State v. Reynaldo Chavis, unpublished opinion, App. Div. Docket No. A-6326-06T4 (June 28, 2010) – “Because a sketch of the scene of a different homicide apparently was appended to a photograph and admitted into evidence over defendant’s objection, we conclude that the trial judge erred in dismissing defendant’s claim of ineffective assistance of counsel without a hearing.
Accordingly, we remand for further proceedings…. It may well be that the assistant prosecutor assigned to try this case understood her obligation to present only admissible evidence and effectively removed the sketch before the photograph was submitted to the jury. But nothing in this record gives rise to that inference….
Without evidence outside the trial record, such as a certification from one or both of the trial attorneys attesting to the removal or the production of the photograph submitted to the jury, the judge’s factual finding has no support. There is no question that admission of a wholly irrelevant sketch of an unrelated homicide scene raises a serious question about the validity of defendant’s conviction….
In this case, the abuse of discretion is palpable…. We have no question that defendant presented a prima facie case of deficient performance by appellate attorney for failure to raise an issue of this magnitude and resulting prejudice. Accordingly, we must remand to permit the trial judge to develop a record and make findings of fact supported by competent evidence before resolving this claim. The judge’s decision suggests that he believed that defendant was required to establish prejudice by showing that the jurors viewed the sketch during deliberations. We disagree.”