Opinion
DOCKET NO. A-3910-10T3
04-26-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY A. WHYE, a/k/a JONATHEN RUSSELL, JONATHEN R. RUSSELL, TYRONE BAKER, JONATHAN RUSSELL, TROY WHSE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). Appellant Troy A. Whye filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti, and Harris.
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 (Michael Confusione, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
Appellant Troy A. Whye filed a pro se supplemental brief. PER CURIAM
Following a trial by jury, then-self-represented defendant Troy A. Whye was convicted of four crimes: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Whye appeals from the January 31, 2011 judgment of conviction and aggregate sentence (life imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, plus seven years). We reverse and remand for a new trial on all charges.
I.
The homicide victim in this case was Krystal Skinner, Whye's on-again-off-again paramour, and mother of Whye's then-two-year-old son, Justin. Whye's nieces — Asenith Whye and Lashanda Whye — who were friends with Skinner, testified that Skinner had been having arguments with Whye just prior to her death. There were "problems in the relationship," including indications that Skinner wanted to change the locks on her apartment and did not want Whye coming there. According to Asenith, Whye told her that he believed Skinner was "messing around on him with someone else."
We elect to use a fictitious name for the child to preserve his privacy.
On Monday, March 24, 2008, Whye brought Justin to Asenith's home so she could babysit. Skinner did not know Justin had been left with Asenith until Skinner and Asenith spoke during that day. Skinner said she would pick Justin up during the evening, after she took a scheduled test at school. Coincidentally, Whye arrived at Asenith's dwelling prior to Skinner.
When Skinner came to Asenith's apartment later that evening, she "storm[ed] towards [Whye's] car . . . like she was very upset about something." As Skinner approached, she said,
Troy, you better stay away from me. You better not come to my house. If you come to my house, I'm going to call the F'ing cops. You hear me? You better not come to my house 'cause I'm going to call the cops on you.Skinner then "took the baby and went and got in her car," and drove off.
Whye also left the apartment, but returned to Asenith's home later, acting out of character, according to Asenith: "pacing back and forth, walking around. Like, you could tell he had a lot on his mind. Something was on his mind." Whye asked Asenith to talk to Skinner, saying:
She's doing something. [If] she keep[s] acting like that, she['s] going to make me kill her. She's getting on my nerves. Just talk to her. I'm having thoughts — I'm having thoughts in my head. You go to church, so start praying for me. Pray for me when you go to church.
The next morning around 11:00 a.m., Skinner and Asenith spoke by telephone. They made plans to change the locks on Skinner's apartment. Skinner was going to pick Asenith up, so Asenith "expect[ed] her within the next hour." Shortly thereafter, Whye called. Asenith told Whye that Skinner was on her way over, so he said he would meet Skinner at Asenith's home. Neither Skinner nor Whye arrived.
Asenith had been unsuccessful in her later attempts to reach Skinner throughout the day. The following morning, March 26, 2008, Asenith and Lashanda drove to Skinner's apartment where they found her car in the parking lot with the doors unlocked. Skinner's apartment door and windows were locked, and Asenith could not see anything through the windows. The apartment complex's management staff said that the police would have to be present before Skinner's apartment could be entered. Asenith called the Lindenwold Police Department, which dispatched police officers Andrew Tweedley and Corey Davis to the scene.
After speaking to Asenith and Lashanda, the officers obtained Skinner's apartment key from a maintenance worker. They unlocked Skinner's front door and entered the apartment. Tweedley observed Skinner lying motionless on the floor face up with a large butcher knife "over her left shoulder and [her] son was kneeling down right above her head." Tweedley indicated that the toddler looked "frightened at first" and "startled." Tweedley "immediately holstered [his] weapon and walked around the left side of the victim, scooped up [Justin] and ran out the front door," to where Asenith and Lashanda were waiting. While Tweedley was carrying the child down some steps, Justin blurted out, "Troy hit my face." Tweedley eventually carried Justin into the apartment complex's nearby office.
Justin did not appear to have been physically harmed. Tweedley remained with Justin for at least a "couple hours," while Asenith and Lashanda "were in and out." During that time Justin said "a lot," sometimes yelling and cursing. Specifically, Tweedley testified to the following:
The first comments were, "Troy hit my face. Troy punched Mom-mom's face. I punch you fucking face." He would repeat over and over again, "Troy, Troy, Troy." He would blurt out, "bitches. Fuck you bitches. Fuck you up."
At some point I wrote in here that at some point during these outbursts he would — some words I could hear and understand and then others I couldn't. He would clench his fist and scream out and some of which I couldn't understand what he was saying.
Back in Skinner's apartment, the police investigation continued. The apartment had not been ransacked — the laptop computer was still in the kitchen, and Skinner was wearing jewelry. Other than where Skinner's body was found, there was no blood in the apartment and no other signs to indicate a struggle.
Testimony from Dr. Gerald Feigin, the medical examiner for Camden, Gloucester, and Salem counties, indicated the existence of thirty separate stab and incise wounds on Skinner's body, not including defensive wounds on Skinner's hands. Dr. Feigin opined that the cause of death was the infliction of multiple stab wounds, including those that struck Skinner's left lung and another that cut her small intestine. Dr. Feigin further expressed the view that "each of the wounds inflicted on Krystal Skinner could have been caused" by a twelve-inch serrated knife found at the scene.
These wounds were inflicted to Skinner's neck, chest, back, abdomen, thigh, arm, finger and scalp.
Michael Thompson, a long-time friend of Whye's, testified for the State that he called Whye after learning about Skinner's death. Thompson asked Whye about Skinner's death, and "[Whye] said he snapped." Thompson asked Whye to turn himself in and told Whye that the police were looking for him.
Ted Robertson, another friend of Whye's, also testified for the State. He stated that shortly after Skinner's death he had a telephone conversation with Whye who told Skinner that "it was messed up" and he had "lost control." Robertson said that Whye admitted getting into an argument with Skinner who then "asked him to get out." Whye said he was going to make something to eat and "they continued to argue."
After making oatmeal, Whye "turned around and [Skinner] had a knife in her hand and she was asking him to get out." Whye told Robertson that "he lost control, that he blacked out . . . he started stabbing her and he blacked out." After coming to, Whye "[saw] the mess," realized Justin was in another room, "he kissed [Skinner] on the forehead, . . . and then he left." Robertson encouraged Whye to turn himself in to the police because he did not want him to get hurt. Robertson told Whye that Robertson and his sister, a Camden police sergeant, "would come to get him to escort him in." Whye hesitated because he was concerned about getting money in "his account while he was incarcerated."
Robertson then contacted Lieutenant Martin Devlin of the major crimes unit at the Camden County Prosecutor's Office. Eventually, Robertson put Whye in touch with Devlin. Later, Whye told Robertson that he had called Devlin and had "made plans on turning [himself] in."
Devlin's testimony confirmed this. On March 29, 2008, while driving, Devlin received a telephone call from someone identifying himself as "Troy." Devlin pulled over to take the call, and took out a notebook to record their conversation verbatim. Devlin had been expecting the call from Whye because it had been "prearranged." Devlin explained what happened next:
[Whye said,] Sarge, I want to get this over with. And [Devlin] said, I think that's the best all-around thing for you to do, Troy. And he said, I know I was wrong. I'm going to take responsibility, but before I come in I
just want to talk to my family. I'd like them with me when I turn myself in. [Devlin] said, I think that's a good idea, Troy. Do what you have to do, but we need to talk with you as soon as possible. Every young cop in Camden has a picture of you, and I don't want to see anyone get hurt. Come in and tell us your side of the story. Maybe there's a reason why it happened. Maybe you won't have to spend the rest of your life in jail. [Whye] answered, yeah, I hope I don't, Sarge. I'm not really a bad guy. I don't want to spend the rest of my life in jail.
Officer Joseph Graziano of the Delaware River Port Authority testified that on March 31, 2008, he was "stationed at the transit unit for patrol[,] which is the PATCO High Speedline" in the "Broadway sector." Graziano received information that "someone matching [] Whye's description had just entered the Broadway station." Graziano "notified [the] central dispatch to hold the incoming train approaching Broadway so . . . [Graziano] and [an]other officer . . . could search [the train] for [Whye]." The officers approached Whye, who upon request identified himself as Troy Washington, and detained him.
Several months later, Whye was indicted for the murder of Skinner, unlawful possession of a weapon, and the endangerment of Justin. Following several pretrial N.J.R.E. 104 hearings, the jury trial commenced in November 2010. After five days of trial, in which Whye defended himself with the assistance of standby counsel, the jury found Whye guilty of all charges. Sentencing occurred in January 2011, after which Whye appealed.
II
On appeal Whye presents the following points for our consideration:
POINT I: 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).In a pro se supplemental brief, Whye adds the following issues:
POINT II: THE TRIAL COURT ERRED IN REFUSING TO CHARGE PASSION/PROVOCATION TO THE JURY.
POINT III: DEFENDANT'S RIGHT TO CONFRONT THE STATE'S CASE AGAINST HIM WAS INFRINGED AT TRIAL.
POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL, AND THE JURY CHARGES ON THE CHILD ENDANGERMENT CHARGE WERE INSUFFICIENT TO SUSTAIN CONVICTION (PARTIALLY RAISED BELOW).
POINT V: FORCING DEFENDANT, WHO WAS REPRESENTING HIMSELF AT TRIAL, PRO SE, TO REFER TO HIMSELF IN THE THIRD PERSON BEFORE THE JURY INFRINGED DEFENDANT'S CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION AND DEPRIVED DEFENDANT OF A FAIR TRIAL (PLAIN ERROR).
POINT VI: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
POINT I: THE TRIAL COURT ERRED IN PERMITTING JUROR NUMBER 9 TO REMAIN ON THE JURY AFTER POSSIBLE BIAS INFORMATION, ABOUT THEN [SIC] BEHAVIO[]R, WAS BROUGHT TO THE COURT'S ATTENTION.
POINT II: THE TRIAL COURT ERRED IN PERMITTING [THE] JURY FOR[E]MAN TO REMAIN ON THE JURY AFTER SHE BROUGHT UP HER PERSONALLY
KNOWING SOMEONE, EITHER ON THE DEFENDANT[']S SIDE, OR THE VICTIM'S SIDE.
We start with the question whether the trial judge erred in refusing to instruct the jury about murder's lesser-included offense of passion-provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). This is not a case where a defendant raises such issue for the first time on appeal, triggering a plain error review. See e.g., State v. Taylor, 350 N.J. Super. 20, 38 (App. Div.), certif. denied, 174 N.J. 190 (2002). Instead, Whye raised the prospect of the lesser-included offense, and its associated jury instruction — calling it "heat of passion" — during a charge conference just before Whye rested his defense. The following colloquy occurred at that time:
THE COURT: Sir, you told — first of all, you told me that wasn't in the case, sir. You told me there was no heat of passion. [] And what evidence, if anything, has been presented indicating there is a heat of passion, sir?Ultimately, the trial judge held to this, stating he was "not going to charge passion, provocation. There's no basis of anything in the record at all to indicate that the defendant acted under any passion or provocation."
MR. WHYE: Evidence of Michael Thompson.
THE COURT: What did he say, sir?
MR. WHYE: The defendant said he snapped.
THE COURT: How's that in the heat of passion, sir?
MR. WHYE: Somebody just snaps. So, it's like in the heat of the moment.
THE COURT: Well, sir, the problem with this, sir, is that basically you have to admit that you did the stabbing and say I — this is what happened, that I snapped, that this is what caused it, sir. And at this point, sir, there's no evidence to that indicating that you acted under any justification or provocation, sir. I don't find that's in the case at this point, sir.
THE PROSECUTOR: Judge, the only other testimony that I could point to —
THE COURT: Yeah.
THE PROSECUTOR: — that might raise the issue of passion provocation was the testimony of Ted Robertson, who — to whom the defendant gave a more detailed account of what happened —
THE COURT: Right.
THE PROSECUTOR: — at the point where he said Krystal [Skinner] picked up a knife.
THE COURT: I understand that. At the most that could be justification, self-defense. But if the defendant's position is that it was — she was killed by some third party, then he wasn't there. So, how is there any passion provocation?
MR. WHYE: Can we leave that up to the jury to decide, Your Honor?
THE COURT: No, sir. Before I give that type of a charge there has to be some evidence of
it, sir. And I don't find there's any evidence of passion provocation in this case at this time.
We have been unable to find any reference in the record of where Whye "told [the judge] there was no heat of passion." The State points to a proceeding that occurred in January 2010, but the cited transcript refers only to the State's concern about a possible alibi defense and a justification defense. Whye did indicate at that time — eleven months before trial — that there was "[n]ot going to be a justification defense," but that concession cannot serve as a waiver of submitting, if appropriate, the lesser-included offense of passion-provocation manslaughter to the jury.
"An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994) (citation omitted)). Here, Whye was charged in the indictment with murder, that is, "purposely or knowingly caus[ing] the death, or serious bodily injury resulting in the death of Krystal Skinner." N.J.S.A. 2C:11-3(a)(1) and (2). The trial court instructed the jury on the elements of murder, together with the lesser-included offenses of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and reckless manslaughter, N.J.S.A. 2C:11-4(b)(1). The court also instructed the jury on self-defense, N.J.S.A. 2C:3-4(a), telling the jury "[t]he defendant may — part of his contention is that if the State proves that he used or threatened to use force upon another person then that force was justifiably use[d] for his own self-protection."
Passion-provocation manslaughter is a lesser-included offense of murder. State v . Robinson, 136 N . J . 476, 482 (1994). It is a purposeful or knowing killing that "is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). Where the record contains evidence of passion-provocation, the State must prove beyond a reasonable doubt — in order to obtain a conviction for murder — that the purposeful killing was not the product of passion-provocation. State v. Heslop, 135 N.J. 318, 324-25 (1994). "[M]itigation of homicide because of passion[-]provocation is ordinarily a question for the jury, unless the evidence is so weak as to preclude jury consideration." State v. Crisantos (Arriagas), 102 N.J. 265, 275 (1986).
A trial court is not required to instruct the jury on the elements of passion-provocation manslaughter "'unless there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Galicia, 210 N.J. 364, 384 (2012) (quoting N.J.S.A. 2C:1-8(e)) (citation omitted). The elements of passion/provocation manslaughter are:
[1] the provocation must be adequate; [2] the defendant must not have had time to cool off between the provocation and the slaying; [3] the provocation must have actually impassioned the defendant; and [4] the defendant must not have actually cooled off before the slaying.
[State v. Mauricio, 117 N.J. 402, 411 (1990).]
"If counsel requests a lesser-included charge, the trial court must give that charge if there is a rational basis in the record to do so." State v. Garron, 177 N.J. 147, 180 n.5 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). Moreover, in making this determination, "the judge must consider the evidence in the light most favorable to the defendant." Taylor, supra, 350 N.J. Super. at 38.
Under the lens of these principles, our review of the evidence leads us to conclude that there was a well-grounded rational basis upon which a jury could have concluded that the elements of passion-provocation manslaughter were present, thereby subjecting the State to its burden of proof to prove the contrary. Accordingly, the court's failure to provide that option to the jury was erroneous.
"For an error to require reversal, there must be 'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict that it otherwise might not have reached.'" Galicia, supra, 210 N.J. at 388 (alterations in original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)). "If there is a rational basis in the proofs to support a conviction of a lesser degree of criminal homicide, it is error not to submit that issue to the jury." State v. Selby, 183 N.J. Super. 273, 280 (App. Div. 1981) (citing State v. Powell, 84 N.J. 305 (1980)). "To force the jury to choose on the evidence in the case between murder and acquittal raises the possibility that the defendant[] might have been convicted of first degree murder though [his] guilt was of a lesser degree." State v. Sinclair, 49 N.J. 525, 543 (1967).
Evidence of provocation and passion was present in this case. The State presented Asenith, Robertson, and Thompson, whose combined testimony clearly reflected that a tumultuous relationship existed between Whye and Skinner in March 2008. For whatever reason, Whye was on the verge of being excluded from Skinner's home, where he formerly was welcomed, and he knew that their relationship was failing. Robertson's testimony was the most extensive. He explained that Whye told him that "it was messed up" and he had "lost control." Robertson said that Whye admitted getting into an argument with Skinner who then "asked him to get out." Whye said he was going to make something to eat and "they continued to argue." Then Whye, after preparing his meal, "turned around and [Skinner] had a knife in her hand and she was asking him to get out." Whye told Robertson that "he lost control, that he blacked out . . . he started stabbing her and he blacked out."
While subject to debate, the record would support a finding that Whye did not arrive at Skinner's apartment already armed with the intention of doing harm. There is also no indication that Whye had time to cool off following the argument where Skinner demanded that he leave, so as to suggest that what may have followed was a premeditated act. Given the testimony about the past storminess of Whye's relationship with Skinner, as well as the testimony that Skinner and Whye were arguing with each other while Skinner was holding a knife, a rational basis existed for the jury to consider the lesser-included offense of passion-provocation manslaughter.
By concluding here that there was enough evidence to instruct the jury about self-defense, the trial court signaled that it was plausible that Skinner's accosting Whye with a knife while they were arguing was "reasonable and adequate provocation" sufficient to incite Whye's passions. See Galicia, supra, 210 N.J. at 379-80.
We recognize that "words alone, no matter how offensive or insulting, never constitute sufficient provocation." State v. Castagna, 376 N.J. Super. 323, 357 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006). However, when words are accompanied by a threatening act, like reaching for or holding a pipe wrench, see State v. Vigilante, 257 N.J. Super. 296, 301-02 (App. Div. 1992), or a kitchen knife, as here, the provocation leaves the "words alone" category. Also, a course of conduct over a period of time may constitute sufficient provocation. See State v. Erazo, 126 N.J. 112, 124 (1991) (stating that "continuing strain in a marriage fraught with violence" may constitute sufficient provocation); see also State v. Guido, 40 N.J. 191, 211 (1963) (holding that "[A] course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue, should permit a finding of provocation.").
In the present case the jury could have believed the evidence accumulated through the testimony of Asenith, Robertson, and Thompson. If so, it was entitled to find that past history supported Whye's reaction that when Skinner held a knife and demanded that he leave the home of his son, she had the intention to grievously harm him. The jury could further logically find that Whye then lost control and inflicted the fatal wounds that ended Skinner's life. We emphasize that the jury was not obligated to accept this version of events. Although these were the State's witnesses, the State also presented contrary evidence that arguably discredited Whye's theory of diminished responsibility pursuant to passion-provocation principles.
However, the persuasiveness of Whye's case is not the test of whether the trial court's missing jury instruction on passion-provocation manslaughter was prejudicial. "The threshold for such an instruction is low; whenever there is room for dispute whether the jury can find a defendant guilty of passion[-]provocation manslaughter, the jury must be instructed about that offense." Vigilante, supra, 257 N.J. Super. at 306.
We are satisfied that in precluding the jury from considering passion-provocation manslaughter, the court committed an error capable of producing an unjust result with respect to Whye's convictions for purposeful and knowing murder, as well as all of the remaining charges. Accordingly, a new trial is required. Thus, it is unnecessary to address the arguments contained in Whye's pro se supplemental brief and the challenge to his sentence. We further conclude that the arguments raised in Points III and IV regarding third-party guilt and the denial of Whye's motion for acquittal are without sufficient merit to warrant discussion. See R. 2:11-3(e)(2). However, for the sake of completeness, and for guidance of the parties on remand, we will briefly address the issues raised in Points I and V.
Whye claims that "too much hearsay" reached the ears of jurors, including the outbursts of Justin right after Skinner's lifeless body was discovered. Furthermore, he claims that his constitutional right to self-representation was eroded by the trial court's order that he refer to himself in the third person. We do not find Whye's arguments persuasive.
"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). Whye has challenged both the admissibility of Asenith's testimony concerning statements made by Skinner, as well as statements made by two-year-old Justin after the arrival of the police, as hearsay. Our review of the record satisfies us that Asenith's testimony was unexceptionable insofar as it illuminated the victim's state of mind and was not offered for the truth of the matters asserted. As for Justin's outbursts to Tweedley, we concur that they were admissible as excited utterances under N . J . R . E . 803(c)(2) because they were the product of a startling event while still under the stress caused by the event. See State v. Buda, 195 N.J. 278, 296 (2008) (noting that the three-year-old made "an unsolicited 'blurted-out' statement" much like that of Justin here).
Whye's remaining argument, a challenge to the trial court's supposed order to refer to himself in the third-person, is unconvincing. We first note that Whye does not identify where in the proceedings he was supposedly ordered to conduct himself in the manner asserted. The State claims that there never was an order by the trial court requiring Whye to refer to himself as "Mr. Whye." However, Whye did state the following to the jury in his opening statement, which went unchallenged:
At a pre-trial hearing on September 24, 2009, during Whye's motion requesting permission for self-representation, the judge noted,
Now, when you're making statements as a defense counsel, as your own lawyer, it's possible that you cross the line of separating the fact that you' re an attorney from being a witness and then you start to testify.
. . . .
Now, you may find it difficult to avoid commenting on testimony you elicit on direct or cross examination, especially if you know the witness. Such commenting is not proper. You will not be able to comment in that regard.
Because I am representing myself, the Court has instructed me that whenever I refer to myself, the defendant, that I do it in third person. You will, therefore, hear me talk about Mr. Whye and ask questions of witnesses about Mr. Whye. I am doing this so because that is what the Court has instructed me to do.Also, at sentencing, the court said, "Mr. Whye, you don't have to speak in the third person . . . at this time, sir." We therefore assume that Whye's references to himself in the third person were either the product of an instruction that was not captured in the record or resulted from a misunderstanding.
Because this putative error was not raised in the trial court, we review Whye's contentions under the plain error standard. See R. 2:10-2 (noting that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result"). "In other words, was the possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'?" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). We conclude that it would not have.
Requiring Whye to refer to himself in the third-person, while cumbersome, had the salutary effect of constantly reminding Whye that any statements or questions that he uttered in the presence of the jury could neither be testimonial in nature nor be used by the jury to decide the relevant issues. Whye did not contemporaneously object to the third-person usage and appeared to have little difficulty in maintaining the required protocol. Whye was warned about the various and many pitfalls that could befall him if he chose to proceed pro se, and he willingly undertook that burden. Although we do not suggest that the use of the third-person is obligatory in all pro se situations, we fail to observe any prejudice, much less prejudice that might have led the jury to a result it otherwise might not have reached.
"'A trial judge has the ultimate responsibility to control the trial in the courtroom and is given wide discretion to do so.'" State v. Castoran, 325 N.J. Super. 280, 285 (App. Div. 1999) (quoting Ryslik v. Krass, 279 N.J. Super. 293, 297 (App. Div. 1995)), certif. denied, 163 N.J. 78 (2000). "Included in this broad discretion is the authority to restrict . . . conduct which is impermissibly testimonial in nature." Ibid. The court's rulings on such matters are reviewed for an abuse of discretion. See State v. Kuchera, 198 N.J. 482, 494-502 (2009). If the trial court mandated the use of the third-person here, it was not an abuse of discretion, and had no capacity to negatively infringe upon Whye's Sixth Amendment right of self-representation.
Reversed and remanded for a new trial on all charges.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION