Opinion
DOCKET NO. A-5107-13T2
04-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY A. WHYE, a/k/a TROY BAKER, a/k/a TYRONE BAKER, a/k/a JONATHEN RUSSELL, a/k/a JONATHEN R. RUSSELL, a/k/a JONATHAN RUSSELL, a/k/a TROY WHSE, a/k/a TROY WHYE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John, Guadagno, and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-10-3243. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Troy A. Whye appeals from a judgment of conviction for murder, weapons offenses, and endangering the welfare of a child after a jury trial. We reverse and remand for a new trial.
I.
We glean the following facts and procedural history from the record. On March 26, 2008, Lindenwold Township police officers found the body of K.S. in a large pool of blood on the floor of her apartment. Seated beside her was two-year-old Justin, the son K.S. shared with defendant. It was later determined by the medical examiner that K.S. had sustained thirty stab wounds, some of which resulted in injuries to her left lung, small intestine, and neck that caused her death.
We elect to use a fictitious name for the child to preserve his privacy.
The officers removed Justin from the scene. He was upset, shaking, and cursing and yelling statements such as "Troy hit my face" and "Troy hit my mom's face." Justin also made stabbing motions with a pen, while repeating "Troy, Troy, Troy."
The officers sought to speak with defendant, who had been in an intermittent relationship with K.S. during the prior five years. On March 31, 2008, defendant was taken into custody.
Defendant was subsequently charged in an indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four). After a November 2010 jury trial, defendant was found guilty of all of the charges and was sentenced.
We reversed defendant's convictions on appeal and remanded for a new trial because the trial court failed to instruct the jury on the lesser included offense of passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). State v. Whye, No. A-3910-10 (App. Div. Apr. 26, 2013).
The State's case during the retrial was founded primarily upon the testimony of defendant's niece, the maintenance employee at K.S.'s apartment complex, and the statements attributed to Justin by the officer who removed the child from the scene. Defendant's niece described K.S.'s actions, defendant's interactions with K.S., and defendant's statements and conduct regarding K.S. during the days leading up to the discovery of K.S.'s body. The maintenance employee testified that he observed defendant in the parking lot of the apartment complex on the day of K.S.'s murder.
Defendant testified during the retrial. He refuted the testimony of his niece, explained his presence at K.S.'s apartment complex on the day she was murdered, and denied any involvement in the murder. During direct examination he was asked whether he had expressed anger towards K.S. during an altercation, and he responded by stating, "No, never have. I never put my hands on [K.S.]." He was later asked if he stabbed K.S. and said, "No, I didn't. I never put my hands on [K.S.]."
Prior to the commencement of the State's cross-examination of defendant, the assistant prosecutor advised the court that during defendant's first trial there had been hearings regarding "prior acts of domestic violence that . . . defendant . . . committed against" K.S. and that the judge in the first trial barred the use of the evidence during the State's case. The record reflects that at a January 12, 2010, hearing prior to defendant's first trial, the assistant prosecutor stated that she had provided defendant with documents regarding prior domestic violence incidents between defendant and K.S. The assistant prosecutor also said she did not intend to use the "evidence as prior bad acts evidence" but "want[ed] to put the defendant on notice that should he open the door to the use of any of [the] information, the State plan[ned] to use it." Defendant, who then appeared pro se, acknowledged receipt of the documents.
Based upon the record provided on this appeal, during defendant's first trial the court did not conduct a N.J.R.E. 104 hearing on the admissibility of any putative N.J.R.E. 404(b) evidence.
At defendant's retrial, the assistant prosecutor argued that defendant's testimony that he "never put [his] hands" on K.S. "opened the door sufficiently" to cross-examination about the prior acts of domestic violence. Defense counsel acknowledged receipt of the records regarding the prior acts of domestic violence but objected to the State's proposed cross-examination, arguing that defendant had not opened the door regarding those events. Counsel also argued that defendant had not been convicted of any criminal offenses as a result of the alleged domestic violence and could not properly be cross-examined on allegations that did not result in convictions. The assistant prosecutor asserted that a temporary domestic violence restraining order (TRO) had been entered against defendant, he had been served with it, and he "violated it three days later."
The judge permitted the assistant prosecutor to "go into this by way of cross-examination" based upon his finding that defendant had "opened the door" by testifying that he had never put his hands on K.S. Defense counsel inquired as to how the State intended to prove the alleged actions of defendant because any prior statement of K.S. constituted inadmissible hearsay. The court then asked the assistant prosecutor if she intended to ask defendant "whether TRO's were issued and . . . was he served, and was there a subsequent violation." The assistant prosecutor confirmed she intended to proceed in that manner and stated that she also had a witness to defendant's violation of the TRO the State could call in rebuttal.
The assistant prosecutor then cross-examined defendant as follows:
Q. Mr. Whye, you just told this jury not once, but twice, that you never put your hands on . . . [K.S.], didn't you?
A. Yes.
Q. And that's not true, is it?
A. It is true.
Q. Sir, do you recall when the two of you lived back together [on] Chesapeake Road?
A. Yes.
Q. And at some point did the police have to become involved in your relationship?
A. Yes.
Q. Because [K.S.] called the police on you, correct?
A. Yes.
Q. And isn't the reason she did that because you pulled her out of her car by her legs?
A. I pulled her out by her legs?
Q. Yes.
A. No, I didn't pull her out by her legs.
Q. Did you put your hands on her that day?
A. No, I didn't.
After defendant denied pulling K.S. "out by her legs" and putting his "hands on her," the cross-examination continued regarding the TRO and defendant's alleged violation of it.
Q. As a result of that incident in which the police were notified, was a [TRO] issued against you?
A. Yes, it was.
Q. And you were served with that, correct?
A. I believe so, I'm not 100 percent sure.
Q. Well, you must have received it to know about it right?
A. I learned about it later on. I wasn't served I don't think at the time.
Q. Well, you were served over the phone by the detective, correct, you were advised of it?
A. I'm not sure. Over the phone? I'm not sure.
Q. But you knew that a restraining order, a [TRO] had been granted in her favor against you, correct?
Defense counsel objected to the "line of questioning." The assistant prosecutor responded that she intended only to establish that defendant was aware of the restraining order. The court permitted the assistant prosecutor to continue.
Q. Mr. Whye, you are aware that there was a [TRO], correct?
A. Not at the time of the offense.
Q. No, I'm not talking about on the day of the incident where the police came out. I'm talking about after that. At some point you became aware that there was a [TRO], correct?
A. Yes.
Q. And a [TRO] tells you that you're not allowed to go near a person or their home or maybe even their employment, is that right?
A. Yes.
Q. You're familiar with that?
A. Yes.
Q. And isn't it true that just two days later you were back at the house on Chesapeake Avenue waiting for [K.S.]?
A. You've got the story wrong. I was living at the house on Chesapeake. [K.S.] moved to her mom's house.
Q. Well, to your knowledge, were the police called again on March the 8th of 2006, two days after the initial incident?
A. Not to my - - not to my knowledge.
Q. Not to your knowledge?
A. No.
Q. Sir, were you ever served with any charges for contempt of a restraining order?
A. I don't remember that.
Q. You don't remember it?
A. That's like six, eight years ago.
Q. If you had an opportunity to review the police reports, would that refresh your recollection?
A. Absolutely.
Q. Okay. Why don't you take a minute and read that over and look up at me when you're done.
A. All right.
. . . .
Q. Did you have enough time to review that?
A. Yes.
Q. Okay. And does that refresh your recollection about the incident that occurred on March 8th of 2006?
A. Yes, somewhat, yes.
Q. . . . And, in fact, you were charged that day with violating the restraining order, correct?
A. Yes.
The State did not present any evidence that defendant "put his hands on" K.S. prior to her murder, and did not call any rebuttal witnesses after defendant testified.
Defendant was found guilty of all of the offenses charged in the indictment. At sentencing, the court merged count two with count one and imposed a life sentence on count one with the requirement that defendant serve eighty-five percent of the sentence without eligibility for parole and a five-year period of parole supervision after his release from incarceration pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was sentenced to a concurrent eighteen-month custodial term on count three and a consecutive seven-year custodial term on count four. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I:
THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT CONTAINED FLAGRANT VIOLATIONS OF THE PROHIBITION AGAINST EVIDENCE OF PRIOR BAD ACTS IN N.J.R.E. 404(b). THESE PATENT IMPROPRIETIES CONSTITUTED PROSECUTORIAL MISCONDUCT, AND WERE HIGHLY PREJUDICIAL, NECESSITATING REVERSAL. U.S CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
A. The State Improperly Cross-Examined Mr. Whye Regarding An Alleged Prior Restraining Order.
B. The State Violated N.J.R.E. 404(b) By Interjecting Highly Prejudicial Rumors Of Unrelated And Irrelevant Prior Bad Acts.
C. The Noted Violations Constitute Prosecutorial Misconduct, Necessitating Reversal.
POINT II:
THE TRIAL COURT ERRED IN PERMITTING TOO MUCH HEARSAY TESTIMONY BEFORE THE JURY, INCLUDING PERMITTING THE JURY TO HEAR ALLEGED COMMENTS MADE BY A TWO-YEAR-OLD CHILD. (PARTIALLY RAISED BELOW).
POINT III:
THE UNLAWFUL POSSESSION-OF-THE-WEAPON COUNT SHOULD HAVE MERGED INTO THE GREATER OFFENSE.
POINT IV:
MR. WHYE'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
II.
We first turn our attention to defendant's contention that the court erred by permitting the assistant prosecutor to cross-examine defendant regarding a TRO which had been entered against defendant at K.S.'s request and defendant's alleged violation of the TRO. Defendant argues the testimony was inadmissible under the opening the door doctrine and N.J.R.E. 404(b) and was highly prejudicial, thereby requiring reversal of his conviction.
"A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). Under this standard, the trial court's decision to allow evidence should not be overturned "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted." State v. Lykes, 192 N.J. 519, 534 (2007) (alteration in original) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)). If the trial court does not determine the admissibility of evidence under the correct legal standard, however, its decision is not afforded any deference and we review the issue de novo. State v. Reddish, 181 N.J. 553, 609 (2004).
The court permitted defendant's testimony regarding the TRO based on its finding that defendant had opened the door by testifying that he had never put his hands on K.S. "[T]he '"opening the door doctrine" is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection.'" State v. Vandeweaghe, 177 N.J. 229, 237 (2003) (quoting State v. James, 144 N.J. 538, 554 (1996)). "The doctrine 'allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence.'" Id. at 237-38 (quoting James, supra, 144 N.J. at 554).
The opening the door doctrine "has its limitations." State v. B.M., 397 N.J. Super. 367, 381 (App. Div. 2008) (quoting James, supra, 144 N.J. at 554). Evidence admitted under the doctrine "can be used only 'to prevent prejudice,' and may not 'be subverted into a rule for [the] injection of prejudice.'" Vandeweaghe, supra, 177 N.J. at 238 (quoting James, supra, 144 N.J. at 556). Evidence that is otherwise inadmissible may be admitted under the doctrine, but "only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence." Ibid. (quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)). Moreover, such evidence is also subject to exclusion under N.J.R.E. 403 where its probative value "is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." B.M., supra, 397 N.J. Super. at 381 (quoting James, supra, 144 N.J. at 554).
Here, we are convinced the State's questioning of defendant regarding the TRO exceeded the bounds permitted under the opening the door doctrine. Defendant's testimony that he had never put his hands on K.S. opened the door to cross-examination and the introduction of other evidence establishing that he had previously assaulted or touched K.S. inappropriately or in an offensive manner.
On cross-examination, the State asked about whether defendant had ever put his hands on K.S., inquiring whether he had pulled K.S. out of an automobile "by her legs" during an incident in 2006. After defendant denied doing so, the cross-examination devolved into areas wholly unrelated to the subject about which defendant had opened the door.
Defendant was asked about whether K.S. had called the police on him in 2006, whether he knew that a TRO "had been granted in [K.S.'s] favor against [him]," whether he had been served with the TRO, and whether he understood that under the TRO he was "not allowed to go near a person or their home, or maybe their employment." In response to the State's final question regarding the TRO, defendant was compelled to acknowledge that he was "charged with violating the restraining order."
None of the State's questions about the TRO called for responses about whether defendant had previously put his hands on K.S. The State did not present evidence contradicting defendant's testimony, and did not call the rebuttal witness it advised the court was available to contradict defendant's testimony. We are therefore convinced the court abused its discretion by permitting cross-examination about the TRO under the opening the door doctrine because the questioning far exceeded the bounds necessary to address defendant's testimony that he had never put his hands on K.S. Vandeweaghe, supra, 177 N.J. at 238; B.M., supra, 397 N.J. Super. at 381.
For the same reasons, we reject the State's contention that the evidence was admissible to impeach defendant. The cross-examination regarding the issuance of the TRO, whether defendant was served with it, and whether he was charged with violating it was unrelated to defendant's testimony that he had never put his hands on K.S.
We are not persuaded by the State's contention that State v. Duprey, 427 N.J. Super. 314 (App. Div. 2012), requires a different conclusion. In Duprey we held that a defendant who testified during a criminal trial could be properly cross-examined about contradictory testimony he gave during a domestic violence trial arising out of the same incident. Id. at 325. We concluded that "if a defendant should falsely testify about a matter to which the State has contrary evidence, then the State need not sit idly by." Id. at 324 (quoting State v. Burris, 145 N.J. 509, 530-31 (1996)).
Duprey permitted the introduction of testimony given by the parties at a prior domestic violence hearing for the purposes of impeachment. Duprey, supra, 427 N.J. Super. at 325. Here, there is no evidence that a domestic violence hearing occurred after the issuance of the TRO, or that defendant's contempt arrest was ever resolved. Thus, the questioning of defendant on the mere issuance of the TRO and his arrest for contempt was improper.
The State's questioning of defendant regarding the 2006 TRO was on subjects unrelated to whether defendant had previously put his hands on K.S. Defendant's testimony did not have "a tendency in reason to prove or disprove any fact of consequence to the determination" of his credibility, and therefore was not properly admitted for impeachment purposes. N.J.R.E. 401; see State v. Foglia, 415 N.J. Super. 106, 124-27 (App. Div.) (finding "no basis . . . in our evidence rules" for the introduction at trial of specific instances of defendant's conduct which are irrelevant to a material issue), certif. denied, 205 N.J. 15 (2010).
We consider the admission of defendant's testimony under the harmless error rule because defense counsel objected to the State's cross-examination. "The harmless error standard . . . requires that there be 'some degree of possibility that [the error] led to an unjust [verdict]. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (second and fourth alterations in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
The State did not present any direct evidence of defendant's guilt and there was no physical or forensic evidence establishing his guilt. The State's case was dependent upon the credibility of defendant's niece, the maintenance person at K.S.'s apartment complex, and the statements attributed to defendant's two-year-old son. Where, as here, the defendant also testified, the determination of defendant's guilt was founded solely upon the jury's credibility determinations. See State v. Frisby, 174 N.J. 583, 596 (2002) (finding that where a case turns on credibility determinations "[a]ny improper influence on the jury that could have tipped the credibility scale was necessarily harmful and warrants reversal"); Foglia, supra, 415 N.J. Super. at 127 (finding where "there were no eyewitnesses to the murder except defendant, the jury's assessment of his credibility was critical").
Based upon the record, we are convinced that the prejudice resulting from the introduction of the challenged evidence substantially outweighed its non-existent probative value. Defendant's testimony regarding the 2006 TRO was highly prejudicial because it showed defendant had a propensity for violence toward K.S., the person he was accused of murdering. See State v. Chenique-Puey, 145 N.J. 334, 343 (1996) (finding introduction of evidence about a prior domestic violence restraining order obtained against defendant by the same victim of the crime for which defendant is being tried unduly prejudiced defendant by creating the inference the defendant was more likely to have committed the crime charged). The testimony revealed that K.S. had previously "called the police on" defendant because he had committed an act of domestic violence against her, established that a TRO had been entered against defendant in K.S.'s "favor" as a result of an alleged act of domestic violence, and showed that a court issued an order restricting defendant's access to K.S. based on an alleged act of domestic violence. The testimony further confirmed that defendant was aware the restraining order prohibited him from having any contact with K.S. and that he was "charged with violating" the order.
The evidence was also inadmissible under N.J.R.E. 403, which bars the introduction of evidence "if the risk of undue prejudice substantially outweighs its probative value." Reddish, supra, 181 N.J. at 608.
The potential prejudice to defendant was exacerbated by the lack of evidence regarding the status of the TRO during the days leading up to K.S.'s murder. The jury heard evidence regarding defendant's interactions with K.S., his attempts to contact her by telephone, and his appearance at her apartment. Admission of defendant's testimony regarding the TRO permitted the inference that defendant engaged in that conduct knowingly in violation of a court ordered TRO.
Because the State's cross-examination of defendant regarding the TRO was not justified under either the opening the door doctrine or for impeachment purposes, was highly prejudicial to defendant, and the determination of defendant's guilt turned solely upon issues of credibility, we are convinced there is a reasonable doubt as to whether the error in admitting defendant's testimony led the jury to a verdict that it might have not reached otherwise. R.B., supra, 182 N.J. at 330. We therefore are constrained to reverse defendant's conviction and order a new trial.
We also consider defendant's contention that his testimony was inadmissible under N.J.R.E. 404(b) and the State's argument that defendant was not prejudiced by the introduction of the evidence because the court instructed the jury regarding the permissible uses of defendant's prior convictions. The State did not argue before the trial court, and does not contend here, that defendant's testimony regarding the TRO was admissible under N.J.R.E. 404(b), and the record did not support admission of the evidence under N.J.R.E. 404(b). The State argues only that the evidence was admissible because defendant opened the door and for impeachment purposes. As noted, we reject the State's contention that the evidence was admissible for either purpose.
If the admission of N.J.R.E. 404(b) evidence becomes relevant during trial, the court is expected to hold a N.J.R.E. 104 hearing to consider the factors established in State v. Cofield, 127 N.J. 328, 338 (1992). See, e.g., State v. Copling, 326 N.J. Super. 417, 436 (App. Div. 1999) (trial court ruling on admissibility under Cofield test when defense counsel objected during trial), certif. denied, 164 N.J. 189 (2000). No such hearing was held here. As the State concedes, and our independent review of the record confirms, defendant's testimony regarding the TRO did not satisfy any of the Cofield factors and therefore was inadmissible as N.J.R.E. 404(b) evidence.
We do not suggest that had defendant's testimony been admissible either under the opening the door doctrine or for purposes of impeachment it would have necessarily been admissible under N.J.R.E. 404(b).
N.J.R.E. 404(b) "serves as a safeguard against propensity evidence that may poison the jury against a defendant." State v. Skinner, 218 N.J. 496, 517 (2014). "Other crimes evidence is considered highly prejudicial." State v. Vallejo, 198 N.J. 122, 133 (2009). "The underlying danger of admitting other-crime [or bad-act] evidence is that the jury may convict defendant because he is 'a "bad" person in general.'" Cofield, supra, 127 N.J. at 336 (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). "For that reason, any evidence that is in the nature of prior bad acts, wrongs, or, worse, crimes by a defendant is examined cautiously because it '"has a unique tendency"' to prejudice a jury." Skinner, supra, 218 N.J. at 514 (quoting Reddish, supra, 181 N.J. at 608). Because of its "unique tendency to turn a jury against the defendant," the "probative value [of N.J.R.E. 404(b) evidence] must not be outweighed by the prejudice resulting from its introduction." Reddish, supra, 181 N.J. at 608 (first quoting State v. Stevens, 115 N.J. 289, 302 (1989); then citing Cofield, supra, 127 N.J. at 338).
Because defendant did not open the door to his testimony regarding the TRO and the State could not properly cross-examine him about it, his testimony was not relevant to any material issue but improperly permitted the jury to infer that he had a propensity to commit violence against the victim of the murder charged in the indictment. Vallejo, supra, 198 N.J. at 133-34. "That is precisely the sort of reason for which N.J.R.E. 404(b) evidence cannot be introduced." State v. Carlucci, 217 N.J. 129, 143 (2014).
In addition, we have carefully considered the evidentiary record and are not convinced there was "overwhelming proof" of guilt submitted by the State sufficiently "independent of the other-crimes evidence" to permit a conclusion that the error in the admission of the N.J.R.E. 404(b) evidence was harmless. State v. Gillispie, 208 N.J. 59, 93 (2011 ); see also State v. Darby, 174 N.J. 509, 520 (2002) (noting that other-crime evidence is generally not admissible solely to affect credibility); State v. Hutchins, 241 N.J. Super. 353, 360 (App. Div. 1990) ("[W]here defendant's case rests upon his credibility, admission of testimony or the posing of questions concerning defendant's prior arrests, constitutes plain error and requires reversal of the conviction, and a new trial."). But see State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (holding that hearsay testimony that the defendant was involved in a robbery was harmless error in view of the other proofs establishing guilt), certif. denied, 170 N.J. 209 (2001).
The admission of the testimony was also unaccompanied by any jury instruction regarding the putative purpose of its admission and the requirement that it be used solely for that purpose. See Vallejo, supra, 198 N.J. at 134-135 ("This Court has consistently stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial."). "Thus, without any guidance, the jury was free to utilize the testimony for . . . impermissible purpose[s]" such as finding that defendant was a "bad person" or that he had a propensity to commit acts of violence against K.S. Foglia, supra, 415 N.J. Super. at 128. As a result, we are satisfied that there exists a reasonable doubt that admission of defendant's testimony may have led the jury to reach a verdict it may not have otherwise reached. Ibid.
We reject the State's contention that the court's instruction regarding the permissible use of the evidence about defendant's prior convictions was sufficient to address the improper admission of defendant's testimony regarding the TRO. The instruction specifically addressed the evidence regarding defendant's prior convictions, was not applicable to the evidence about the TRO, and therefore could not have been logically understood to be applicable to the TRO evidence. We also reject the State's contention that defense counsel's failure to request a jury instruction permits an affirmance of defendant's conviction because the absence of any instruction regarding the use of the evidence was clearly capable of producing an unjust result. R. 2:10-2; State v. Burns, 192 N.J. 312, 341 (2007). --------
Our determination that defendant is entitled to a new trial based upon the error in admitting evidence regarding the TRO renders it unnecessary to address any of the other issues raised by defendant on appeal.
Reversed and remanded for a new trial. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION