STATE OF NEW JERSEY VS. RICHARD WHATLEYÂ (13-12-3038, ESSEX COUNTY AND STATEWIDE), A-5592-14T2

Background

On May 27, 2013, a backyard barbecue in Newark ended in a melee and two gunshots; Teshon Clegg died from a single gunshot wound to the chest. Several witnesses placed defendant Richard Whatley at the scene with a small revolver; defendant claimed Clegg had the gun and the shooting was accidental/self-defense.
Defendant was tried by jury, convicted of second‑degree passion‑provocation manslaughter and second‑degree unlawful possession of a handgun, and sentenced to consecutive terms (10 years with 85% NERA ineligibility on manslaughter; 8 years with 4 years Graves Act ineligibility on the weapons count).
After defendant testified he did not possess a gun and that the shooting was accidental, the State called Taylor Kennedy in rebuttal to show prior possession of a similar revolver; the trial court admitted her testimony under N.J.R.E. 404(b) after a Cofield hearing and gave a limiting instruction focused on absence of mistake/accident.
During trial the prosecutor elicited testimony from a detective implying he had sufficient evidence to charge Whatley on June 11 (after investigatory efforts), and repeatedly questioned defendant about not telling police his version before surrendering; the court curtailed some questioning and instructed the jury that a defendant's custodial silence cannot be used against him.
Defense objected to several aspects of the evidence/admissions and to prosecutorial conduct (bolstering detective, impermissible use of witness fear, inaccurate summation comment, improper cross on pre‑arrest silence), and challenged the imposition of consecutive and excessive sentences.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Whatley)	Held
Limiting instruction for rebuttal witness (prior possession evidence)	Evidence of prior possession was admissible to rebut defendant's testimony and show absence of mistake/accident; limiting instruction was appropriate.	Instruction was misleading because Whatley never claimed a mere mistake/accident; jury was effectively allowed to use the evidence to impeach credibility or infer bad character.	Court affirmed admission and instruction: prior‑act evidence was properly admitted to rebut defendant's claim and to show absence of mistake/accident; no plain error.
Prosecutor questioning detective about why charges were sought when they were	Detective testimony about being satisfied there was enough evidence to charge was relevant to timeline and investigation; not reversible.	Questioning improperly bolstered the detective and implied guilt, was irrelevant and prejudicial.	Exchange was improper but harmless: objection was made, prosecutor stopped, and the comment did not require reversal under the harmless‑error/plain‑error standards.
Cross‑examination about defendant's pre‑arrest silence	Once defendant testified, reasonable‑person expectations permit impeachment by pre‑arrest conduct/silence when objective circumstances show a reasonable person would have acted differently; such questioning is permissible to attack credibility.	Repeated questioning about failing to approach police violated Fifth Amendment rights and was prejudicial; limiting instruction was insufficient.	Court followed Brown/Stas: pre‑arrest silence not involving government compulsion may be used to impeach credibility if a reasonable person would have acted differently; no reversible error here.
Sentencing — consecutive terms and excessiveness	Consecutive sentences were justified because possession and homicide were separate, independent crimes; sentencing court applied Yarbough factors and balanced aggravators/mitigators.	Consecutive sentences and terms were excessive.	Sentences and consecutive imposition were affirmed: trial judge properly applied Yarbough/Miller analysis and exercised sentencing discretion; no abuse.

Key Cases Cited

State v. Skinner, 218 N.J. 496 (discouraging use of other‑acts evidence solely to bolster credibility)
State v. Lykes, 192 N.J. 519 (other‑act questioning relevant to witness credibility where it addresses contested facts)
State v. Brown, 190 N.J. 144 (pre‑arrest silence may be used to impeach credibility when no compulsion and objective circumstances show a reasonable person would have acted differently)
State v. Cofield, 127 N.J. 328 (standard for preliminary admissibility determinations under N.J.R.E. 104 for other‑acts evidence)
State v. Miller, 205 N.J. 109 (appellate review standards for sentencing and deference to trial court on concurrent/consecutive decisions)
State v. Yarbough, 100 N.J. 627 (factors governing imposition of consecutive sentences)