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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ANGELITO REYES MANIEGO, Defendant
NO. COA 03-340
Filed: 20 April 2004
Homicide--first-degree murder--short form indictment
The short form indictment for first-degree murder is constitutional.
Confessions and Incriminating Statements_voluntary waiver of rights_response to
plea bargain request
Statements to officers were properly admitted where defendant asked about a plea
bargain, an officer said that all he could do would be to tell the D.A. of defendant's cooperation,
and the officer later called defendant a liar. The findings support the conclusion that defendant
knowingly waived his right to remain silent.
Criminal Law_opening argument_presence at scene
Defense counsel did not concede guilt in an opening argument which concerned presence
at the scene.
Criminal Law_instructions_acting in concert_properly defined
The trial court's instruction, taken as a whole, properly defined acting in concert.
Criminal Law_instructions_acting in concert_evidence sufficient
An instruction on acting in concert was supported by the evidence.
Appeal by defendant from judgments entered 12 February 2002 by
Judge Charles H. Henry in Superior Court in Onslow County. Heard
in the Court of Appeals 4 December 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas G. Meacham, Jr., for the State.
Margaret Creasy Ciardella, for defendant-appellant.
On 14 November 2000, the Onslow County Grand Jury returned
indictments charging defendant, Angelito Reyes Maniego, with first-
degree murder, felonious larceny, felonious possession of stolenproperty, robbery with a dangerous weapon, first-degree kidnapping,
conspiracy to commit robbery with a dangerous weapon, conspiracy to
commit first-degree kidnapping, and conspiracy to commit murder.
Defendant was tried capitally during the 14 January through 11
February 2002 Criminal Sessions of Superior Court in Onslow County.
The jury convicted defendant of one count each of first-degree
murder, felonious larceny, first-degree kidnapping, robbery with a
dangerous weapon, and conspiracy to commit robbery with a dangerous
weapon. After a capital sentencing hearing, defendant was
sentenced to life imprisonment without parole for the first-degree
murder conviction. The trial court then imposed a consolidated
sentence of 95 to 123 months imprisonment for the robbery with a
dangerous weapon and felonious larceny convictions. For the first-
degree kidnapping conviction, the trial court sentenced defendant
to a term of 125 to 159 months, and ordered all sentences to run
consecutively. Defendant appeals. For the following reasons, we
find no error.
The State's evidence at trial tended to show that, before he
was killed, twenty-two year old David Brandt shared an apartment
with his sister. On the night of 13 August 2000, David was
supposed to have dinner with his parents, who became worried when
he did not arrive at their house. Later, when David did not return
to his apartment, his sister began to worry. At approximately 4:00
a.m. the next morning, David's sister and parents filed a missing
person's report with the Jacksonville Police Department. About an
hour later, David's truck was found abandoned in a Wal-Mart parking
lot. On the morning of 17 August 2000, law enforcement officers
found the partially decomposed body of David Brandt in a wooded
area near Jacksonville. The body was lying next to a tree, face
up. The face was wrapped with electrical tape with a bulge at the
mouth. The body had suffered multiple stab wounds.
Dr. Christopher Ingram, an expert in forensic pathology,
participated in the autopsy. He testified that electrical tape
covered the victim's head, extending from just below the eyes to
below the chin, wrapping completely around the victim's head
several times. Upon removing the tape from the head, he found a
blue racquetball lodged in the mouth. Dr. Ingram also found
bruises on both arms consistent with someone grabbing or holding
the victim, and noted that the wrists had been bound, possibly with
handcuffs. Dr. Ingram testified that he observed approximately
thirty-one stab wounds to the neck and upper chest region, several
of which were fatal. Although Dr. Ingram testified that
suffocation by the tape and ball was a possible cause of death, he
opined that the stab wounds were the more likely cause.
Jose Quesada, assistant security director at the Jacksonville
Mall, knew the victim as one of the managers at Aladdin's Castle,
a video arcade at the mall. Mr. Quesada also knew the defendant,
who used to work in the mall. Mr. Quesada testified that he saw
the defendant almost every day at the mall, usually at Aladdin's
Castle. On Sunday 13 August 2000, at 6:30 p.m., Mr. Quesada saw
the victim leave the mall carrying his bank deposit bags. Mr.
Quesada also saw the defendant and Clifford Miller, who had been
sitting on a bench outside the mall exit, approach the victim andwalk with him to his truck. All three men got in the truck and
On 14 August 2000, the victim's father telephoned Juan Avila,
who was working as manager of Aladdin's Castle, and told him that
David was missing. Mr. Avila called the bank and found out that
David had not made a $2688.25 deposit the previous evening. Mr.
Avila also knew the defendant from the arcade, and sometimes saw
him with Clifford Miller. Mr. Avila testified that no one
associated with Aladdin's Castle permitted either defendant or
Clifford Miller to take money belonging to Aladdin's Castle.
Michelle Nevitt, who also worked at Aladdin's Castle,
testified that she saw the defendant there every day talking to
David and she saw David give defendant rides in his truck on
numerous occasions. When she left the mall at 6:00 p.m. on 13
August 2000, Ms. Nevitt saw the defendant and Clifford Miller
smoking outside of the mall. She testified that earlier that
afternoon, defendant had been rude with her after she told him to
pay the victim the money defendant owed him.
David's sister, Laura Hingula, worked at another store in the
mall and shared an apartment with him. She knew that her brother
and defendant were friends, but she did not like defendant. On 13
August 2000, at around 4:30 p.m., David told Laura that he was
going to take the deposits to the bank after he closed and then go
to their parents' house for supper. At 6:15 that evening as she
was leaving the mall, Laura saw her brother closing the arcade. As
she left, she saw defendant and Miller outside the mall. She
became worried when her brother did not arrive home by 2:00 a.m.the following morning, and later found out that he had not appeared
at their parents' house for dinner.
Toni Cinotti testified that he worked at a Circle K
convenience store in Jacksonville. On 13 August 2000, he went to
work at 11:10 p.m. relieving Pam Miller, Clifford Miller's wife.
About one hour later, defendant and Miller came into the store.
Miller had a blue backpack with him. Cinotti testified that it was
unusual to see Miller at that hour because he was usually home, and
that Miller appeared clammy, winded, out of breath, nervous, and
scared. Miller bought a drink and then left the store.
Pam Miller testified that on 13 August 2000, she finished her
shift at the Circle K, and went home. That night, Clifford Miller
did not get home until sometime between 1:00 and 2:00 a.m. The
next night, Clifford said he wanted a pizza and asked Pam to get
his wallet from his backpack. She opened the backpack and found it
full of money. Knowing that the money did not belong to them, she
confronted her husband and told him to get rid of it. She found
more money hidden in the house and called the police.
Detective Kaderbek was investigating the missing person report
on 14 August 2000. He knew that David's truck had been found and
that money from Aladdin's Castle was missing. Because Mr. Quesada
had seen the victim leave the mall in the company of two men, one
of whom was defendant, Det. Kaderbek contacted defendant and asked
him to come to the police station for an interview. Defendant
agreed, and went in on 15 August 2000. During the interview,
defendant stated that he went to the mall to ask David for a ride
and that David gave him and Cliff a ride home, dropped them offand left, and that was the last time he saw David. Defendant
stated that he and Miller played video games at Miller's house
until Miller's wife got home from work, after which he left. Det.
Kaderbek allowed defendant to leave after the interview, but he
asked defendant not to speak to Miller until the police could talk
Pam Miller was also interviewed on 15 August 2000. She stated
that no one was home when she returned from work the night of 13
August 2000. Det. Kaderbek and other officers searched Miller's
residence, where they found $892 under a sofa cushion and $315.41
in a tin can. Miller said defendant gave him the money. While the
police were at Miller's house, defendant called Miller on the
telephone. Defendant asked Miller if he had talked to the police
yet, and Miller said no. Defendant told Miller to stick with their
original story that David dropped them off and that was the last
time they saw him. At the request of police, Miller invited
defendant to his house. When defendant arrived, both he and Miller
At this point, Det. Kaderbek read defendant his Miranda
rights, which defendant waived and agreed to be interviewed. After
initially making some inconsistent statements, defendant stated
that when David left the mall, he had three bank deposit bags.
David, defendant and Miller got into David's truck and Miller asked
David to take them to Wal-Mart. Miller then pulled out a knife and
stuck it in David's side. Then they stopped at a school parking
lot where defendant moved into the driver's seat with David in the
middle and Miller in the passenger's seat. Defendant had plannedto drive to Greenville, but got lost, so they stopped at a wooded
area and got out of the truck. They told David to remove his
shirt, then handcuffed him and led him into the woods, where they
handcuffed him around a tree and removed his pants. They then
placed a ball in his mouth and taped his face. David started
struggling, then passed out. Miller then stabbed David about
thirty times in the neck and throat. They left in David's truck,
cleaned it and parked it in a Wal-Mart parking lot. When defendant
was arrested, he had $635.96 on his person and another $407 was
found at his residence.
Defendant presented no evidence.
 First, defendant argues that the short form indictments
used to indict him for first-degree murder were unconstitutional as
they failed to allege all of the elements of first-degree murder.
In State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert.
denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001), our Supreme Court
examined the validity of short form indictments in light of the
United States Supreme Court's decisions in Jones v. United States,
526 U.S. 227, 143 L. Ed. 2d 311 (1999) and Apprendi v. New Jersey,
530 U.S. 466, 147 L. Ed. 2d 435 (2000), and concluded that the
short form murder indictments are in compliance with the North
Carolina and United States Constitutions. Id. at 175, 531 S.E.2d
at 438. As we are bound by the decisions of the North Carolina
Supreme Court, we overrule this assignment of error.
 Next, defendant argues that the trial court erroneouslydenied his motion to suppress statements he made to law enforcement
officers and in allowing the subsequent admission of those
statements at trial. Defendant contends that any statements he
made to the officers were involuntary and the result of coercion.
In reviewing a trial court's ruling on a motion to suppress,
the trial court's findings of fact are conclusive on appeal if
supported by competent evidence, even if the evidence is
conflicting. State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917,
926 (1994), cert. denied, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995).
In turn, the trial court's conclusions of law regarding whether
defendant was in custody must be legally correct, reflecting a
correct application of applicable legal principles to the facts
found. State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357
Here, the trial court made extensive findings of fact
regarding defendant's interrogation. Among them, the court found
as fact that defendant was advised of his Miranda rights, that
defendant stated that he understood his rights and was willing to
waive those rights, that defendant waived those rights both orally
and in writing, that defendant then gave the investigating officers
an oral statement regarding the disappearance of David Brandt, and
that defendant then gave the officers a written statement regarding
the same. Defendant does not challenge any of these findings.
The determination of whether defendant's statements are
voluntary and admissible is a question of law and is fully
reviewable on appeal. State v. Greene, 332 N.C. 565, 580, 422S.E.2d 730, 738 (1992). A statement is admissible if it was given
voluntarily and understandingly. State v. Schneider, 306 N.C.
351, 355, 293 S.E.2d 157, 160 (1982). On review, [t]he court
looks at the totality of the circumstances of the case in
determining whether the confession was voluntary. State v.
Jackson, 308 N.C. 549, 581, 304 S.E.2d 134, 152 (1983). Factors to
be considered include whether defendant was in custody, whether he
was deceived, whether his Miranda rights were honored, whether he
was held incommunicado, the length of the interrogation, whether
there were physical threats or shows of violence, whether promises
were made to obtain the confession, the familiarity of the
declarant with the criminal justice system, and the mental
condition of the declarant. State v. Hardy, 339 N.C. 207, 222, 451
S.E.2d 600, 608 (1994).
The defendant does not challenge the findings of fact of the
superior court but does contend that considering the totality of
the circumstances, his confession was coerced, and thus
inadmissible, because of certain questioning tactics employed by
Dets. Condry and Kaderbek. First, in response to defendant asking
the detectives whether there is going to be a plea bargain, Det.
I can't make deals with you, okay? The only thing I can
make sure of is that the district attorney knows when me
and you talked you cooperated with me fully. That's the
best I can offer you. But for me to even say that to the
district attorney or the judge, you've got to tell me the
truth and you haven't so far.
Our Supreme Court has held that [p]romises or other
statements indicating to an accused that he will receive some
benefit if he confesses do not render his confession involuntarywhen made in response to a solicitation by the accused. State v.
Richardson, 316 N.C. 594, 604, 342 S.E.2d 823, 831 (1986).
Additionally, our Courts have held that it is acceptable to tell
the accused that his cooperation will be made known to the district
attorney. State v. Williams, 314 N.C. 337, 346, 333 S.E.2d 708,
Defendant also contends that his confession was coerced
because the detectives called him a liar, told him that his story
was bull, and told him that they held his life in their hands.
In State v. Jackson, 308 N.C. 549, 304 S.E.2d 134 (1983), our
Supreme Court upheld the admission of the defendant's confession
after investigators told him that it would be best if the
defendant would just tell the truth in the long run. Id. at 560,
304 S.E.2d at 150. Similarly, in State v. Corley, 310 N.C. 40, 311
S.E.2d 540, (1984), the trial court did not err by admitting
defendant's statement after an officer told him that things would
be a lot easier on him if he went ahead and told the truth. Id.
at 52, 311 S.E.2d at 547.
The trial court's findings support its conclusion that
defendant freely, knowingly, understandingly, and voluntarily
waived his right to remain silent and his right to counsel after
being advised of his rights under Miranda v. Arizona, 384 U.S. 436,
16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The conclusions support
the ruling denying defendant's motion to suppress. Thus,
considering the totality of the circumstances, we conclude that the
trial court did not err by admitting defendant's statements.
 Next, defendant contends that the trial court committed
reversible error by failing to inquire of defendant whether he
knowingly, intelligently and voluntarily consented to concessions
of guilt made by his attorney during opening statements in
violation of State v. Harbison, 315 N.C. 175, 337 S.E.2d 504
(1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). We
To establish a Harbison claim, the defendant must first show
that his trial attorney has made a concession of guilt. State v.
Strickland, 346 N.C. 443, 488 S.E.2d 194 (1997), cert. denied, 522
U.S. 1078, 139 L. Ed. 2d 757 (1998). Here, defendant claims that
the following from the opening statement violates Harbison:
Remember that Angelito Maniego is presumed innocent and
this presumption follows him throughout this trial unless
and until you're convinced that he committed these
crimes, any one of them or all of them. He does not have
to testify in the case or present any evidence of, and I
think we've been over that with you. But you must
consider, we ask you to consider any questions that we
ask witnesses and their answers in reaching your decision
in this case. We contend to you further that there's no
physical evidence putting Angelito Maniego at the scene
of this killing by Clifford Miller of David Brandt. That
there's no physical evidence put him in the vehicle with
David Brandt and Clifford Miller. That there's no
physical evidence at all connecting Angelito Maniego with
these crimes. Angelito Maniego put himself in the
vehicle with Clifford Miller and David Brandt. He put
himself driving the vehicle, he put himself at the scene
where David Brandt was murdered by Clifford Miller.
Through his statements, you'll hear his testimony in this
case and he did make three different statements. The
first two are incomplete. The third one is the final
version. It's the truth about his involvement in these
crimes, and it will show to you that he did not aid and
abet in the killing of David Brandt by Clifford Miller,
nor did he act in concert with Clifford Miller to kill
David Brandt. The fact that he's at the scene where
these acts occurred is not enough for you to find him
guilty of these crimes.
Defense counsel then concluded his opening statement by asking thejury to keep an open mind, and further states:
That's all we ask, and we feel that if you do, you will
not find Angelito Maniego guilty of murder or these other
Contrary to defendant's argument, we find no admission of
guilt in this excerpt. At most, defense counsel admits the fact
that defendant's statement places him at the scene of the crime,
though he argues that the fact that he's at the scene where these
acts occurred is not enough for you to find him guilty of these
crimes. Admitting a fact is not equivalent to admitting guilt.
State v. Wiley, 355 N.C. 592, 620, 565 S.E.2d 22, 42 (2002), cert.
denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). In addition,
counsel's opening statement in its entirety is consistent with
defendant's theory of the case, that he was not guilty because
Clifford Miller committed the crimes. Thus, we conclude that there
was no Harbison violation here, and accordingly we overrule this
assignment of error.
 Finally, defendant argues that the trial court erred by
instructing the jury on acting in concert, contending that there
was insufficient evidence to support the instruction and that the
instruction given was an incorrect statement of the law. We
On this point, the trial court instructed the jury as follows:
For a person to by guilty of a crime, it is not necessary
that he, himself, do all the acts necessary to constitute
the crime. If two or more persons join in a purpose, to
commit a particular crime, each of them if actually or
constructively present is not only guilty of that crime
if the other commits the crime, but he's also guilty of
any other crime committed by the other in pursuance ofthe common purpose, to commit the particular crime, or as
a natural or probable consequence thereof. However, the
mere presence of the defendant at the scene of a crime,
even though he is in sympathy with a criminal act and
does nothing to prevent its commission, does not make him
guilty of the offense.
While defendant agrees that this is a correct statement of the law,
he argues that the trial court did not identify this passage as the
definition of acting in concert, and subsequently erred during the
charge on each offense by stating that the defendant, acting
either by himself or acting in concert with another rather than
reciting the defendant, acting by himself or together with someone
In reviewing jury instructions, our Supreme Court has noted
The charge of the court must be read as a whole . . ., in
the same connected way that the judge is supposed to have
intended it and the jury to have considered it . . . .It
will be construed contextually, and isolated portions
will not be held prejudicial when the charge as a whole
is correct. If the charge presents the law fairly and
clearly to the jury, the fact that some expressions,
standing alone, might be considered erroneous will afford
no ground for reversal.
State v. Hooks
, 353 N.C. 629, 634, 548 S.E.2d 501, 505 (2001),
, 534 U.S. 1155, 151 L. Ed. 2d 1018 (2002) (citations
If, when so construed, it is sufficiently clear that no
reasonable cause exists to believe that the jury was
misled or misinformed, any exception to it will not be
sustained even though the instruction could have been
more aptly worded.
State v. Williams
, 299 N.C. 652, 660, 263 S.E.2d 774, 779-80
(1980). Here, in the charge as a whole, the trial court properly
defined and conveyed to the jury the legal principle of acting inconcert.
 We next consider whether the evidence supported this
instruction, and we conclude that it did. The State's evidence
tended to show that witnesses saw the victim leaving the mall with
his bank deposit bags, and also saw him driving off in his truck
with defendant and Clifford Miller. Other evidence showed that in
the truck, Clifford Miller stuck a knife in the victim's side, and
that defendant ordered Miller to stop the truck, so that defendant
could take over the driving. Defendant drove the truck for over
three hours, eventually stopping near a wooded area. Together,
Defendant and Miller led the victim on a fifteen minute walk into
the woods, where they handcuffed him to a tree, stripped off his
clothes, and gagged him. After Miller stabbed the victim many more
times, defendant helped clean up the truck and dispose of evidence
in a dumpster. Defendant and Miller then split the money from the
bank deposit bags and agreed on a story. Importantly, much of this
evidence is from defendant's detailed description of the robbery
and killing. Thus, we conclude that the evidence was sufficient to
support the instruction on acting in concert, and conclude that
this assignment of error lacks merit.
Judges TYSON and STEELMAN concur.
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