State v. Vujosevic

• Decision Date: 30 January 1985
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Srenten (Sreten) VUJOSEVIC, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 435

198 N.J.Super. 435

487 A.2d 751

STATE of New Jersey, Plaintiff-Respondent, v. Srenten (Sreten) VUJOSEVIC, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 7, 1985.

Decided Jan. 30, 1985.

Anderson D. Harkov, Asst. Deputy Public Defender, for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney; Anderson D. Harkov, Asst. Deputy Public Defender, of counsel and on brief).

Kenneth M. Denti, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Brian Granstrand, Deputy Atty. Gen., of counsel and on brief).

Before Judges MORTON I. GREENBERG, O'BRIEN and GAYNOR.

The opinion of the court was delivered by

MORTON I. GREENBERG, P.J.A.D.

This matter comes on before this court on defendant's appeal from a judgment of conviction for aggravated manslaughter entered on a verdict at a jury trial. This verdict was returned as a lesser included offense on an indictment charging defendant with the murder of Frederick Baron contrary to N.J.S.A. 2C:11-3. Defendant was sentenced to 20 years imprisonment with a parole ineligibility period of ten years and was assessed a $3,000 penalty for the use of the Violent Crimes Compensation Board.

This case involves conduct of extraordinary depravity. At about noon on Friday, July 17, 1981 defendant began a day of drinking beer, wine and whiskey. Sometime between 5:30 and 7:00 p.m. defendant and some friends walked up an embankment to the Conrail railroad tracks near Elmora Avenue in Elizabeth to continue their drinking. These tracks are a local "hang-out" where people sometimes go to drink, especially during the summer. After a while defendant and his friends left the tracks and went to Carteret Park where defendant resumed drinking. Around 10:30-11:00 p.m. defendant, Ronald St. Laurent and William Treacy went back to the tracks where they sat on a parked flatbed train and smoked marijuana. Not surprisingly defendant appeared to be drunk. Five to ten minutes later, the victim, Frederick Baron, approached defendant and his friends. Treacy testified that at that time defendant and St. Laurent jumped off the train and began harassing Baron. Defendant asked Baron for a cigarette three times and asked him where he was going two or three times. Baron stated he was headed toward Broad Street, asked to be left alone and said "let me walk." Baron tried to continue but was unable to proceed because defendant was pushing him. After seeing defendant push Baron, Treacy went home.

That same evening Darlene Kirby and three of her friends walked up the embankment near the Jersey Mortgage Company parking lot in Elizabeth and sat on the Conrail railroad tracks at approximately 10:30 p.m. After a while Kirby and her friends walked down the embankment and saw two men, defendant and St. Laurent, walking toward them coming from the direction of Elmora Avenue. Kirby recognized them. She had previously seen defendant six or seven times and knew St. Laurent, as "Ray." Kirby saw blood on defendant's shirt, socks and sneakers. Defendant stopped and talked to Kirby and her friends in the Jersey Mortgage parking lot.

Kirby testified that defendant kept flicking a lighter and saying that nothing would have happened if only "he just would have gave us a cigarette." Defendant said that he "bashed some guys head on the tracks" and that Ray choked him "until his eyes popped out of his head." Defendant told Kirby and her friends not to tell anyone. Kirby subsequently corrected her testimony and indicated it was St. Laurent who talked about the cigarette. Kirby then heard someone up on the tracks crying for help. In response to the cry defendant commented that "if he ain't dead now by the time the cops get there he'll be." Kirby and one of her friends, Laurie Pisarczyk, then left the area where she had talked to defendant to go home while defendant and St. Laurent walked up Westfield Avenue toward a White Castle. When Kirby and her friend reached Kirby's home they told Kirby's mother what happened and her mother called the police.

Officer Patrick Shannon of the Elizabeth Police Department and his partner responded to a report of an injured man in the area of the Jersey Mortgage Company. When they drove into the Jersey Mortgage parking lot they saw defendant and another man. Shannon stopped and asked them if they were all right. Defendant responded that he was all right and was going home. At this point Shannon suspected no one of any criminal activity and defendant and his companion departed. Shannon observed that defendant's clothes appeared to be dirty. The officers then made a short search of the embankment but found nothing and left.

Kirby's mother had been able to observe the police search. She concluded it was in the wrong area and consequently called the police and so advised them. The officers then returned to the area and made a broader search during which they found Baron lying on the tracks. His pants were completely pulled down and his sweater was pulled up around his shoulders. The back of his head was severely injured and there was a lot of blood on his face. The side of his body was discolored, showed several lacerations and appeared to be caved in. Some black material which appeared to be burned grass and weeds was found around the head. The officer could not find a pulse on the body and concluded that Baron was dead.

Shannon then saw Kirby and Pisarczyk coming towards him. They had walked back to the tracks after Kirby's mother directed the police to the appropriate area. As a result of his conversation with the girls, Shannon became aware of defendant's nickname, "Strech," and the police began to search the area for the two men they had first seen when they arrived at the tracks. Eventually the police were directed to an address in Elizabeth approximately two blocks from where the body was found. Shannon looked through the kitchen window and saw defendant inside the house. He notified police headquarters of the situation but did not enter until a search warrant was obtained. The police then entered the house and arrested defendant. At that time he appeared dirty and there was fresh blood on his shorts, shirt, arms and legs. Shannon read him his Miranda rights. ¹

Dr. Shigeo Kondo, the assistant Union County medical examiner, came to the homicide scene at approximately 2:00 a.m. on July 18, 1981. The body was still there. Kondo noticed the burnt grass and observed that someone tried to burn the body. He said that Baron's eyes were black and swollen and his shoulders were burned and injured. Kondo pronounced Baron dead and determined that the cause of death was asphyxiation due to strangulation. An autopsy was later performed. It showed hemorrhaging on the forehead and in the head, severe injuries to the eye area due to repeated beating, first and second degree burns to the shoulders, deep laceration of the lip, multiple fractured and broken ribs, a punctured lining of the chest cavity and a flattening of the vocal cord from external force.

When defendant was arrested and given his Miranda rights he had nothing to say. Approximately 20-25 minutes later in the holding cage in Elizabeth Police Department defendant was again advised of his constitutional rights and again indicated he had nothing to say. Detective John Mottley, who supervised the investigation of the homicide, again advised the defendant of his constitutional rights at 10:04 a.m. on July 18, 1981. Defendant signed a waiver of his rights and gave Detective Mottley an oral statement that he had been drinking and did not remember anything that happened after 10:00 p.m. on July 17, 1981. Defendant would not then give a written statement.

On July 19, 1981 at approximately 9:00 p.m., Detective Mottley again advised defendant of his Miranda rights and informed him that his brother had been arrested and charged with the homicide. While his brother was in custody it appears that the police already had information tending to exculpate him. Mottley asked defendant whether he wanted to change his mind and give a statement concerning his brother and himself. At 9:40 p.m. defendant agreed to give a written statement. Defendant stated that he, Ronald St. Laurent and William Treacy were sitting on top of flatcars on the railroad tracks behind the Pathmark when a white male came walking along the tracks and stopped and talked. Treacy left and the man sat down and Ron talked to him. Defendant left to urinate and when he returned he discovered St. Laurent hitting the victim. Defendant claimed that he also hit the victim a few times in the face and kicked him once or twice on the side. St. Laurent continued to hit the victim and defendant tried in vain to stop him. Then defendant and St. Laurent left the tracks and met some friends with whom they talked and drank beer before going home. When they left the tracks the victim was "just laying there and he wasn't moving."

Immediately prior to the jury phase of the trial defendant moved to suppress his statements. The trial judge conducted a Miranda hearing and excluded the written statement. The judge stated that proper Miranda warnings were given but that defendant was unconstitutionally "conned" into giving the statement. The State then sought leave to appeal and we granted the motion and summarily reversed. Thus the written statement was admitted at the trial.

The State offered into evidence three color photographs of Baron lying on the tracks. Defendant objected to them claiming that their prejudicial impact outweighed their probative value. The court described the photographs for the record. Obviously they were graphic. Eventually the photographs were admitted into evidence.

Michael Baker who had been an inmate at the Union County jail when defendant was there following his arrest testified for the State. Baker told the jury how defendant described to him that he and St. Laurent had beaten a man. D...