RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3910-10T3

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.

___________________________________

Submitted April 9, 2013 – Decided

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

April 26, 2013

A-3910-10T3 2

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.1

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."

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,

1

We elect to use a fictitious name for the child to preserve his

privacy.

A-3910-10T3 3

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

A-3910-10T3 4

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

A-3910-10T3 5

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

A-3910-10T3 6

of thirty separate stab and incise wounds on Skinner's body,2

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.

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."

2

These wounds were inflicted to Skinner's neck, chest, back,

abdomen, thigh, arm, finger and scalp.

A-3910-10T3 7

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

A-3910-10T3 8

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.

A-3910-10T3 9

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).

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.

In a pro se supplemental brief, Whye adds the following issues:

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

A-3910-10T3 10

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. [3

]

And what evidence, if anything, has been

presented indicating there is a heat of

passion, sir?

MR. WHYE: Evidence of Michael Thompson.

THE COURT: What did he say, sir?

3

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.

A-3910-10T3 11

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

A-3910-10T3 12

it, sir. And I don't find there's any

evidence of passion provocation in this case

at this time.

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."

"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."

A-3910-10T3 13

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.

A-3910-10T3 14

[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

A-3910-10T3 15

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."

A-3910-10T3 16

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

A-3910-10T3 17

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

A-3910-10T3 18

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

A-3910-10T3 19

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

A-3910-10T3 20

as "Mr. Whye."4

However, Whye did state the following to the

jury in his opening statement, which went unchallenged:

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.

4

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.

A-3910-10T3 21

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

A-3910-10T3 22

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.