Opinion
DOCKET NO. A-3884-13T4
01-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MANUEL E. CONCEPCION, a/k/a MANNY CONCEPCION, MANNY E. CONCEPCION, MANUEL E. CONCEPCION, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 11-09-2295 and 12-02-0408. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
During the early morning hours of July 11, 2011, near Bellevue and Pacific Avenues in Atlantic City, Ignacio Castro met Megan Cassidy, a prostitute, and solicited her services. Cassidy told Castro she charged sixty dollars, and led him to the back of an alley. When Cassidy asked for the money up front, Castro objected and said sixty dollars was too much. Cassidy then demanded twenty dollars from Castro for wasting her time. They argued and Castro threw a $20 bill at Cassidy. After cursing at each other, Castro slapped Cassidy and she continued to yell at him as they left the alleyway.
A man, street-named "Boo," who knew Cassidy, overheard the commotion and asked Cassidy what was happening. Cassidy explained, and Boo asked Castro why he hit Cassidy. A second man, "Papi," walked by and began to speak to Castro in Spanish. As Castro, Boo, and Papi were speaking, Cassidy's ex-boyfriend "Miz" came by. They were soon joined by defendant, Manuel Concepcion.
Cassidy testified that Boo, Miz, and defendant each hit Castro in the chest. Castro began bleeding, and staggered away. Castro had been stabbed with scissors and, when paramedics responded, he was unconscious, not breathing, and without a pulse. Castro never regained consciousness and sustained anoxic brain injury as a result of prolonged lack of oxygen. He was maintained on life support for a few weeks, but was removed on August 3, 2011, and died shortly thereafter.
On September 21, 2011, a grand jury sitting in Atlantic County returned an indictment charging defendant with possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (2011 Indictment). On February 15, 2012, defendant was indicted on charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (2012 Indictment).
At the trial of the 2012 indictment, the State called nineteen witnesses; defendant testified but called no other witnesses. Audiotaped statements of several witnesses, including Cassidy, were played for the jury. In Cassidy's statement, she told police that defendant admitted to her that he stabbed Castro with scissors, cutting his hand and breaking the scissors in the process. A second witness's taped statement also included an admission by defendant that he stabbed a man who was arguing with Cassidy over money. A third witness's taped statement included a similar admission by defendant and defendant's request that the witness recover the broken scissors from the scene.
Defendant testified that he dealt drugs, cut hair, and hustled to make money. Cassidy gave him the money she earned as a prostitute, and, in return, he provided her with food, shelter and drugs. On the day of the stabbing, defendant testified he saw a commotion on the street, and was told that Castro had not paid Cassidy and had hit her. Defendant admitted that he struck Castro, but denied stabbing him with scissors.
Defendant was cross-examined about his history of prior convictions between 1998 and 2009, including possession of cocaine, receiving stolen property, possession with intent to distribute, and using a fake motor vehicle insurance ID card. Defendant testified that he had been in the county jail "numerous" times.
The jury found defendant not guilty of murder, but guilty of the lesser-included offense of aggravated manslaughter, as well as the two weapons charges. On November 1, 2013, defendant resolved the 2011 indictment by pleading guilty to possession of cocaine. Defendant was sentenced to a forty-year prison sentence for the aggravated manslaughter charge, and a concurrent four-year sentence for cocaine possession. The weapons charges were merged into defendant's sentence, and restitution was ordered in the amount of $5,400.
On appeal, defendant presents the following arguments:
POINT I
THE VOIR DIRE OF PROSPECTIVE JURORS WAS TAINTED WHEN A CORRECTIONS OFFICER STATED THAT HE KNEW THE DEFENDANT FOR "A COUPLE YEARS," AND WAS INADEQUATE BECAUSE THE COURT FAILED TO SECURE PROPER ANSWERS TO OPEN-ENDED QUESTIONS AND FAILED TO ASK APPROPRIATE FOLLOW-UP QUESTIONS. (NOT RAISED BELOW)
A. THE COURT ERRED IN FAILING TO INSTRUCT THE JURORS NOT TO CONCLUDE THAT CONCEPCION HAD PRIOR ARRESTS OR CONVICTIONS AFTER A CORRECTIONS OFFICER STATED THAT HE KNEW DEFENDANT FOR A COUPLE YEARS.
B. THE VOIR DIRE WAS INADEQUATE BECAUSE THE JUDGE FAILED TO SECURE ADEQUATE ANSWERS TO OPEN-ENDED QUESTIONS AND FAILED TO ASK APPROPRIATE FOLLOW-UP QUESTIONS.
POINT II
THE FORTY-YEAR SENTENCE FOR AGGRAVATED MANSLAUGHTER MUST BE VACATED AND THE MATTER REMANDED BECAUSE THE JUDGE LARGELY IMPOSED THE SENTENCE BASED ON OFFENSES THAT HAD NOT BEEN THE SUBJECT OF ANY CONVICTION.
Defendant also submitted a pro se supplemental brief providing the following argument.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO TRULY INQUIRE WHETHER THE DELIBERATING JURY WOULD BE SATISFIED WITH AN ALTERNATIVE TO THE PLAYBACK OF THE AUDIO STATEMENTS OF STATE'S WITNESSES MEGAN CASSIDY AND WILL HENDERSON; FAILED TO MAKE A RECORD OF WHAT WAS HEARD; AND FAILED TO MAKE ANY ON RECORD DETERMINATION AS TO WHETHER
MANUEL CONCEPCION WOULD BE PREJUDICED BY THE JURY'S CONSUMPTION OF POLICE SOLICITED INFORMATION OR IF A REPLAY OF THE CASSIDY AND HENDERSON CROSS EXAMINATION OR ACTION MORE SUBSTANTIVE THAN THE MILLER INSTRUCTION WAS NEEDED TO BALANCE THE SCALES OF FAIRNESS. DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
Trial courts must be allotted reasonable latitude when conducting voir dire and, therefore, a reviewing court's examination should focus only on determining whether "the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury." State v. Biegenwald, 106 N.J. 13, 29 (1987). A trial court's decisions regarding voir dire should not be disturbed on appeal, except to correct an error that undermines the selection of an impartial jury. State v. Winder, 200 N.J. 231, 252 (2009).
Because defendant did not raise the jury selection issue with the trial court, we employ a plain error standard and we will only reverse if an error occurred that was "clearly capable of producing an unjust result[.]" R. 2:10-2.
During voir dire, a prospective juror identified himself as an Atlantic County Corrections Officer and stated that he knew defendant for "a couple years now." The court promptly excused the juror, but defendant now argues that the trial judge erred in not giving a curative instruction to the remaining jurors not to draw any conclusions that defendant had a criminal record.
The brief comment, prompted by a question on the voir dire form, was not enough to taint the jury; it did not imply a causal connection between defendant and the juror's work as a corrections officer. Thus, the isolated statement did not have the capacity to suggest to the jury that defendant had a criminal record.
The trial judge's decision not to provide a limiting instruction does not constitute reversible error. The judge "act[ed] swiftly to overcome any potential bias" when he immediately called counsel to sidebar and dismissed the juror. State v. R.D., 169 N.J. 551, 558 (2001). Moreover, given that defendant testified at trial and was cross-examined about his extensive criminal history, the lack of an instruction regarding conclusions about defendant's criminal record is of no consequence, and cannot constitute plain error.
Defendant also challenges the adequacy of questions asked during voir dire, as well as the alleged failure of the trial judge to appropriately probe prospective jurors and ask follow-up questions.
In accordance with binding administrative directives promulgated by our Supreme Court, the trial judge asked standard, open-ended questions. See Administrative Office of the Courts, Standards for Jury Selection (promulgated by Directive # 21-06 on Dec. 11, 2006); Administrative Office of the Courts, Jury Selection — Model Voir Dire Questions Promulgated by Directive # 21-06 — Revised Procedures and Questions (promulgated by Directive # 04-07 on May 1, 2007). Both the prosecutor and defense counsel agreed to the open-ended voir dire questions that the judge produced, and neither objected to the description of the case that was relayed to the prospective jurors. We are satisfied that the trial judge abided by administrative directives and we find no error in the voir dire requiring reversal.
Finally, defendant challenges his forty-year prison sentence for aggravated manslaughter, arguing that the judge inappropriately focused on defendant's uncharged drug offenses and the allegation that defendant acted as a "pimp." Our review of criminal sentencing is deferential, and a sentence will be vacated only if "the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 366 (1984).
Defendant's criminal history revealed twenty-six arrests with eight felony convictions between 1998 and 2009. The court found that defendant's "extensive prior criminal record and his contempt for the bounds of behavior placed on all citizens," as well as the "heinous nature" of the crime for which defendant was being sentenced, permitted it to impose an extended term of imprisonment. These findings are amply supported by the record. We conclude that the sentence imposed was premised upon a consideration of all relevant factors, and did not amount to a clear error in judgment. See Roth, supra, 95 N.J. at 364.
We find defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION