STATE OF NEW JERSEY VS. IVELIS TURELLÂ (09-02-0161, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0525-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IVELIS TURELL,
Defendant-Appellant.
___________________________________________
Submitted January 31, 2017 – Decided October 27, 2017
Before Judges Messano, Suter, and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 09-02-0161.
Joseph E. Krakora, Public Defender, attorney
for appellant (Charles H. Landesman,
Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Laura Sunyak,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Ivelis Turell appeals her convictions for second-
degree reckless manslaughter and second-degree possession of a
weapon for an unlawful purpose, for shooting and killing her
fiancé, Michael Whitaker. Defendant also appeals her seven-year
sentence, imposed after the two charges were merged. Defendant
claims errors in trial judge's jury charge and subsequent jury
instructions, the prosecutor's summation, and her sentence.
I.
Michael Whitaker's father, James Whitaker, Jr., testified
at trial that his son had lived with defendant on Ferry Street
in Trenton for three or four years with their two children. On
April 30, 2007, at approximately 9:00 p.m., James received a
call from Michael. James described Michael as "very upset" and
noticed "a trembling in his voice." Michael told his father, "I
got to get out of here . . . I can't stay here . . . can I come
over and sleep on the couch." James told Michael that he would
leave the door open for him.
During the call, James could hear defendant "screaming and
yelling" in the background "using some obscene language." James
recalled hearing defendant say something like, "You ain't going
nowhere motherfucker." After two or three minutes, the phone
line "went dead." Michael never arrived that night and James
learned from police the next day that his son was dead.
911 operator Ricardo Cabrera, received a call at 10:42 p.m.
that evening, from an address on Ferry Street reporting someone
had been shot inside the house. Officers Ismael Rivera, Jr. and
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Gregory Hollo arrived within minutes and found Michael lying
face down on the sidewalk near a large pool of blood. Rivera
then noticed defendant sitting in the doorway of the home with
the left side of her body against the wall or door frame and her
feet on the top of the steps. Defendant had blood on the side
of her neck.
Defendant told Rivera she could not feel the left side of
her body. When Rivera asked what happened, defendant said her
six-year-old son was playing with a handgun and shot Michael.
Rivera asked where the child was and defendant said he was
upstairs sleeping. Hollo found the child upstairs along with
his brother. Rivera described defendant as "calm" and testified
that she spoke in a "[n]ormal speaking sound" when stating that
her son shot Michael. She was not crying and did not appear
upset or disoriented.
While emergency medical personnel tended to defendant,
Rivera entered the house to secure the handgun he saw on the
floor in front of a bathroom. The gun, a 9-millimeter Ruger
pistol, had blood on the slide and the end of the gun and the
slide was pulled back. There was blood spatter in the kitchen
and blood smears on the wall in the hallway leading to the
kitchen from the living room. A cell phone and pieces of a
phone were also found in the hallway.
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Detective Scott Peterson and Sergeant Richard Fink arrived
at the Ferry Street address and saw defendant sitting on the
porch steps with a female EMT. After the EMT left, Peterson
spoke to defendant who had gauze on her neck and blood on her
shirt. Peterson described defendant as calm and a little upset,
but not crying or disoriented. Defendant said that her six-
year-old son got a hold of her boyfriend's gun and was playing
with it when it accidentally went off, hitting Michael. She
said the child then dropped the gun, causing it to discharge
again with the ricochet hitting her. Defendant was then
transported to the hospital.
Peterson and Fink went to the hospital and spoke with
defendant in the emergency room. When Peterson asked defendant
to tell him what happened, she told a completely different
story, claiming she and Michael got into an argument over her
son playing with Michael's handgun. At some point during the
argument, defendant claimed Michael choked her in front of the
children. Defendant then retrieved the gun and pointed it at
Michael. When Michael asked what she was doing, she fired the
gun and Michael was hit. She then dropped the gun, it went off,
hitting the ceiling with the ricochet hitting her in the neck.
Defendant also said that she was upset after Michael said he
planned on leaving her and the children.
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During this conversation, Peterson read defendant her
Miranda1 rights. Defendant said she was always in possession of
the gun and made no mention of any type of struggle with Michael
over the gun. Although one side of defendant's neck was
bandaged, Peterson did not see any visible marks on the other
side of her neck from being choked and there were no bruises on
her face.
Later that evening, Michael died during surgery and
Detective Edgar Rios of the homicide unit took over the case.
Rios spoke with defendant at the hospital. After Rios advised
defendant again of her Miranda rights, she gave a six-minute
recorded statement.2
Defendant stated, when she arrived home around 7:30 p.m.,
Michael was in the basement bedroom. When Michael told
defendant he wanted to leave, she responded that he could leave
as long as he paid the credit card bills. Defendant then asked
Michael to sign a letter acknowledging the bills and agreeing to
pay them. They began to argue and defendant claimed Michael
retrieved the gun from the top drawer in the bedroom. Defendant
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
The 911 call and this recording were not included in the record
on appeal.
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grabbed for the gun and, while trying to take it from Michael,
she claimed the gun went off.
Michael was shot in the right arm, just below the shoulder.
Defendant told Rios that, after the gun went off, Michael fell
onto the bed but then "ended up downstairs." Defendant said
that Michael told her to call 9-1-1. After Michael went
downstairs, defendant followed, carrying the gun. As defendant
was trying to use the phone in the kitchen to call 9-1-1, she
claimed the gun went off with the bullet striking a wall. She
then decided to kill herself and shot herself in the neck.
One shell casing was found on the shelf of a computer table
just past the bathroom on the first floor and another was found
on the floor in the dining room. A total of five shell casings
were found in the house, although defendant admitted to firing
the gun only three times. Defendant was arrested and charged
with murder and possession of a weapon for an unlawful purpose.
Defendant testified at trial that Michael was the father of
her two children. She described an incident of domestic
violence in April 2005 when Michael pushed her down the stairs.
Although she was treated at a hospital, she told hospital
personnel she fell down the steps and did not file a police
report. She claims Michael punched her during an argument in
October 2006. Police were called by neighbors but defendant
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told them Michael didn't do anything because she didn't want to
get him in trouble.
Defendant refinanced the house to pay some of Michael's
debts, including child support and car payments. In 2005 and
2006, defendant worked as a bank teller. In December 2006, she
met twice with a counselor to discuss problems at work because
of physical and verbal abuse from Michael. Defendant lost her
job at the bank after making a mistake on a deposit and claimed
Michael "started getting more abusive" with her after that.
In March 2007, defendant began working as a secretary for a
church. Michael was in the basement of the Ferry Street home at
the time. When defendant went to the basement to check on her
younger child, Michael was angry because she had not cooked
dinner and accused her of "messing with somebody else."
Defendant called Michael a "deadbeat dad" and Michael hit and
choked her in front of their two-year-old. Defendant claimed
she could not breathe and Michael only let go after she kicked
him. When defendant tried to go upstairs, Michael locked her in
the basement. She remained locked in the basement for twenty-
five to thirty minutes and when Michael let her out, she told
him she was tired of him hitting her in front of the kids and
that she had told the priest about "you and your pornos."
Michael then slapped her and she told Michael that he had to
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leave. Defendant grabbed a bag from the kitchen and went
upstairs to pack Michael's clothes.
Defendant packed Michael's clothes as the youngest child
slept on the bed. When Michael came into the room, he asked,
"Bitch, what the fuck you doing with my clothes." She repeated
that he had to leave. Michael then retrieved his gun from the
dresser and pointed it at defendant. As Michael pointed the gun
at her, defendant pushed the gun away. Michael, who was leaning
toward the bed, fell back onto his knees, dropping the gun on
the bed. They struggled for the gun and as defendant was trying
to take the gun from Michael, it went off, striking him. She
claimed it was an accident and that she would never have shot
Michael.
Michael began to throw up blood and told defendant to call
9-1-1. Defendant claimed the phone in the bedroom did not work
so she grabbed the gun and then went downstairs to the kitchen
to make the call. Michael followed her downstairs. Defendant
claimed she called 9-1-1 but it was "busy." Defendant then shot
herself in the shoulder, with the bullet coming out her back and
hitting the ceiling. She explained that she shot herself
because she "couldn't help him."
Michael then "got up, and he went towards outside to get
help" and she "dragged" herself towards the phone in the living
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room to call 9-1-1. Michael "laid down on the sidewalk."
Defendant remembered telling a police officer that the gun
went off accidentally, but did not remember talking to Peterson
at the scene or at the emergency room. Defendant recalled
speaking with Rios in the hospital.
On cross-examination, defendant denied telling the police
that her son had accidentally shot and killed Michael or that
the child had been playing with the gun. She also denied other
statements, including that she told Peterson she had "freaked
out" after she realized that she shot Michael or that the gun
dropped and went off.
Defendant called Cindy Levine, a licensed clinical social
worker who authenticated a clinical assessment she prepared
after meeting with defendant in December 2006 and confirmed she
met with defendant twice in December 2006 for counseling
services.
Defendant also called New Jersey State Police Detective
Michael McCormick, who had processed the gun for fingerprints
and found no fingerprints as the gun had been cleaned with
hydrogen peroxide. McCormick did not know who cleaned the gun
but testified it was likely done to remove blood or biohazards
"to render it safe."
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Dr. Raafat Ahmad, the Mercer County Medical Examiner, who
conducted the autopsy for Michael, found the cause of death to
be a gunshot wound to just below the right shoulder. Ahmad
estimated the muzzle of the gun was between twelve and twenty-
four inches away from Michael's arm and classified the manner of
death as homicide.
On cross-examination, Ahmad agreed that she could not rule
out that some of the additional abrasions on Michael's body were
"due to a fight," but she noted that he was "found dead on the
sidewalk with his hands underneath him."
Dr. Luis Francis D'Amelio, Chief of Surgery and Director of
Trauma Services for the Capital Health Regional Medical Center,
testified as an expert in trauma, surgery, and pharmacology. He
oversaw the treatment of defendant when she was brought in on
April 30, 2007. Defendant had exploratory surgery on her neck
to determine the extent of her injuries but D'Amelio found the
bullet "went in the neck and went out by the shoulder blade" and
found "nothing else wrong."
James Joyce, an investigator with the New Jersey State
Police, testified for the State as an expert in ballistics and
firearm identification, that the gun was operable and the two
discharged bullets and five shell casings found at the scene
came from that gun.
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Carl A. Leisinger, III, the owner of CAL III Enterprises, a
forensic ballistics and firearms consulting firm, testified for
defendant as an expert in firearms operability and firearms
identifications. Leisinger challenged the State's expert
opinion about the pull of trigger pressure on the gun.
On March 21, 2013, the jury returned verdicts of not guilty
on aggravated manslaughter and passion/provocation manslaughter
but guilty on reckless manslaughter and possession of a firearm
with an unlawful purpose.
On July 12, 2013, the trial judge denied defendant's motion
for a new trial and imposed sentence.
II.
Defendant now appeals and raises the following points:
POINT I
THE TRIAL JUDGE'S CHARGE TO THE JURY AS TO
SELF-DEFENSE WAS ERRONEOUS BECAUSE HE DID
NOT INSTRUCT THE JURY THAT THE DOCTRINE OF
SELF-DEFENSE APPLIED TO THE LESSER INCLUDED
OFFENSE OF RECKLESS MANSLAUGHTER.
POINT II
THE TRIAL JUDGE'S CHARGE TO THE JURY AS TO
SELF-DEFENSE WAS ERRONEOUS AND CONTRARY TO
LAW AS TO THE DUTY OF DEFENDANT TO RETREAT
FROM HER DWELLING.
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POINT III
PREJUDICIAL ERROR WAS COMMITTED BY THE TRIAL
COURT WHEN IT DID NOT INSTRUCT THE JURY THAT
THE DEFENDANT SHOULD BE FOUND NOT GUILTY OF
A HOMICIDE IF IT FOUND THAT THE DEATH OF
MICHAEL WALKER WAS ACCIDENTAL. (NOT RAISED
BELOW)
POINT IV
THE TRIAL JUDGE GAVE THE JURY AN ERRONEOUS
INSTRUCTION TO CONTINUE DELIBERATIONS WHEN
IT APPEARED THAT THE JURY WAS UNABLE TO
REACH A UNANIMOUS DECISION.
POINT V
THE PROSECUTOR'S SUMMATION TO THE JURY
IMPROPERLY SOUGHT A GUILTY VERDICT BY
APPEALING TO THE JURY'S EMOTIONS RATHER THAN
ARGUING THE FACTS AND THE EVIDENCE.
POINT VI
THE TRIAL JUDGE IN FINDING AGGRAVATING
FACTOR NINE WHICH INVOKES THE NEED FOR
DETERRING DEFENDANT AND OTHERS FROM
VIOLATING THE LAW DID NOT SET FORTH A NEED
FOR SPECIFIC DETERRENCE.
Defendant argues that the trial judge erred in failing to
instruct the jury that the doctrine of self-defense applied to
the lesser included offense of aggravated and reckless
manslaughter. The indictment charged defendant with first-
degree murder, N.J.S.A. 2C:11-3(a)(2) (count one); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (count two); and third-degree unlawful possession of a
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weapon, N.J.S.A. 2C:39-5(b) (count three). In addition to the
murder charge, the judge submitted the lesser included charges
of passion/provocation manslaughter, aggravated manslaughter,
and reckless manslaughter.
During a charge conference, the judge circulated a copy of
the proposed charge and noted that counsel had agreed that there
was "not going to be any offering of contrasting factual
theories of causation" or summaries of the "evidence relevant to
recklessness" as such matters would be handled by closing
arguments. The judge specifically stated "[w]e're not going to
summarize the evidence relevant to recklessness, as we're going
to leave that to counsel in closing." Defendant's counsel
raised no objection to the proposed charge.
After summations, the judge instructed the jury, "the
indictment charges that the Defendant has committed the crime of
murder. The Defendant contends that . . . if the State proved
she used or threatened to use force upon the other person, that
such force was justifiably used for her self-protection or
protection of others." The judge went on to provide a
comprehensive instruction on self-defense, followed by the
elements of murder, passion/provocation manslaughter, aggravated
manslaughter, and reckless manslaughter.
13 A-0525-13T3
When the judge instructed as to the firearm possession
charge, he referred back to the self-defense instruction and
noted:
Earlier in the charge, I instructed you on the
concept of self-defense as it applies to the
offense of murder. The concept of self-
defense as it applies to that offense is
different than that of protective purpose that
applies to this count of the indictment. When
applied to that offense, self-defense requires
a defendant to have an honest and a reasonable
belief in the need to use force.
Defendant made no objection to judge's charge and made no
request to recharge self-defense as to the lesser included
offenses. As a result, this issue will be reviewed as one of
plain error. R. 2:10-2. Applying that standard, an error is
reversible if it was "clearly capable of producing an unjust
result." Ibid. "If a defendant fails to object to a trial
court's instructions, the failure to challenge the jury charge
is considered a waiver to object to the instruction on appeal."
State v. Maloney, 216 N.J. 91, 104 (2013) (citing Rule 1:7-2).
Plain error in the context of a jury charge
is "[l]egal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant sufficiently
grievous to justify notice by the reviewing
court and to convince the court that of
itself the error possessed a clear capacity
to bring about an unjust result."
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[State v. Torres, 183 N.J. 554, 564 (2005)
(alteration in original) (quoting State v.
Jordan, 147 N.J. 409, 422 (1997))].
"The charge must be read as a whole in determining whether there
was any error." Ibid.
Defendant claims that, after giving the jury a self-
defense charge prior to the murder instruction, the judge's
failure to repeat the self-defense charge "for the lesser
included offenses of aggravated manslaughter and reckless
manslaughter . . . was erroneous and prejudicial."
When defendant's sentencing counsel moved for a new trial,
he raised the same issue. In denying the motion, the trial
judge noted that defendant's trial testimony was that Michael
was shot accidentally, when he dropped the gun on the bed and
defendant grabbed it and did not support a self-defense charge.
Defendant relies on State v. Rodriguez, 195 N.J. 165 (2008)
and State v. O'Neil, 219 N.J. 598 (2014), in support of her
claim that self-defense is applicable to a charge of reckless
manslaughter and that therefore the court erred in failing to
instruct the jury as such.
In Rodriguez, the Court "held that a person who acts in
self-defense and 'kills in the honest and reasonable belief that
the protection of his own life requires the use of deadly force'
cannot be convicted of murder, aggravated manslaughter, or
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manslaughter." O'Neil, supra, 219 N.J. at 601 (quoting Rodriguez
supra, 195 N.J. at 172). Where the evidence could support self-
defense as the justification for a homicide, the trial judge
must instruct the jury that self-defense is a complete defense
to aggravated and reckless manslaughter as well as to murder and
that the State has the burden to disprove the self-defense
justification. Rodriguez, supra, 195 N.J. at 174-75.
Here, defendant alleged that the gun went off accidentally,
not that she shot Michael in self-defense. The trial judge
determined that defendant's trial counsel "remain[ed] silent"
and did not request a self-defense charge on the manslaughter
charges or object when it was not given. In the absence of such
a request, we must now determine whether the trial judge was
required to sua sponte charge self-defense as to the lesser
included reckless manslaughter charge.
The judge based his decision on his finding that "even when
the gun was being pointed in [defendant's] face, she was not
under any fear that she was being subjected to deadly force."
The judge relied on defendant's testimony that when Michael
pointed the gun at her, she did not believe he was going to pull
the trigger and waived her hand "like she was swatting away a
fly." The judge also concluded that there was no struggle for
the gun.
16 A-0525-13T3
Our review of defendant's testimony does not support the
judge's conclusions. Defendant testified that when Michael
retrieved the gun and pointed it at her she said, "Mike, you
better take that gun away from me." When asked how she felt
when the gun was pointed at her, defendant replied, "I was
scared. He already had finished choking me, where I didn’t have
no breathing, I was dizzy." When Michael fell and the gun
dropped to the bed, defendant clearly testified that she and
Michael "struggled for the gun. . . . we were struggling for
like a minute, he tried to grab it. I end up grabbing it,
pulling it towards me, and it went off."
Based on this testimony, the judge was required to instruct
the jury on self-defense not only on the murder charge but on
the manslaughter charges as well. As we are remanding this for
a new trial, we take the opportunity to address defendant's
claim that the judge failed to properly instruct the jury as to
defendant's duty to retreat.
On that subject the judge charged:
If you find that the Defendant knew that
she could avoid the necessity of using deadly
force by retreating, provided that the
Defendant knew she could do so with complete
safety, then the defense is not available to
her.
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The confrontation occurred in defendant's home, which "is
accorded special treatment within the justification of self-
defense." State v. Montalvo, 229 N.J. 300, 319 (2017).
"Traditionally self-defense claims require that a person who can
safely retreat from the confrontation avail themselves of that
means of escape." Id. at 320 (quoting State v. Gartland, 149
N.J. 456, 466 (1997). That requirement is suspended under the
"castle doctrine . . . if the confrontation takes place in one's
home or 'castle.'" Ibid. (alteration in original) (citation
omitted). N.J.S.A. 2C:3-4(b)(2) provides in pertinent part:
The use of deadly force is not
justifiable under this section unless the
actor reasonably believes that such force is
necessary to protect himself against death or
serious bodily harm; nor is it justifiable if:
(a) The actor, with the purpose of
causing death or serious bodily harm,
provoked the use of force against himself
in the same encounter; or
(b) The actor knows that he can avoid
the necessity of using such force with
complete safety by retreating or by
surrendering possession of a thing to a
person asserting a claim of right thereto
or by complying with a demand that he
abstain from any action which he has no
duty to take, except that:
(i) The actor is not obliged to
retreat from his dwelling, unless he
was the initial aggressor;
[emphasis added.]
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Because defendant did not request this instruction and the
judge did not provide it, we review this instruction for plain
error. R. 1:7-2. Plain error refers to any error "clearly
capable of producing an unjust result." R. 2:10-2. Regarding a
jury instruction, "plain error requires demonstration of 'legal
impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently grievous to
justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring
about an unjust result.'" State v. Chapland, 187 N.J. 275, 289
(2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert.
denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).
The State argues that defendant's acquittal on the murder
charges renders any "perceived error" in the duty to retreat
instructions harmless. We disagree. Defendant testified that
Michael was the initial aggressor, retrieving the gun from the
dresser and pointing it at her. Under these circumstances,
defendant had no duty to retreat and the judge's failure to
convey this principle rendered the instructions erroneous.
Because the erroneous instructions were capable of producing an
unjust result in this matter, we hold that they constitute plain
error. Montalvo, supra, 229 N.J. at 323.
19 A-0525-13T3
Defendant's convictions are reversed and the matter is
remanded for a new trial on the reckless manslaughter and
weapons charges. We do not retain jurisdiction.
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