On appeal from the Superior Court, Law Division, Union County.
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.*fn1
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, ...