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State v. Reshevsky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOEL RESHEVSKY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. S-2000-140-0236.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 21, 2010

Before Judges C.L. Miniman and Waugh.

Defendant Joel Reshevsky appeals from an order denying his application for post-conviction relief (PCR) based on ineffective assistance of counsel in connection with his conviction of harassment, contrary to N.J.S.A. 2C:33-4b, a petty disorderly persons offense for which defendant was fined an aggregate amount of $408. Because the judge erred in finding that defendant did not make out a prima facie case of ineffective assistance of counsel and in failing to conduct an evidentiary hearing, we reverse and remand. We order that an evidentiary hearing be conducted within thirty days of this opinion, unless defendant's expert is not then available, in which case the hearing shall be conducted on the first date the expert can attend and give testimony.

On August 16, 2000, defendant appeared in Montvale Municipal Court for a trial on a motor vehicle offense. The municipal judge found defendant guilty of going through a red light. Defendant then asked the judge if he could ask him a question on or off the record. The judge replied in a very loud voice, "No. Please leave. I have another matter to get to." Defendant inquired about the fine and the judge stated the fine again. Defendant then turned to Montvale Police Officer Denis Murphy, thanked him for testifying during the trial, and stated, "You lied." The prosecutor then protested twice that Murphy did not lie, and defendant left the courtroom.

According to Murphy, defendant approached him in an agitated manner in the lobby following the August 16, 2000, trial. The officer said that defendant's hand was raised with his index finger pointing at Murphy two to three inches from his face and defendant called him a liar in a loud voice. Murphy asked Sergeant Gregory Hanna to close the courtroom doors and he complied.

Murphy claimed that defendant then stood no more than a foot from him, accusing him of lying during the trial. Murphy said that defendant at that point poked him in the chest twice with his index finger, after which Murphy warned defendant that, if he poked him again, the officer would arrest him.*fn1 Defendant then poked him two or three more times, and Murphy placed him under arrest, grabbed his hand, and attempted to handcuff him. Defendant, however, was extremely agitated and tried to pull his arm away from Murphy. Montvale Police Officer Jeffrey Markheim observed these events and assisted Murphy in handcuffing defendant. After conferring with Murphy, the detective on duty charged defendant with harassment.

After defendant had been arrested, Murphy returned to the courtroom to testify in the next matter and conferred with the prosecutor while the matter was proceeding. Portions of that conversation were inaudible to the court reporter who transcribed the tape, but during audible portions the prosecutor and Murphy clearly discussed the conversation between defendant and the prosecutor after the judge's decision. The prosecutor whispered, "I am here as far as I--the guy left here (inaudible). He said, 'Thank you for understanding (phonetic), but he's a liar.' And I said, 'No, he's not.' And he said, 'Yes, he is.' And I said, 'No, he's not.' He says, '(inaudible).'"

After Murphy testified on the other matter, he resumed his conversation about defendant with the prosecutor. Murphy said, "That case (inaudible) got kicked out because I'm the witness as to what he was like--Reshevsky." Then the prosecutor said, "Subpoena me. Because he was like telling me in here you were a liar, and I said, no, (inaudible), get out." Murphy then said, "He should have just left." The prosecutor replied, "I know. He never--but the (inaudible)--he could never see that (inaudible)--the guy--." Murphy replied, "The guy is sitting in (inaudible) but the officer was in the intersection. He don't [sic] understand. That part's over. You got new problems." The prosecutor asked, "Did he poke (phonetic) you?" Murphy answered, "Yeah." The prosecutor replied, "That's what I figured. I could tell he's--."

After the prosecutor examined a witness, he resumed his conversation with Murphy. This conversation continued while the judge was placing his decision on the other matter on the record; the conversation clearly related to defendant. Murphy remarked, "I'll tell you the truth if someone calls me a liar (inaudible)--." The prosecutor remarked, "Yeah, I know. When you've been doing it a long time." Murphy replied, "He didn't-- he said--the Judge said, 'Shut up.'" Later, the prosecutor said, "He's going to deny it. He's going to deny touching (phonetic) (inaudible)." A short time later, Murphy said, "I don't know what his fucking problem is. He just doesn't get it." Then he said, "I heard (inaudible) say if anyone calls me a liar or something like that, you know, the guy--. . . that the guy doesn't stop (inaudible). When you turn around, he (inaudible)--that's consistent with (inaudible)--." The prosecutor replied, "He doesn't get this guy's (inaudible)--."

Further conversation was inaudible to the court reporter, although it continued to occur until the prosecutor said, "He was annoying. He was telling me, you know, you're a liar. You're a liar. He said it in here twice. He said it in here twice." Murphy's response was inaudible, but the prosecutor said, "Put me down as a witness to (inaudible)." Murphy said, "I'm saying the guy's a (inaudible). The judge told him to shut up (inaudible)." Although that was not the end of the conversation, the balance was inaudible.

The Montvale municipal judge transferred the trial of the harassment charge to the Alpine Municipal Court. The trial began on March 30, 2004, and continued on June 15 and October 13, 2004. Murphy was the first witness to testify. In addition to testifying to the facts described above, Murphy testified that he felt harassed, had not asked Reshevsky to touch him, and was disturbed that he did so. Murphy found Reshevsky's conduct alarming because he was highly agitated and had assaulted Murphy. Murphy was annoyed that this occurred in a public forum, and he found the physical contact annoying.

On cross-examination, Murphy denied that he removed defendant's hat, crushed it, and threw it to the ground.*fn2 He denied calling defendant a scum, a punk, an ass, and stating "they're scum." He denied that the prosecutor asked, "Did he poke you?" and denied that he replied, "No, but he was a pain." He denied remembering that he told the prosecutor, "When somebody calls me a liar, I get pissed off." He also denied recalling that he told the prosecutor, "It was stupid of me to react to . . . Rabbi Re[s]hevsky."

The State then called Markheim, who testified that he was in the lobby during the confrontation between Murphy and defendant. He had observed defendant in the courtroom initially and then defendant came into the lobby in an excited manner. Defendant went directly to Murphy, said he was innocent, and called Murphy a liar, getting face to face with him and pointing his finger at Murphy's face as Murphy repeatedly told him to lower his voice. Markheim did not see any physical contact between defendant and Murphy. Markheim assisted Murphy with handcuffing defendant and processing him at police headquarters. Defendant continued to protest that he was innocent and that Murphy was a liar. The State then rested and defendant moved for a judgment of acquittal, which was denied.

Defendant then testified that he saw Murphy at police headquarters between the date he was given the ticket and the August 16, 2000, trial. He sought information about the law applicable to the traffic violation, and a police officer was explaining it to him when Murphy came out to the desk yelling at defendant and telling him to go to a public library. Murphy then invaded defendant's personal space and forced him out of the police station. Defendant next saw Murphy at the trial.

Although other people were asked to speak with the prosecutor, defendant was not afforded that opportunity to resolve the matter. He admitted seeing Murphy in the lobby after the judge asked him to leave the courtroom and telling Murphy, in an admonishing fashion, that he was a liar. He was not yelling. He also admitted pointing his finger at Murphy, but claimed to be several feet away from him when he did so. He testified that he then turned to go pay the motor vehicle fine when Murphy started yelling, telling him not to ever point his finger at him again. Then, Murphy went after him, pushed him, started tugging him, pulling him and ripping his shirt. Defendant tried to pull away, and Murphy then drove him "up against the wall" where fines are paid to the clerk and said defendant was under arrest. Defendant denied ever making any physical contact with Murphy prior to his arrest. He testified that Murphy removed his hat violently and crushed it and that he did not intend to harass or annoy Murphy, but only to let him know that defendant thought he had lied about the traffic offense.

After defendant's testimony was finished, his attorney made a proffer with respect to an expert in audio enhancement who had performed an enhancement of the official tape recording of the August 16, 2000, trial. The expert would testify with respect to the statements made by the judge to defendant after he had been found guilty. He would then testify that when the prosecutor asked Murphy if defendant poked him, Murphy replied, "No, but he was a pain." Finally, the expert would testify that Murphy later said, "When somebody calls me a liar, I get pissed off," and, "It was stupid of me to react." After some colloquy with the judge, defense counsel offered to submit a brief on the admissibility of the transcript and the enhanced audiotape, and the trial was continued to June 15, 2004.

On the second day of trial, defendant called the Montvale prosecutor, but he was unable to recall whether Murphy told him that defendant did not poke him, but defendant "was a pain." He had no recollection of Murphy saying it was stupid of him to react or of Murphy saying that when someone calls him a liar he gets "pissed off." He denied saying he had to get back in there, "this fucking with the rebel, we can't have a photo op of Markheim smashing his head in" and had no recollection of anyone saying that to him. On cross-examination, he had no recollection of any conversation with Murphy, but he did remember the judge yelling at defendant, defendant calling Murphy a liar, and that something happened in the lobby.

Defense counsel then recalled defendant, who testified he left the courtroom at 7:10 p.m. and was arrested ten minutes later. There were only two people in the courtroom in addition to the prosecutor and judge. He testified he took one or two steps out of the courtroom, called Murphy a liar, and pointed at him with his left hand from seven to ten feet away. He never touched Murphy. He then walked toward the window to pay his fines. Murphy pursued him in a "pusillanimous fashion," screaming and yelling. He also testified that he listened to the tape recording of the proceedings on August 16, 2000, and could hear Murphy's voice and the prosecutor's voice.

Defense counsel returned to the subject of the enhanced tape recording. Although he submitted a brief to the judge, the judge commented that it was not what he was expecting because he wanted a brief on the admissibility of an enhanced audiotape. The judge ultimately agreed to listen to the enhanced audiotape and to permit the expert to testify. The matter was continued to October 13, 2004.

At that time, defendant called Hanna to the stand. He was the assigned municipal court officer on August 16, 2000. He was in the courtroom standing by the door when defendant was found guilty and then left the courtroom. He heard the judge tell defendant to leave the courtroom. As defendant approached Hanna, he said, "You were nice to me," and then told Murphy that he was a liar. Murphy told defendant not to call him a liar. The exchange continued as defendant and Murphy walked away from the door to the courtroom. He saw defendant pointing at Murphy's face. Defendant's finger never came in contact with any part of Murphy's anatomy. All he heard and saw defendant say and do was tell Murphy he was a liar and point his finger within one inch of Murphy's face. He did not recall Murphy telling defendant not to point his finger at him. As Hanna closed the courtroom door, he saw Murphy and defendant in a scuffle and heard Murphy say that defendant was under arrest; this was at 7:20 p.m. Had he heard Murphy tell defendant to get his hands off him, Hanna would have interceded.

After Hanna's testimony was completed, defense counsel sought to recall Murphy and Markheim, but the judge would not allow them to testify. Counsel then addressed the issue of the defense expert, who had been in court on March 30, 2004, but was not reached. Instead, briefs were sought and provided. However, the expert was not available on October 13, 2004. The judge pointed out that counsel had not provided him with any legal authority respecting the admissibility of an enhanced audiotape and, even if the expert were in court, the judge would not permit him to testify. The judge found that the tape was not admissible and concluded the proceedings.

In his October 28, 2004, written decision, the judge noted that defendant had been charged with violating N.J.S.A. 2C:33-4b, "subject[ing] another to striking, kicking, shoving, other offensive touching, or threatens to do so." Among other things, he found that defendant "in fact poked or touched . . . Murphy's chest on three to four occasions while at the same time calling him a liar." He also found "[t]hat defendant failed to heed Officer Murphy's warning that if he touched Officer Murphy again, he would be arrested." He expressed that he did not believe defendant's testimony and that even if defendant did not actually touch Murphy, he threatened to do so, which satisfied the statute. He also found that "defendant's conduct was totally unacceptable and designed for no other purpose than to intimidate, embarrass or annoy Officer Murphy in his own town." He stated that "it is an outrage for this defendant to call the police officer a liar at his place of employment." Thus, he concluded defendant was guilty as charged and assessed $408 in fines. Defendant sought de novo review in the Law Division.

The Law Division judge issued a decision on March 24, 2005, in which he found the facts and addressed each of the issues raised on appeal. With respect to the denial of the motion for a judgment of acquittal, he found that the evidence was sufficient to sustain a charge under N.J.S.A. 2C:33-4b. He also found that the evidence established guilt beyond a reasonable doubt, deferring to the municipal judge's credibility determinations. He then rejected defendant's claim that his conduct was no more than a de minimis infraction because he had been found guilty in the municipal trial.

The Law Division judge also found no error in the exclusion of defendant's expert testimony because the expert "would not be able to assist the court in either understanding the evidence or determining facts in issue." He found the municipal judge was not provided with sufficient authority to allow introduction of the tape and enhanced recording. Thus, the expert's testimony would not be helpful to the judge. Furthermore, the municipal judge had permitted defendant to call the expert, but he was not available on the third trial day. He concluded that defendant had sufficient time to call his expert and failed to do so. Last, the judge found no error in precluding defendant from calling Markheim, and he cured the failure of the municipal judge to arrange defendant's presence for sentencing.

On direct appeal, we affirmed the conviction. State v. Reshevsky, No. A-4381-04 (slip op. at 2) (App. Div. June 19, 2006). The only issue raised on appeal was "a claim that the assistance provided to defendant by his counsel was ineffective in that counsel failed to cite case law supporting the admission into evidence of an enhanced tape recording, which defendant contend[ed] would have impeached the credibility of the complaining officer." Ibid. We decided not to reach the issue of ineffective assistance of trial counsel because it had not been "previously presented to the municipal court [and] the record lack[ed] much of the information necessary to a full consideration of that contention." Id. at 5-6. We preserved the issue for post-conviction relief. Id. at 6.

Although defendant has not included his PCR petition in his appendix, contrary to Rule 2:6-1(a)(1), his petition was obviously timely because the hearing was conducted within five years of the April 1, 2005, judgment of conviction. The municipal PCR judge was not the municipal judge who tried the case nor were the prosecutor and defense counsel the same individuals.

First, the municipal PCR judge heard argument on the State's motion to dismiss the petition. Defendant urged that there was enough evidence in the record to enable the judge to conclude that had the trial judge heard the enhanced audiotape, he would have concluded that defendant was credible and Murphy was not. He further argued, "That's why we have to have a hearing, a hearing where Your Honor listens to the tape, where I lay the proper foundation. Your Honor hears the tape and then Your Honor makes a judgment as to whether or not you believe [defendant]." After hearing extensive argument on the motion, the municipal PCR judge reserved decision and issued an opinion on January 11, 2008.

In his written opinion the municipal PCR judge observed that at the end of the second day of trial, "the [c]court was prepared to listen to the enhanced tape and to permit the expert witness to testify." He noted, "It is also clear that the [c]court's doubts about admissibility focused not so much on the enhancement procedure, but upon the 'hurdle' of identifying the voices on an enhanced tape." He quoted the judge's ruling on the third trial date, where the judge stated in part, "'But you didn't provide me with any authority that says you can introduce an inaudible tape into evidence and then offer enhancement testimony, and that's what I'd ask for. So were your expert here today . . ., I was not prepared to allow him to testify.'" The municipal PCR judge then observed that the trial judge made strong credibility findings against defendant.

In addressing the first prong of Strickland,*fn3 the municipal PCR judge agreed with defendant that his counsel had not mentioned federal case law respecting enhanced audiotapes in the brief he submitted. However, he noted that the federal case law would not have addressed the trial judge's concern about the reliability of voice-identification testimony, an issue that went to the admissibility of the enhanced audiotape. As to that issue, he found that the defense attorney made the correct legal argument, but simply did not persuade the trial judge.

The municipal PCR judge also found that a second critical reason why the tape was not admitted into evidence was that the expert did not appear on the third trial day. It was after the colloquy regarding his absence that the trial judge ruled that the tape was inadmissible. The municipal PCR judge found that the trial judge "had the discretion to conclude the trial after three full days of testimony that took place over nine months on a complaint that was more than four years old when the expert did not appear on the second and third day of trial." He concluded that the trial judge's decision to end the trial was not the result of any ineffective assistance of counsel.

The municipal PCR judge then addressed Strickland's second prong, although he had "already . . . determined that counsel was not ineffective." He found that even if the expert testified and the enhanced tape was played, the trial judge was not prepared to accept defendant's testimony identifying the voices. He held that defendant had the burden to prove that the trial judge would have believed his identification of the voices on the tape and had not met that burden. In light of the credibility findings made by the trial judge, the municipal PCR judge concluded that "admission of the tape into evidence would [not] have changed the result." He also found that the tape would not have altered the outcome because the trial judge also found defendant guilty of threatening to strike, kick, shove, or engage in other offensive touching. The municipal PCR judge did not listen to the enhanced audiotape nor did he take any testimony from the expert.

The municipal PCR judge addressed defendant's second argument that the trial judge "erred in finding that the State proved harassment beyond a reasonable doubt" and his third argument that the enhanced tape was admissible. He found that both of these claims were raised during the municipal trial and again before the Law Division. He noted that we affirmed defendant's conviction*fn4 and these PCR claims were thus barred by Rule 3:22-5.

Last, the municipal PCR judge addressed defendant's motion to compel discovery. Specifically, defendant sought:

1. A copy of the State of New Jersey Law Enforcement Policy concerning the admission of enhanced audio-tapes [sic] into court proceedings.

2. Records concerning the actual use of such tapes in Bergen County from the Bergen County Prosecutor.

3. The policy of the Division of Criminal Justice regarding the admission of enhanced audio-tapes [sic].

4. A statement of the policy and practice of the Division of Criminal Justice relative to the use of enhanced audio-tapes [sic].

Noting that he had inherent authority to grant PCR discovery, the judge stated that it was "not a tool to exact a concession from opposing counsel on a point of law." He found the information would be of no assistance to defendant on his PCR petition and denied his request for discovery. On January 22, 2008, the judge entered an order denying discovery and dismissing the PCR petition.

Defendant appealed to the Law Division, and the matter was heard on July 30, 2008. The Law Division judge to whom it was assigned, like the municipal PCR judge, did not listen to the enhanced audiotape. In his July 30, 2008, opinion, the judge reached the following conclusions:

Having reviewed the briefs and heard oral argument relative to this matter, this [c]court concludes that defendant has failed to demonstrate that he is entitled to the post-conviction relief which he seeks. While this [c]court is mindful of its duty to conduct a de novo review, this [c]court finds that [the municipal PCR judge] conducted a thorough analytical review of the petitioner's claim of ineffective assistance of counsel. Hence for the reasons set forth in [his] comprehensive written opinion, and applying the legal standards set forth above, this [c]court similarly finds that petitioner has failed to establish that he was denied the right to effective assistance of counsel.

In his brief submitted to the municipal court, defendant also argued that the evidence adduced at trial did not support his conviction for harassment, and that the municipal trial court had erred in ruling that the enhanced tape was inadmissible.

Both of these issues had been raised in the trial de novo at the Superior Court level . . . . Both arguments were specifically rejected by [the Law Division trial judge] in his written decision filed on March 24, 2005. While petitioner subsequently appealed his conviction to the Appellate Division, the sole issue raised in that appeal was that trial counsel had been ineffective in failing to cite applicable case law supporting the admission into evidence of the enhanced tape recording. In so doing, petitioner failed to advance either of these other two issues. This [c]court finds that these issues were raised and adjudicated in the de novo Law Division trial and hence were clearly known and reasonably could have been raised in petitioner's direct appeal to the Appellate Division. Having failed to so raise them, this [c]court finds that these claims are procedurally barred by R. 3:22-4 and R. 7:10-2(d)(1).

An order was entered on July 30, 2008, and this appeal followed.

Defendant raises the following issues for our consideration:

POINT I - APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

I. The Roots of the Right to Effective Counsel and the Applicable Standard of Review

a. The Standards Set Forth in Cronic*fn5 and Strickland.

b. Counsel's Responsibility to the Accused.

c. Preparedness of Counsel is the Linchpin.

1. Consultations with the Accused.

2. Legal Research.

II. Counsel Was Clearly Ineffective

POINT II - THE PCR COURT ERRED IN ADOPTING THE MUNICIPAL COURT PCR DECISION DENYING THE PETITION ABSENT . . . HEARING THE TAPE AND THE PROFFERED TESTIMONY CONCERNING VOICE IDENTIFICATION.

POINT III - THE PCR COURT ERRED IN BARRING CONSIDERATION OF THE ISSUE CONCERNING WHETHER THE TRIAL COURT CORRECTLY RULED THAT THE STATE PROVED HARASSMENT BEYOND A REASONABLE DOUBT.

POINT IV - THE PCR COURT ERRED IN RULING THAT THE ISSUE AS TO THE ADMISSIBILITY OF ENHANCED AUDIO-TAPES [SIC] WAS EITHER PREVIOUSLY DECIDED OR SUSCEPTIBLE TO A BAR.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citations omitted), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (citation omitted). We review fact-findings for clear error and accord deference to credibility determinations. Ibid. (citation omitted). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citation omitted). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

Defendant first contends that trial counsel was ineffective for failing to demonstrate to the trial judge that enhanced audiotapes are routinely admitted into federal and state court proceedings, citing United States v. DiSalvo, 34 F.3d 1204, 1219 (3d Cir. 1994), and other cases. This is so because the enhancement process does not alter the conversation; it merely filters out background noises recorded contemporaneously with the conversation. He urges that the enhanced audiotapes were highly exculpatory and the exclusion of the tapes resulted in his conviction. He argues that failure to educate the trial judge on the law governing enhanced audiotapes was clearly ineffective assistance of counsel and that he would not have been convicted had the judge heard the enhanced tapes.

The State responds that defendant has not made out a prima facie showing that his trial counsel was ineffective because counsel cannot be deemed ineffective for failing to cite non-binding federal authority. "Furthermore, it bears emphasis that the proffered expert . . . could not identify the voices on the tape." It urges that the trial judge's refusal to accept counsel's argument that defendant could identify the voices does not render his performance ineffective. The State also urges that even if he did not actually poke Murphy, he could still have been convicted for threatening to do so, as he was, and that other evidence in the record supported that conviction. Finally, it points out that the trial judge did not find defendant credible.

The right to counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const. amend. VI, XIV; N.J. Const. art. I, § 10. In New Jersey, this guarantee requires not just the presence of an attorney, but the effective assistance of counsel. State v. Jack, 144 N.J. 240, 248 (1996). "[A] criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." State v. Fritz, 105 N.J. 42, 58 (1987).

To establish a prima facie claim of ineffective assistance of counsel, the defendant must meet the standard promulgated by the United States Supreme Court in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and adopted in New Jersey under Fritz, supra, 105 N.J. at 57-58. Whether the defendant's constitutional right to counsel has been abridged is "measured by applying a 'simple, two-part test.'" State v. O'Neal, 190 N.J. 601, 629 (2007) (quoting Fritz, supra, 105 N.J. at 52).

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]

To meet the first prong of the Strickland/Fritz test, a convicted defendant must identify acts or omissions by the trial counsel that were not the result of reasonable professional judgment. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002); Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. The defendant must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. A court analyzing a defendant's argument under this first prong "must give great deference to counsel's performance and must strongly presume that the attorney's conduct constituted reasonable professional assistance." Petrozelli, supra, 351 N.J. Super. at 21-22 (citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). The court should not review the attorney's performance with the benefit of hindsight, but rather should evaluate the conduct from the counsel's perspective at the time. Id. at 22 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). This prong requires the court to determine whether counsel's acts or omissions, in light of the existing circumstances, were squarely outside the ambit of professionally competent assistance. Ibid. Consequently, informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. Petrozelli, supra, 351 N.J. Super. at 22 (citing Strick- land, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695).

If the court finds that counsel's errors were significant enough to meet the first prong of Strickland/Fritz, the defendant must then demonstrate that the error was "prejudicial to the defense." Strickland, supra, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed. 2d at 696. "[T]he defendant must show that 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." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The burden of proof rests "squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.) (quoting Fritz, supra, 105 N.J. at 60-61), certif. denied, 130 N.J. 17 (1992). The reviewing court "should presume . . . that the judge or jury has acted according to the law." Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). Thus, relief should only be granted where a defendant demonstrates that counsel's error is "so serious as to undermine the court's confidence in the jury verdict or the results reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).

When an attorney is instructed by a judge to brief a particular issue of law, here the admissibility of enhanced audio-tapes, and fails to do so, his performance is clearly ineffective. See Morgan v. Zant, 743 F.2d 775, 780-81 (11th Cir. 1984) (appellate counsel's conduct was "woefully inadequate and likely ineffective" in failing to obey court's request to file a supplemental brief on an issue), overruled in part on other grounds, Peek v. Kemp, 784 F.2d 1479, 1494 n.15 (11th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed. 2d 371 (1986); Johnson v. United States, 506 F.2d 640, 646 (8th Cir. 1974) (professional competence includes "urg[ing] such arguments on a client's behalf as are indicated by the evidence, or lack of evidence, adduced"), cert. denied, 420 U.S. 978, 95 S.Ct. 1404, 43 L.Ed. 2d 659 (1975). The trial judge specifically ruled on the third day of trial, "'But you didn't provide me with any authority that says you can introduce an inaudible tape into evidence and then offer enhancement testimony, and that's what I'd ask for. So were your expert here today . . ., I was not prepared to allow him to testify.'" Thus, the expert's testimony and the enhanced audiotape were excluded because counsel did not brief the issue of their admissibility.

Case law clearly establishes the admissibility of enhanced audiotapes which render inaudible portions of tapes audible by filtering out background noises. United States v. Calderin- Rodriguez, 244 F.3d 977, 986-87 (8th Cir. 2001); United States v. Quintero, 38 F.3d 1317, 1326-30 (3d Cir. 1994), cert. denied, 513 U.S. 1195, 115 S.Ct. 1263, 131 L.Ed. 2d 142 (1995); DiSalvo, supra, 34 F.3d at 1220; United States v. Vastola, 915 F.2d 865, 869-70 (3d Cir. 1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed. 2d 1178 (1991); United States v. Arango-Correa, 851 F.2d 54, 58-59 (2d Cir. 1988). Our Rules of Evidence were modeled on the federal rules and, although these federal cases are not binding in a state-court proceeding, they are nonetheless persuasive authority. Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 102 (2010) ("[F]ederal decisions under comparably worded evidence rules may be persuasive authority."). Had the trial judge been made aware of this case law, surely his concerns about the admissibility of the expert testimony and the enhanced audiotape would have been allayed. If not, the issue could have been determined on direct appeal. In any event, defendant has made out a prima facie claim of ineffective assistance of counsel.

We turn to the PCR judges' reliance on the credibility of voice-identification testimony. The trial judge did not exclude the evidence because he was concerned about the reliability of voice-identification testimony, although he expressed doubts about it. The judge clearly could not and did not rule on the reliability of testimony he had yet to hear. So his concerns in that respect are irrelevant to the first prong of Strickland, and both PCR judges erred in relying on these concerns to conclude that a prima facie showing had not been made. Initial doubts about the persuasive value of evidence can surely be allayed by consideration of the evidence itself.

On this score, we note that a thoughtful consideration of the original entire tape recording of the proceedings in the Alpine municipal court on August 16, 2000, commencing with the trial of defendant's traffic offense to the end of the tape may well have allowed the judge, without any voice-identification testimony, to recognize the voices of Murphy and the prosecutor. Murphy testified on several occasions during the course of two trials. The prosecutor directly examined him and other witnesses, cross-examined others, and repeatedly addressed the judge. Additionally, the content of the whispered conversations is circumstantial evidence of the identity of the parties to them. Defendant's testimony, even if it was generally not credible, may have mattered little in identifying the parties to these conversations.

Both judges also erred in relying on the expert's inability to attend trial on the third day as a basis for concluding that trial counsel was not ineffective. Although it is true that the trial judge had the discretion to bring the proceedings to an end, he never invoked that discretion to bar the testimony of the expert simply because the expert was not in court on the third trial day. Rather, he concluded the proceedings only after he had determined he would not allow the expert to testify because counsel had not provided him with a brief establishing the admissibility of expert testimony on enhanced audiotapes and the tapes themselves. By doing so, what he was barring was a belated brief and a request to reopen testimony.

Having said all this, it is clear that defendant made out a prima facie case on the first prong of ineffective assistance of trial counsel, and we must consider the second. This requires defendant to "show that 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." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.

The municipal PCR judge determined that defendant failed to carry his burden of proof on the second prong because the judge was not prepared to accept defendant's testimony identifying the voices. He concluded that the tape would not have made a difference because of the credibility findings made by the trial judge. Further, the trial judge found defendant guilty of threatening to strike, kick, shove, or engage in other offensive touching and thus proving that no actual contact occurred would not have made a difference. The Law Division PCR judge adopted these findings.

We cannot agree that the admission of the enhanced audio-tape and the expert's testimony respecting same would not have made a difference. In deciding this issue under the second prong of Strickland, the PCR judge is required to examine the evidence admitted during the course of the trial and then examine the evidence that would have been presented had counsel not been ineffective. Then the PCR judge must determine whether the excluded evidence would have likely made a difference in the outcome of the trial.

The outcome of this trial was largely determined by the credibility of the witnesses, especially Murphy. Markheim and Hanna both testified that they did not see defendant touch Murphy. This was the single most important fact supporting the conviction of defendant, and only Murphy testified to it. If the prosecutor asked Murphy if defendant poked him, and Murphy replied that he did not, then Murphy by his own whispered admission lied under oath when he testified that defendant poked him repeatedly. Viewed from the perspective of a reasonable finder of fact,*fn6 that evidence might well have been devastating to Murphy's credibility and led to an acquittal, even of the charge of threatening to engage in offensive touching. State v. Segars, 172 N.J. 481, 489-99 (2002). We are satisfied that defendant made a prima facie showing under the second prong of Strickland.

As a result, this matter is remanded to the Law Division for a plenary hearing at which the PCR judge shall listen to the tape recording of the August 16, 2000, trial; hear testimony from defendant's expert and trial counsel; listen to the enhanced tape recording of the August 16, 2000, trial; and hear testimony from defendant if the issue of voice identification requires such testimony. The judge shall then make findings of fact and conclusions of law and either order a new trial or deny defendant's PCR petition.

Defendant also argues that the PCR judges erred in refusing to consider whether the trial court correctly ruled that the State proved harassment beyond a reasonable doubt. He urges that the evidence does not support a finding beyond a reasonable doubt that it was his "conscious objective" to annoy, citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). The municipal PCR judge concluded that Rule 3:22-5 barred this claim because we affirmed defendant's conviction on appeal. The Law Division PCR judge agreed and found this claim barred by Rules 3:22-5 and 7:10-2(d)(1).

Generally Rules 3:22-5 and 7:10-2(d)(1) would bar this claim. However, if the Law Division PCR judge on remand decides that the conviction should be set aside based on ineffective assistance of counsel, then the judge must address this issue. If the evidence is insufficient as a matter of law to establish the requisite mens rea, then defendant will be entitled to a judgment of acquittal rather than a new trial.

Defendant also contends that the PCR judge must determine whether the trial judge erred as a matter of law in refusing to admit the enhanced audiotape and the expert's testimony. This is an issue that could and should have been raised on direct appeal and is barred by Rules 3:22-5 and 7:10-2(d)(1). This issue may only be considered in the guise of a claim of ineffective assistance of appellate counsel, which was not made here.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.


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