, defendant's counsel
advised the State defendant was refusing to testify against Williams. Therefore,
lacking Williams' recorded statement and defendant's testimony, the State
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reached a plea agreement with Williams to serve five years for conspiracy to
commit burglary.
On April 17, 2012, defendant was sentenced in accordance with the plea
agreement. Relevant to the issues raised on this appeal, the State argued several
aggravating factors and mitigating factors ten and twelve. Regarding mitigating
factor twelve, the State noted it continued to apply because "[a]lthough[] the
defendant didn't completely comply with his cooperation [agreement,] he did, in
fact, testify at the trial against . . . Harris." Defense counsel agreed, stating: "As
the [p]rosecutor's already said, he did cooperate and testify in one of the trials,
which was very helpful in obtaining a conviction. I'd ask the [c]ourt to follow
the [p]lea [a]greement." The sentencing judge gave "some weight" to factor
twelve, finding although defendant "did not cooperate with the second phase of
his cooperation agreement[,] . . . again, having presided over the trial, his
testimony in the . . . Harris [case] was extremely . . . essential[] to the conviction
that the State obtained in that matter." The judge also signed a restitution order,
which defendant consented to, holding defendant and Harris jointly and
severally liable for payment of $5000 in fines to the Victims of Crime
Compensation Board and $3888 to Huff's estate.
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Defendant appealed from his sentence. In February 2013, we affirmed the
sentence on our sentencing oral argument calendar.
In April 2017, defendant filed the PCR petition raising claims of
ineffective assistance of trial counsel. He argued his attorney failed to file a
motion to suppress his taped statement because the police excluded his mother
from the interrogation and extracted an involuntary confession. He asserted
counsel failed to argue mitigating factor twelve at the sentencing and failed to
argue against restitution. He further argued his plea was neither knowing nor
voluntary because counsel failed to inform him about Williams' statement prior
to his plea.
The PCR judge made comprehensive oral and written findings rejecting
defendant's PCR claims. The judge recounted her review of defendant's
interview in detail and concluded his statement "was made knowingly,
intelligently and voluntarily." She stated:
Defendant was [seventeen] years old at the time
and in the ninth grade. However, he displayed
awareness and maturity beyond what might be expected
of a person in the ninth grade. He asked questions, and
he sought explanations when needed. He understood
the seriousness of his situation ("I'm gonna be doin' a
lot of time.") but did not verbalize any undue distress
about his situation. He was questioned for about four
hours. There is no evidence of physical punishment or
mental exhaustion. Defendant had four prior contacts
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with the criminal justice system. He was advised of his
constitutional rights in the presence of his mother and
voluntarily waived them. His mother gave permission
to the detectives to question her son outside of her
presence. She waited in the waiting area. There is no
evidence to support a finding that she was excluded
from the interrogation room. When [d]efendant
ultimately asked to talk to her, he was allowed to do so.
Further, there is no indication that [d]efendant's
will was overborn[e] by any means during the
interrogation. The fact that the police told [d]efendant
he was lying is insufficient to support a finding that
[d]efendant's statement was not made voluntarily.
Likewise, the fact that the detectives said they would
"make a couple phone calls" would not undermine the
voluntariness of the statement. Notably, the detective
told [d]efendant[:] "[F]or me to tell you exactly what's
gonna happen, I don't know." Thus, the court cannot
find that [d]efendant was promised anything in
exchange for providing a statement.
The judge concluded defendant was not prejudiced by counsel's performance
because a suppression motion would have been unsuccessful.
The judge also rejected defendant's assertion his attorney did not argue
mitigating factor twelve. She noted although the attorney did not enumerate the
factor, counsel's comment during the sentencing that "[a]s the [p]rosecutor's
already said, [defendant] did cooperate and testify in one of the trials, which was
very helpful in obtaining the conviction[]" was clearly a request of
the court to consider [d]efendant's cooperation in the
case[.] . . . It is not unreasonable to conclude [the
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sentencing judge] understood counsel's reference to
cooperation to be a reference to mitigating factor
[twelve].
Furthermore, [the sentencing judge] found that
mitigating factor [twelve] . . . was applicable. The
[j]udge stated that the plea agreement called for
[d]efendant to testify against . . . Harris and . . .
Williams. . . . The [j]udge gave some weight to factor
[twelve] notwithstanding the fact that [d]efendant did
not fully comply with the cooperation requirement of
the plea agreement.
. . . Defendant received the benefit of the plea
agreement, which called for a twenty-five year term in
New Jersey State Prison subject to [NERA], in
exchange for "truthful testimony against any and all
codefendants if requested," despite his failure to fully
comply with his end of the bargain.
The judge rejected defendant's argument his plea was not knowing
because he was unaware of Williams' statement. The judge stated:
[N]either the Salem County Prosecutor[']s Office nor
defense counsel were aware at the time of [d]efendant's
plea that Williams had made statements to a Lawnside
police officer implicating [d]efendant in the murder.
Consequently, the plea agreement did not contain a
condition that [d]efendant would only be required to
testify against Williams if Williams implicated
[d]efendant in some fashion. Likewise, the plea
agreement did not excuse [d]efendant from testifying
against Williams in the event that Williams did not
implicate him in the crime. The plea agreement is clear:
"Truthful testimony against any and all codefendants if
requested" was required in exchange for the State's
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recommendation of a sentence of [twenty-five] years
subject to NERA.
Defendant understood his obligation under the
plea agreement as is evidence[d] by the following
statements . . . from [d]efendant's plea hearing . . . :
Court: . . . You understand it may be
required for you to give truthful testimony,
if that's necessary, with the co-defendants;
you're aware of this?
Defendant: Yes.
Court: Okay. And, essentially, you've
done that in another form, but it may be
required in court, as well; you understand
that?
Defendant: (No verbal response given,
defendant nodded head in the affirmative).
Court: . . . And, . . . you understand that
there may come a time, in trials, perhaps,
or in some other [c]ourt proceeding, where
you would be required to testify, under
oath, against the persons that were also
involved in this matter? You appreciate
that?
Defendant: Yes.
Court: And, that that would continue on
until such time as their cases are resolved,
whether by trial, or maybe they'll be [p]lea
[a]greements with them. We don't know
that yet. But, you may be called upon to
take this stand and raise your right hand,
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and to testify truthfully. Any problem
understanding that?
Defendant: No.
This record indicates that [d]efendant understood
that he was required to testify against Williams,
regardless of what Williams might do. Defendant was
not relieved of his obligation simply because he
perceived that Williams had not implicated him in the
murder. He has failed to demonstrate that his choice
not to testify was the result of ineffective assistance of
counsel.
....
As noted earlier, it appears that neither the
prosecutor nor defense counsel were aware of
Williams['] conversation with Lawnside police until
sometime in 2010 – long after [d]efendant's plea. . . .
Defendant has failed to explain how his lack of
knowledge of this statement undermines the validity of
his plea.
The PCR judge rejected defendant's arguments relating to the restitution
noting he "signed a consent order agreeing to pay this amount of restitution" and
confirmed he "understood this require[ment] as is evident from his testimony
during the plea." The judge concluded
[d]efendant acknowledged both the loss sustained and
his ability to pay over time by consenting to the
amounts requested. He did not challenge the
imposition of restitution at the time of his plea or
sentence. It appears he did not challenge it on appeal.
He now alleges that it is a hardship for him to pay
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restitution because any amounts deposited in his
account are greatly depleted by withdrawals to pay
restitution. He has not provided any information as to
how much he has paid towards his obligation or how
much is taken from his account on a monthly basis to
make the payment toward restitution. He has not
demonstrated that counsel was ineffective for not
objecting to the imposition of restitution at the time of
sentencing.
The judge denied the PCR petition because defendant did not demonstrate
a prima facie case of ineffective assistance of counsel and a hearing would not
aid the judge to decide the matter.
Defendant raises the following point on appeal:
The trial court erred in denying defendant's petition for
post-conviction relief without an evidentiary hearing
....
A defendant asserting a claim of ineffective assistance of counsel must
satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668,
687 (1984), and later adopted by our Supreme Court in State v. Fritz, 105 N.J.
42, 58 (1987). Under that test, a defendant first "must show that counsel's
performance was deficient." Strickland, 466 U.S. at 687. The defendant must
establish that the attorney's performance "fell below an objective standard of
reasonableness" and that "counsel made errors so serious that counsel was not
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functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Id. at 687-88.
The defendant also must show "the deficient performance prejudiced the
defense." Id. at 687. To establish prejudice, the defendant must show "there is
a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome" of the matter.
Id. at 694.
An evidentiary hearing on a PCR petition is required only when the
defendant presents a prima facie case for relief, the court determines that there
are issues of material fact that cannot be resolved by reference to the existing
record, and the court determines that an evidentiary hearing is required to
resolve the issues raised. State v. Porter, 216 N.J. 343, 354 (2013) (citing R.
3:22-10(b)). "A prima facie case is established when a defendant demonstrates
'a reasonable likelihood that his or her claim, viewing the facts alleged in the
light most favorable to the defendant, will ultimately succeed on the merits.'"
Id. at 355 (quoting R. 3:22-10(b)).
In State v. Presha, our Supreme Court stated:
[F]or a confession to be admissible as evidence,
prosecutors must prove beyond a reasonable doubt that
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the suspect's waiver was knowing, intelligent, and
voluntary in light of all the circumstances. State v.
Burris, 145 N.J. 509, 534 (1996); State v. Kelly, 61 N.J.
283, 294 (1972).
At the root of the inquiry is whether a suspect's
will has been overborne by police conduct. In
determining whether a suspect's confession is the
product of free will, courts traditionally assess the
totality of circumstances surrounding the arrest and
interrogation, including such factors as "the suspect's
age, education and intelligence, advice as to
constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature and
whether physical punishment or mental exhaustion was
involved." State v. Miller, 76 N.J. 392, 402 (1978).
Additionally, "[a] suspect's previous encounters with
the law has been mentioned as [a] relevant factor."
Ibid. We reaffirm those factors as germane to an
evaluation of the admissibility of either adult or
juvenile confessions.
[163 N.J. 304, 313 (2000) (alterations in original).]
Defendant reasserts the arguments raised before the PCR judge.
Defendant also points to our decision on an appeal from the denial of a PCR
petition in Harris' case in which we remanded for an evidentiary hearing on
whether Harris' statement to police should have been suppressed and argues he
is entitled to a hearing as well. State v. Harris, No. A-3021-17 (App. Div. Nov.
27, 2019) (slip op. at 1). He posits that he "was only [seventeen] years old when
he was interrogated[, h]is parents were not present[, and t]he primary culprit [,]
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. . . Harris, had already given a statement to officers, months before, pointing to
[defendant] as a perpetrator." He asserts "[t]hese facts warranted an evidentiary
hearing and exploration of defense counsel's failure to pursue a motion to
suppress [defendant's] statements before advising the juvenile defendant to enter
a guilty plea subjecting him to [twenty-five] years in prison."
The outcome of Harris' PCR case has no bearing on defendant's matter
because the facts are different. We remanded Harris' case for an evidentiary
hearing because he alleged that on a
break during his recorded statements to the detectives,
. . . detectives interrogated him, without being recorded,
in a different room. He contend[ed] that
representations of the detectives during this alleged off-
the-record interrogation made his second statement
involuntary. As such, he argue[d] 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.
[Id. at 21.]
We noted the detectives in Harris' case repeatedly told him Huff was alive
when he had in fact died and told Harris they would speak with Huff if Harris
did not confess. Id. at 26-28. We stated:
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
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future trial. Such a concern might have affected his
willingness to be more forthcoming and cooperative
with the police.
[Id. at 28.]
We also noted detectives also attempted to have Harris confess by appealing to
Harris' desire to raise his children. Ibid.
Additionally, we found the timing of Harris' interrogation raised
questions. We noted Harris
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.
[Id. at 29.]
We concluded Harris:
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
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proofs (such as Loatman's testimony) surely would also
be a factor.
[Id. at 33.]
None of the concerns raised in Harris' case apply here. In addition to
defendant and his mother consenting to the interrogation, there was no break or
unrecorded portion of defendant's interrogation. Police interrogated defendant
at a reasonable hour, beginning in mid-morning and ending in early afternoon.
Police did not mislead defendant about Huff's status or attempt to cajole
defendant by appealing to his desire to see his family again.
The record also shows the PCR judge appropriately applied the Presha
factors in concluding defendant's confession was voluntary. For these reasons,
the PCR judge correctly found there were no facts warranting a hearing and trial
counsel did not err by failing to file a motion to suppress defendant's statement
because such a motion would not have been successful.
Finally, defendant argues
[a]n evidentiary hearing was warranted . . . on [his]
claim that his lawyers were "ineffective for failing to
ask for a lighter sentence because of significant
[mitigating] [f]actor [twelve]." As PCR counsel
argued, defendant's lawyers did not advise him that the
perpetrator, Williams, had already "confessed to the
crime" and implicated [defendant].
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Defendant argues this resulted in him receiving a much longer and disparate
sentence than Williams.
This argument lacks merit, and we affirm substantially for the reasons
expressed in the PCR judge's decision. Defendant did not receive a disparate
sentence. Rather, the record shows Williams received a lesser sentence due to
defendant's refusal to testify against him, thereby depriving the State of its
ability to prosecute Williams on the more serious charges. Regardless,
defendant received the full benefit of his plea agreement and his counsel was
not ineffective as a result.
To the extent we have not addressed an argument raised by defendant, it
is because it lacks sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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