On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication December 14, 1995. As Corrected March 26, 1996.
Before Judges Long, Muir, Jr. and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the court was delivered by BROCHIN, J.A.D.
Defendant Daniel Pasterick, Jr. was indicted for purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and -3a(2)); felony murder predicated on robbery (N.J.S.A. 2C:11-3a(3)); two counts of robbery (N.J.S.A. 2C:15-1); and unlawful use of a credit card, knowing that it had been stolen (N.J.S.A. 2C:21-6d). His first trial ended in a mistrial after ten days because a deliberating juror failed to disclose that she had been charged with murder in 1972 and no alternate was available. His second trial ended in a mistrial after two days because his attorney became ill and was taken to the hospital. Defendant's third trial resulted in a verdict. He was acquitted of felony murder and convicted of purposeful and knowing murder, of two counts of third degree theft as lesser included offenses of robbery, and of fourth degree unlawful use of a credit card.
Defendant was sentenced to life imprisonment with thirty years' parole ineligibility for murder, to five years' imprisonment for each of the theft convictions, and to one year's imprisonment for unlawful use of a credit card. The sentences for all of the convictions other than murder were made concurrent to each other and consecutive to the sentence for murder.
The victim of all these crimes was defendant's father. Defendant committed the homicide on September 4, 1989, his twenty-first birthday. His parents were divorced. Until a few days earlier, he had been living with his father in a mobile home. His father had ordered him out of their home because, according to defendant's trial testimony, defendant had forged his father's name on an application for a bank credit card and had then used the credit card to obtain merchandise or cash. A warrant was outstanding for defendant's arrest on the credit card charge. At about the same time, Kim, defendant's girlfriend, had ended their relationship because his father had told her about the credit card fraud and because defendant was unable to pay for a vacation cruise and a diamond ring that he had promised her.
Defendant knocked on his father's door at approximately 7 a.m. on September 4, 1989. Defendant told his father that he wanted to collect some of Kim's belongings in order to return them to her. Defendant's father invited him inside and wished him a happy birthday. After collecting the articles he wanted to return to Kim, defendant and his father sat drinking coffee and tea together and watching television. They began to talk about the warrant for defendant's arrest for credit card fraud. His father urged him to turn himself in. Defendant said that he was reluctant to submit to arrest because of what he had experienced during a previous incarceration.
Sylvia, the father's girlfriend, was on an airplane due to arrive sometime around noon that same day. Before defendant was satisfied to end their conversation, his father interrupted it to get ready to go to the airport to meet her. Defendant testified that he was "very hurt" because their conversation was not yet completed. An argument developed that culminated in the homicide.
According to the State's pathologist who autopsied the victim, defendant's father sustained three large stab wounds, a wound to the right upper chest, a wound to the left upper abdomen, and a wound to the left upper arm. The wound to the right upper chest penetrated the lung and caused significant internal and external bleeding. The wound to the arm cut through muscle tissue and also caused substantial bleeding. The wound to the abdomen was five inches deep and had penetrated the mesentery, but had caused very little bleeding. During the autopsy, a knife blade was discovered to be embedded in the abdominal wound. The knife handle was found near the body. From the fact that the blade was found in the wound, the pathologist inferred that it was the last knife wound inflicted. From the fact that it caused relatively little bleeding, he inferred that it had been inflicted either while the victim was in the last throes of dying or while he was already dead.
There were also several comparatively minor stab wounds to the victim's chest, and there were contusions and abrasions on his face, left knee and elbows. There were stabs and cuts on his hands that were described as defense wounds. In addition, he had suffered a blunt injury to the back of his head caused either by a fall or by his having been struck by a blunt, heavy object. This blow to the victim's head had resulted in a subdural hematoma. Blood vessels had ruptured, and there was a large area of hemorrhaging and swelling of the brain. In the opinion of the State's pathologist, this blow would have stunned the victim or rendered him unconscious.
The police who found the victim's body observed blood on the living room carpet of his home, on the curtains, the television set, the coffee table, on the front of the kitchen stove, in defendant's bedroom, and on various other articles. The right rear pocket of the pants that the victim was wearing was empty and had been partially turned out.
When defendant was arrested the next day, he had a scratch on his left cheek, a scratch on his forehead, cuts on his pinkie, his index finger and the palm of his left hand, cuts on the pinkie and index finger of his right hand, and a laceration on his left forearm.
According to defendant's trial testimony on direct examination, when his father interrupted their conversation about his submitting to arrest for credit card fraud, defendant said the he was upset because his father spent more time with his girlfriend's family than with his own. Defendant's father put his arm around defendant to escort him out the door. Defendant pushed his arm away. There was further pushing and shoving, initiated by defendant. At some point, defendant pushed his father into the refrigerator. The father "grabbed a knife from the butcher block between the stove and the . . . refrigerator . . . . [and] held it out in front of him." They were about an arm's length apart. Defendant testified that he didn't know what to do because he had never previously been confronted by someone holding a weapon. He was afraid because his father became very angry when defendant talked about Sylvia's family. Defendant didn't know what his father was going to do with the knife. When asked why he didn't just walk out the back door, defendant replied that he had "never been in that situation before." When asked whether he was in fear for his life, he answered, "I didn't know what was going to happen, so . . . ."
Defendant testified that a violent struggle ensued. According to him, furniture was knocked down, and he and his father fought, both while standing and while thrashing around on the floor. Defendant says that his father punched him in the head and he punched his father. He claimed that his major concern was to defend himself. He testified that he never possessed the knife, that his father had it throughout the struggle. The implication of his testimony was that his father was wounded by accident.
When the fight was over and defendant's father was lying on the floor bleeding, defendant dabbed at his father's abdominal wound with a pillow case. Then defendant went to his bedroom, took his own clothes off and took a shower because he was covered with blood. His father told defendant that he loved him, that he thought he was dying, and that he didn't know "why it happened like this." Defendant did not call for help. He took the wallet from his father's back pocket, with approximately $110 in it, and he took his father's car keys from the counter. He drove his father's car to a shopping mall to meet Kim in order to return her belongings. At the mall, he used his father's credit card to obtain a cash advance and to buy a diamond engagement ring "to try to make amends for our breaking up of our relationship, try to make things better." He also used his father's checkbook. That evening, he had dinner with Kim at a restaurant. He was arrested at Kim's house the next day.
On appeal, defendant argues the following points:
Point I. The court's instruction that "gestures, no matter how abusive, threatening or insulting, are ordinarily not such provocation" was erroneous and deprived defendant of his ...