On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 98-10-1493-I.
Before Judges King, Lisa and Fuentes.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Tried to a jury, defendant was convicted of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1), (2) (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two). The trial judge sentenced defendant for murder to thirty years imprisonment without eligibility for parole and for the weapons offense to a concurrent four-year term. Appropriate mandatory monetary penalties were also imposed. On appeal, defendant contends:
POINT I THE JURY INSTRUCTIONS ON SELF-DEFENSE AND PASSION/PROVOCATION MANSLAUGHTER FAILED TO PROVIDE FACTUAL CONTEXT FOR FAIR CONSIDERATION OF BATTERED WOMAN'S SYNDROME, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below). POINT II JURY INSTRUCTIONS THAT FAILED TO EXPLAIN HOW "IMPERFECT SELF-DEFENSE" COULD RESULT IN A VERDICT OF AGGRAVATED MANSLAUGHTER, RECKLESS MANSLAUGHTER, OR PASSION/PROVOCATION MANSLAUGHTER RATHER THAN MURDER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
POINT III THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED. (Not Raised Below).
The State concedes Point III, and we agree that count two should be merged with count one. See State v. Diaz, 144 N.J. 628, 639- 42 (1996). We vacate the sentence on count two and remand for entry of an amended judgment of conviction. We reject defendant's remaining contentions and affirm the conviction on count one.
Defendant killed Thomas Harsell, her live-in boyfriend and the father of their sixteen-month-old child. She does not deny the homicidal act. The relationship between defendant and Harsell was a volatile one, marked by incidents of verbal and physical altercations. Harsell was thirty-nine-years-old and physically larger and stronger than defendant, who was twenty- five-years-old. On the day of the homicide, August 30, 1998, defendant, Harsell and their child spent the day at the beach. On the way home they argued, and defendant claims Harsell punched her in the face while in the car. The argument continued at home and included physical striking by both parties. Defendant went to the kitchen and called her brother, Michael Tierney, requesting that he come and get her. Defendant acknowledges that she struck Harsell in the head several times with the phone. According to Jeremy Rutan, Harsell's nephew and a resident of the same household, Harsell came out of the kitchen holding his head, which was bleeding profusely, exclaiming "You bitch. You bitch. You bitch."
Harsell's brother, Robert Harsell, was also a resident of the household and was present during these events. He was downstairs when he heard the argument coming from upstairs. He was accustomed to defendant and his brother fighting and said to himself "here we go again." Robert heard what sounded like "someone . . . wrestling on the floor." Robert saw his brother bleeding from the head, but when his brother re-entered the house, Robert went back downstairs because he did not want to "interfere" in the fight.
Michael Tierney and a friend, Paul Dixon, arrived. Michael and Harsell argued outside. Michael was angered that Harsell had struck his sister, and he informed Harsell he was getting her out of there. Harsell told Michael to leave, that it "was none of his business." Defendant came outside, angry, and began striking Harsell in the face, yelling "You won't hit me in front of my brother now." Michael instructed his sister to go inside and get her belongings. When she went in, Michael and Harsell engaged in a physical altercation in which Dixon participated.
When defendant emerged from the house, she was carrying a knife with an eleven-inch blade. She approached Harsell and her brother, who were on the front steps. Dixon took the knife from defendant and placed it on the front seat of Michael's car. Dixon then escorted defendant to the back seat of Michael's car. Harsell and Michael continued to argue. They came over to the car. According to defendant, Harsell reached in and punched her in the face. While Harsell was standing outside the car with his back to the car, continuing to converse with Michael, defendant retrieved the knife from the front seat and stabbed Harsell once in the back, causing his death. Michael and Dixon immediately entered the car and drove off with defendant. Defendant's recollection is that Dixon was already in the car when she stabbed Harsell.
Defendant testified and described how Harsell repeatedly kicked, punched, smacked and choked her that evening. She called her brother to come and get her and the child because she was "in fear of [her] life." She stated Harsell threatened earlier in the evening that if she left he would kill her and she would never again see their child. Throughout the incident, Harsell was attempting to prevent her from leaving. She also described prior incidents where they fought physically, insisting Harsell was always the initiator. She acknowledged stabbing Harsell on one occasion in the chest with scissors. On another occasion she acknowledged cutting Harsell's tongue with the same knife with which she later killed him. She stated he placed the knife to his face because he was upset and stated he wanted to die, and she pushed it causing his injury. Defendant acknowledged that Harsell never used or threatened the use of any weapons on the prior occasions or the night of the killing.
Defendant described on direct examination her reasons for stabbing Harsell:
Q: And how badly do you think he was going to hurt you?
A: I don't know how bad he was going to hurt me but I felt he was really going to hurt me bad.
Q: Did you think he was going to do something to your brother?
A: He was stopping my brother from getting in the car.
Q: What was your brother trying to do? A Get in the car.
Q: And what was the purpose of getting in the car?
A: To take me out of there.
Q: And why do you want to leave? A Because Tom was beating on me. The following was elicited on cross-examination:
Q: And when your brother and Paul Michael Dixon got there after a while you were able to safely get into the car, correct?
Q: Your brother wasn't injured. Paul Michael Dixon was there to help you and despite that you felt it necessary to stab Tom Harsell in the back?
Q: And you knew what you were doing when you stabbed him in the back?
A: I was trying to leave.
Q: You knew you were stabbing him when you stabbed him?
A: I remember having the knife in my hand. I don't remember the ...