Evidence of Ineffective Assistance: N.J. Court Finds Counsel Inadequate for Failing to Brief Admissibility of Enhanced Audiotape

In State v. Reshevsky, --- A.2d ----, 2010 WL 3075483 (N.J. Super. A.D. Aug. 9, 2010), the Superior Court of New Jersey, Appellate Division heard an appeal for post-conviction relief based on a claim of ineffective assistance of trial counsel.

The case arose from a traffic court hearing at which defendant was found guilty of running a red light.  After the trial, defendant said, "You lied" to Police Officer Denis Murphy, who had testified against him.  In the hallway outside the courtroom, Murphy arrested Reshevsky for harassment, alleging that Reshevsky poked him repeatedly in the chest, which Reshevsky denied.  Following the arrest, Reshevsky was led away by a different officer, and Murphy returned to testify in other traffic trials.  While back in the courtroom, Murphy chatted with the prosecutor about Reshevsky and their hallway interaction.  Portions of this conversation were taped by the court reporter.

At the harassment trial, the court heard the audiotape, substantial portions of which were inaudible.  Reshevsky sought to introduce an enhanced version of the tape, along with expert testimony about the enhanced tape.  He claimed that the enhanced tape proved that Murphy admitted to the prosecutor immediately after the arrest that Reshevshy had not poked him.  The trial judge sought briefing on the admissibility of such a tape, which defense counsel did not provide.  Eventually, the trial court declined to hear the enhanced tape and found Reshevshy guilty of harassment.  Reshevshy sought post-conviction relief, asserting that his trial counsel was ineffective.

To win his ineffective assistance of counsel argument, Reshevshy needed to satisfy the two-pronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 688 (1984):

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.

466 U.S. at 687.  The questions in Reshevshy are (1) whether trial counsel was deficient in not winning admissibility of the enhanced audiotape  (or at least trying more effectively) and (2) whether, if ineffective, trial counsel's deficiency prejudiced Reshevshy's defense.

The appellate court found that Reshevshy made out a prima facie claim for both prongs of Strickland.  First, enhanced audiotapes are commonly admitted in New Jersey courts and in federal courts.  Second, because the enhanced tape captures Murphy replying, "No, but he was a pain" when the prosecutor asked if defendant poked him, Reshevshy, at 8, counsel's failure to get the tape into evidence prejudiced Reshevshy's case, which hinged on the claim that the officer is a liar.

The court explained:

When an attorney is instructed by a judge to brief a particular issue of law, here the admissibility of enhanced audiotapes, and fails to do so, his performance is clearly ineffective. ... 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.

Id. at 26 [pin cites refer to the PDF of the opinion].  The court added, "Case law clearly establishes the admissibility of enhanced audiotapes which render inaudible portions of tapes audible by filtering out background noises. ... 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."  Id. at 27.

The court noted too that although the bulk of the relevant decisions appeared in federal cases, New Jersey's "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."  Id.

Reshevshy, arrested at the traffic court in August 2000, will now have another day in court.

  - Ben Trachtenberg