Appeal from the United States District Court For the District of New Jersey, D.C. Civil No. 86-0725.
Stapleton, Mansmann and Hunter, Circuit Judges.
Appellant Strenten Vujosevic seeks a reversal of the order of the District Court denying him a writ of habeas corpus. His petition to the federal court alleged that he is in state custody despite two violations of his constitutional rights during his trial for murder: (1) his written confession introduced at trial was obtained in violation of his right to remain silent and was involuntary; (2) the trial court refused to instruct the jury on the lesser included offense of aggravated assault, in violation of Vujosevic's rights under the fifth, sixth and fourteenth amendments. For the reasons set forth below, we find prejudicial constitutional error with respect to the trial court's refusal to instruct the jury on the lesser included offense of aggravated assault. We also find that appellant's written confession was obtained in violation of Vujosevic's right to remain silent. Inasmuch as our finding with respect to the refusal to instruct on aggravated assault requires us to reverse the District Court's order and to remand the case so that relief may be granted, we need not determine whether the written confession was also involuntary or whether the admission of the confession is subject to a harmless error analysis.
This case arose out of the killing of Frederick Baron in the early morning hours of July 18, 1981. Baron was walking near the railroad tracks in Elizabeth, New Jersey, when he encountered Vujosevic, his co-defendant Ronald St. Laurent, and their companion William Treacy. Treacy apparently left soon after the encounter began. After Treacy's departure, Baron was killed by one or both of the remaining men. Vujosevic and St. Laurent then left the area and happened upon Darlene Kirby and several of her friends in a nearby parking lot. Alarmed by what the two men told her about the incident, Kirby returned home to tell her mother what she had heard. Mrs. Kirby called the police. This led to the discovery of Baron's badly battered body, and also to the arrest, several hours later, of Vujosevic.
When Vujosevic was arrested, he was informed of his Miranda rights. He invoked the right to remain silent and was taken to a holding cell without further questioning. Some twenty minutes later, he was again warned of his rights, and was asked to sign a form acknowledging that warning. Vujosevic again refused to speak and was not questioned further. Several hours later, at about 10:00 a.m., Saturday morning, Detective John Mottley, who was supervising the investigation of the killing, again warned Vujosevic of his rights. Vujosevic then signed a waiver, told Mottley that he did not recall any of the events of the previous night, and declined to make a written statement. At that point, Vujosevic was apparently returned to his cell.
Vujosevic was not questioned again until 9:00 p.m. on Sunday night. Appellant has emphasized that at this point he had been held without arraignment since early Saturday morning, that he was to be arraigned on Monday morning, and that the police realized he would be assigned an attorney at the arraignment. On Sunday night, Mottley again warned Vujosevic of his rights and then told him that his brother had been arrested and charged with the killing. Mottley then asked Vujosevic if he wished to reconsider and make a statement. At about 9:40 p.m., Vujosevic agreed to make a statement in which he exonerated his brother and inculpated himself.
Prior to trial, Vujosevic moved to suppress the written statement. The court granted the motion based on its factual findings that (1) Mottley had Vujosevic transported to Elizabeth police headquarters where he read Vujosevic his Miranda rights; (2) Vujosevic did not initiate the conversation; (3) Mottley told Vujosevic, "Your brother is in custody in jail and he's being charged with this offense as well;" (4) the police had investigated Vujosevic's brother's alibi; and (5) Mottley knew that the brother was about to be released from jail. Based on these findings, the court concluded that Vujosevic had been "conned" into making the statement, and granted suppression. On interlocutory appeal, the Appellate Division reversed the suppression order without opinion.
At trial, the following testimony was presented. Treacy testified that Vujosevic and St. Laurent repeatedly asked Baron where he was going, and demanded a cigarette. Baron asked to be left alone. Vujosevic pushed Baron, at which point Treacy left the scene. Kirby testified that when she met Vujosevic and St. Laurent in the parking lot, she noticed blood on Vujosevic's clothes (the arresting officer also said that Vujosevic was dirty and appeared to have fresh blood on his clothes and limbs). Her testimony that Vujosevic told her that he and St. Laurent had just "bashed some guy's head on the tracks" was corroborated by two other prosecution witnesses. Kirby said she heard someone on the tracks crying for help and that Vujosevic responded by saying "if he ain't dead now, by the time the cops get there he'll be." Kirby then left for home while Vujosevic and St. Laurent walked away.
Assistant Medical Examiner Shiego Kondo testified that he arrived on the scene at about 2:00 a.m. and pronounced Baron dead. His determination that the cause of death was asphyxiation due to strangulation was confirmed by the autopsy he later performed. Michael Baker, an inmate at the jail where Vujosevic was held pending trial, testified that Vujosevic confessed to killing Baron, and told Baker in detail how he had kicked, punched, and choked Baron to death.
Vujosevic's own testimony, which was essentially the same as his written statement, admitted his participation in beating Baron, but not in the choking which caused the death. He testified that after Treacy's departure, he walked away from St. Laurent and Baron to urinate. When he returned, he found St. Laurent on top of Baron, beating him. Vujosevic said that he tried to stop St. Laurent, but when St. Laurent told him that Baron had made homosexual advances to St. Laurent, "something snapped in his head" and Vujosevic joined St. Laurent in beating Baron. Vujosevic claimed that he punched and kicked Baron, but that he did not choke him, and that he did not know whether St. Laurent did so. He said that when Baron grabbed his leg, he stopped beating Baron, and tried unsuccessfully to stop St. Laurent as well. Vujosevic claimed he then left the scene before St. Laurent and that St. Laurent later admitted to Vujosevic that he had choked Baron, and that when he had walked away, Baron was not moving.
At the close of evidence, Vujosevic requested that the court instruct the jury on the lesser included offense of aggravated assault, on the theory that his testimony admitted criminal conduct but could support a finding that Baron's death was not caused by Vujosevic. The court refused to give the instruction. It instructed the jury on three levels of homicide: murder, aggravated manslaughter, and manslaughter. The jury returned a verdict of guilty of aggravated manslaughter. On February 26, 1982, Vujosevic was ...