Present: Koontz, Kinser, and Lemons, JJ., and Carrico,
Russell and Lacy, S.JJ.
RUBIO ARGELIO ANGEL
v. Record No. 092341 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA JANUARY 13, 2011
FROM THE COURT OF APPEALS OF VIRGINIA
Rubio Argelio Angel was convicted by an Arlington County
jury of malicious wounding, Code § 18.2-51, abduction with
intent to defile, Code § 18.2-48, two counts of object sexual
penetration, Code § 18.2-67.2, and misdemeanor sexual battery,
Code § 18.2-67.4, arising out of attacks on two women, S.P.
and V.L., on two different dates. He was sentenced to three
consecutive life terms and a twenty-year term of imprisonment,
plus twelve months in jail. His convictions were affirmed by
the Court of Appeals in an unpublished memorandum opinion.
Angel v. Commonwealth, Record No. 2044-07-4 (Mar. 24, 2009).
For the reasons stated below, we will affirm the judgment of
the Court of Appeals.
FACTS
The facts relating to the attacks at issue are as
follows. Facts relevant only to specific assignments of error
will be addressed in the discussion of those assignments of
error.
On Sunday, July 9, 2006, at approximately 6:30 p.m., V.L.
was attacked from behind while walking on a bike path in
western Arlington County. V.L. testified that her assailant
was a male of average build with dark hair who appeared to be
Hispanic. The man knocked V.L. to the ground and continued to
“punch [her] in the head and kick [her] all over.” After
several blows to her head, V.L. lost consciousness. The man
then dragged V.L. away from the bike path and into the woods.
V.L. testified that the next thing she remembered was being
unable to open her eyes because they were swollen shut but
that she heard a motorbike, and then voices of the people who
found her and called for an ambulance.
Adam Radicic and Christina Bishop were walking on the
bike path at the time of the attack on V.L. Radicic testified
that he and Bishop saw a small, green motorbike “idling” on
the right side of the path, which was bordered by a wooded
area. Radicic recognized the green motorbike as one he and
Bishop had seen a young man pushing across a creek just a few
minutes earlier. Radicic testified that he and Bishop
continued on their walk past the motorbike and then heard
“moans coming from the woods” and “all of a sudden, this guy
jets out of the woods, running within an arm’s distance of me
and does a 90-degree turn” to run back in the direction of the
motorbike. Radicic testified that the man was approximately
2
five feet, eight inches tall, slender, “really . . . very,
very thin” and was the same man he had seen earlier on the
green motorbike. Radicic identified Angel at trial stating
that Angel “match[ed] a lot of the key features” of the man he
saw running from the woods.
Radicic also testified that he found V.L. lying on her
back in the woods, “completely covered in blood” with a black
tank top pushed up around her neck and her shorts and
undergarments had been ripped off. Her legs were positioned
apart and Radicic testified that her head was “entirely
swollen up” and her “hair was caked with blood.” Once the
paramedics arrived, V.L. was transported to Inova Fairfax
Hospital.
Nancy Susco, a Sexual Assault Nurse Examiner at Inova
Fairfax Hospital, examined V.L. and testified that her hair
was “matted with blood, dried blood,” and that she “had
leaves, dirt [and] twigs all over her.” Susco testified that
V.L. had a bloody nose, a laceration to her forehead, her
hands were covered in blood, and she had numerous scratches
and bruises all over her body. Susco also testified that V.L.
had a tear to the vaginal wall with “a lot of swelling to that
area and there was a lot of bleeding” and that “[V.L.] ended
up going to the operating room.” Susco also removed a wooden
stick, approximately five inches long, from V.L.’s anus.
3
Susco opined that the stick found in V.L.’s anus and the
injuries to her vagina were “consistent with forceful
penetration.”
Detective Sean Carrig, a member of the Special Victim’s
Unit of the Arlington County Police Department, interviewed
V.L. at the hospital. He testified that based upon the
information provided to the police by the victim and
witnesses, Arlington Police issued a regional broadcast to
other jurisdictions regarding details about the crime against
V.L. including that the suspect was a young Hispanic male
traveling on a green dirt bike.
As a result of the broadcast, Arlington police learned of
an attack on S.P. that occurred on June 18, 2006, in South
Arlington, within approximately one mile from where V.L. was
attacked. The evidence showed that the attack on S.P. was not
as severe as the attack on V.L., but the police noted the two
cases were related because both attacks occurred on a Sunday
evening at approximately 6:30 p.m. and the suspect was a young
Hispanic male of medium build who attacked the women from
behind as they were walking on paths.
At trial, S.P. testified that on Sunday, June 18, 2006,
she was walking her dogs on a path near Thomas Jefferson
Middle School in Arlington, and that at approximately 6:00
p.m. she passed a man who appeared to be adjusting his shoe.
4
She testified that a few moments later “someone came up from
behind and tried to pull [her] athletic shorts down.” S.P.
turned, looked at the man and “started swearing” at him and he
ran away. She testified that her attacker was a normal height
and build, had dark hair, he had dark, “kind of angled
eyebrows” and was wearing black shoes and a yellow striped
“polo shirt” with a “thin line of navy blue.” S.P. testified
that she thought the man was of Latin ethnicity.
Detective Carrig testified that he also learned of three
other attacks similar to the attacks on V.L. and S.P. from
Detective Victor Ignacio of the Alexandria Police Department.
Detective Ignacio testified that he had been investigating
assaults that occurred in Alexandria on Sunday, July 9, 2006,
against K.G. who was attacked at approximately 5:30 p.m. and
two other women within the hour. Detective Carrig testified
that the attacks on the three women involved a young Hispanic
male of medium build who “grabbed” or “slapped” the victims’
“butt[s]” from behind and who fled on a lime green motorbike
and the attacks occurred within “1.6 miles” of each other.
K.G. testified that she was assaulted just after getting
out of her car at her apartment complex in western Alexandria
at approximately 5:30 p.m. on Sunday, July 9, 2006. She
noticed a green motorbike drive past the back of her car and
stop about two spaces down from where she was parked. As K.G.
5
was walking through the parking lot, she saw a person kneeling
behind the green motorbike “tinkering with something” and she
purposefully “made eye contact with the person.” As she
started up the steps to her apartment, K.G. felt a two-handed
grab from behind that reached “kind of in between [her] legs
and up around [her] butt” at which point she turned around to
see who it was. K.G. started yelling at the man who ran back
to the green motorbike and fled.
Neither the Alexandria Police nor the Arlington Police
had a suspect for these attacks until July 26, 2006, when
Arlington County Police Detective Rick Rodriguez was in the
800 block of South Glebe Road responding to a call regarding
an assault on a female in that area. Detective Rodriguez
testified that he was aware of the regional broadcast about
the other assaults on women in the vicinity and was “looking
for a lime green motorbike.” He also testified that he saw
Angel working on a lime green motorbike located at 833 South
Glebe Road in Arlington County. Detective Rodriguez
identified himself to Angel as a police officer and that he
was interested in talking with Angel about reports of
“something [that] had happened further down the street and
[that the police] were looking for some individuals.” Angel
identified himself to Detective Rodriguez as “Carlos Alberto
Zepeda” and provided identification with that name and a birth
6
date of January 2, 1985. Angel allowed Detective Rodriguez to
photograph him and the motorbike.
Detective Rodriguez circulated the information and
photographs of Angel and the lime green motorbike to the
police departments of Arlington County and the City of
Alexandria. Detective Ignacio, of the Alexandria Police
Department, received the photographs and compiled a “photo
spread,” including the photograph of Angel, and showed it to
K.G. who identified Angel as the man who assaulted her on July
9, 2006. Angel was arrested on July 28, 2006, for the offense
of sexual battery against K.G. At the time of his arrest,
Angel again identified himself to police as Carlos Zepeda, a
21-year-old male and he presented corresponding
identification.
DISCUSSION
In this appeal, Angel raises five assignments of error
relating to the denial of his motion to suppress his
statements to police, failure to comply with parental
notification requirements, the joinder of trials for two
separate offenses and admission of certain evidence of other
crimes, the denial of a DNA expert, and the denial of his
motion for mistrial. In another assignment of error, Angel
also asserts, relying on the recent ruling in Graham v.
Florida, 560 U.S. ___, 130 S.Ct. 2011 (2010), that his three
7
consecutive life sentences for nonhomicide crimes, without
parole, should be vacated because it is cruel and unusual
punishment prohibited by the Eighth Amendment to the United
States Constitution. We consider these issues in order.
I. Motion to Suppress Statements to Police
In his first assignment of error, Angel argues that the
Court of Appeals erred in affirming the trial court’s denial
of his motion to suppress his custodial interrogation because
it violated his constitutional rights against self-
incrimination and to the assistance of legal counsel under
Miranda v. Arizona, 384 U.S. 436, 471 (1966).
The well-settled principles of federal constitutional law
require that a suspect be informed of his constitutional
rights to the assistance of counsel and against self-
incrimination. Miranda, 384 U.S. at 471. These Miranda rights
may be waived by the suspect if the waiver is made knowingly
and intelligently. Id. at 475. The Commonwealth bears the
burden of showing a knowing and intelligent waiver. Id. The
determination of whether the waiver was made knowingly and
intelligently is a question of fact that will not be set aside
on appeal unless plainly wrong. Jackson v. Commonwealth, 266
Va. 423, 432, 587 S.E.2d 532, 540 (2003).
The evidence in this case shows that Detectives Victor
Ignacio and Rosa Ortiz interviewed Angel entirely in Spanish,
8
Angel’s native language. The detectives wore plain clothes
and carried no weapons during the interview and they did not
raise their voices or resort to any physical violence at any
time during the interview.
Throughout the interview, Angel identified himself as
Carlos Zepeda, a 21-year-old male. Angel also provided the
police with corresponding identification, which the police
later discovered to be false.
The detectives began the interview by obtaining general
information from Angel including that he had completed the
ninth grade in El Salvador, that he had moved to the United
States in February 2006, and that he had full-time employment
in construction work. The detectives ensured that Angel was
not hungry or thirsty and that he had not consumed any
medications, drugs, or alcohol that day.
After obtaining this background information and observing
that Angel’s “Spanish was fairly good” and that he had a “good
background in terms of his verbal expressions, how he spoke”
the detectives advised Angel of his rights. Detective Ignacio
read Angel his Miranda rights in Spanish and also provided
Angel with a waiver of rights form written in Spanish. When
asked if he understood his rights as read to him, Angel
responded affirmatively. Angel, at Detective Ignacio’s
request, read the waiver portion of the form aloud, which
9
provides, as translated in English, “I have read this
declaration of my rights and I understand my rights. I am
willing to testify and answer the questions. I have not been
threatened or made any promises or offers of compensation.”
Angel stated that he understood what he had read, and before
signing the form, said he did not have any questions regarding
the form or its contents.
Angel argues that an understanding of rights is not the
same as a waiver of those rights. Here, Angel argues that he
did not expressly waive his rights and such waiver cannot be
inferred either from his signature and statements indicating
he understood his rights nor his silence as to waiver. He
contends there is a presumption against waiver and, here, the
totality of the circumstances – that he was seventeen years
old with only a ninth grade education from El Salvador, a
foreigner who had been present in this country for only six
months, and the absence of a parent, guardian or other
interested adult at the interview – does not rebut that
presumption. Angel argues that his conduct here was “mere
silence” with respect to his rights and it does not constitute
a knowing, intelligent, and voluntary waiver.
We agree that a valid waiver will not be presumed simply
from the silence of the accused after the warnings are given.
Harrison v. Commonwealth, 244 Va. 576, 582, 423 S.E.2d 160,
10
163-4 (1992) (quoting North Carolina v. Butler, 441 U.S. 369,
373 (1979) for the conclusion that, under Miranda, “mere
silence is not enough”). However, Miranda neither requires a
waiver to be in writing or verbally expressed, nor does it
preclude the conclusion that a waiver occurred based on the
suspect’s course of conduct. Harrison, 244 Va. at 582, 423
S.E.2d at 163 (quoting Butler, 441 U.S. at 373).
The evidence in this case demonstrates that Angel was not
silent as to his rights and that he understood and waived
those rights. The interview and discussion of rights were
conducted in Angel’s native language. He indicated verbally
that he understood each of his rights when they were read to
him and when he read them aloud and affirmatively checked each
statement on the form indicating his understanding and signed
the form. The form specified that Angel had a right to not
talk with the officers or to stop talking with them at any
time. Nevertheless, Angel proceeded to talk with the officers
about the attacks after he was informed of these rights. The
explanation of his rights also included the statements that “I
understand my rights” and that “I am willing to testify and
answer the questions.” Angel’s express written and verbal
statements of waiver of his rights are strong proof of the
validity of his waiver. Id. at 582, 423 S.E.2d at 163.
11
While the officers conducting the interrogation did not
know at that time that Angel was a juvenile, the information
gathered from him reflected Angel’s experience, education, and
background for consideration by the trial court in determining
whether Angel knowingly, intelligently, and voluntarily waived
his rights. Moreover, there is no evidence that Detectives
Ignacio and Ortiz obtained Angel’s acknowledgement of
understanding regarding his rights or signature on the waiver
of rights form by duress or coercion.
Based on our review of this evidence, we find that the
record supports the trial court’s factual finding that Angel
waived his Miranda rights and that the waiver was knowing,
voluntary, and intelligent. Accordingly, we will affirm that
part of the Court of Appeals’ judgment sustaining the trial
court’s denial of Angel’s motion to suppress his statements to
Detectives Ignacio and Ortiz.
II. Parental Notification
In his second assignment of error, Angel asserts that the
Court of Appeals erred in affirming the circuit court’s
actions dismissing his appeal of the certification order and
denying his motion to dismiss the indictments. Angel’s appeal
and motion to dismiss were based on his contention that he has
a due process right guaranteed under the Fifth and Fourteenth
Amendments to the United States Constitution to have his
12
parents notified of juvenile court proceedings affecting him.
Because such notification was not given in either his initial
advisement hearing or in the transfer hearing, Angel asserts
that his constitutional right to due process was violated and
the dismissal of his appeal and denial of the motion to
dismiss the indictments were error.
The facts relevant to this assignment of error follow.
When arrested on July 28, 2006, Angel stated he was 21 years
old, but later admitted he was only 17 years of age. He also
told the police that his mother was in El Salvador and that
she did not have a telephone and that he could not call her.
Angel did not know his father or where his father resided. He
said he had other relatives but he did not “associate with
them” and that “[t]hey didn’t know anything about him.”
Six petitions were presented to the Arlington County
Juvenile and Domestic Relations (“JDR”) court at an advisory
hearing held on July 31, 2006. Each petition named Angel’s
mother as Maria E. Angel, and her address as unknown, but in
El Salvador. Angel’s father and father’s address were listed
as unknown. In its July 31 order, the JDR court noted that
“[N]o parent is available.” The JDR court also appointed an
attorney and guardian ad litem and ordered that Angel be held
in detention pending the transfer hearing which was set for
September 6, 2006.
13
Angel, his attorney and his guardian ad litem received
written notice and all were present at the transfer hearing on
September 6, 2006. At the hearing, the JDR court found
probable cause existed to believe Angel committed the
aggravated malicious wounding against V.L. and certified that
charge along with the five other charges to the grand jury
pursuant to Code § 16.1-269.1(B). 1 Angel filed a motion
opposing the transfer and certification of the charges and
filed a notice of appeal to the Circuit Court of Arlington
County citing failure to comply with the notice provisions of
Code §§ 16.1-263 and 16.1-269.1 and “the dictates of due
process under the Fifth and Fourteenth Amendments.” 2
On September 12, 2006, the Commonwealth filed a motion in
the JDR court seeking a clarification of that court’s July 31
order. The motion was granted and the JDR court entered an
order reciting the elements of the July 31 hearing,
specifically, that the Commonwealth proffered that the
whereabouts of Angel’s father was unknown and his mother lived
at an unknown address in El Salvador and that Angel did not
object to this proffer. The JDR court then certified that
1
The Commonwealth originally sought certification
pursuant to Code § 16.1-269.1(C).
2
Angel also filed a petition for a Writ of Prohibition
with this Court on September 14, 2006, seeking an order
preventing the issuance of the indictments. That petition was
denied by Order dated September 20, 2006.
14
“the identity of the defendant’s father was not reasonably
ascertainable and that the location or mailing address of the
defendant’s mother was not reasonably ascertainable.” The
guardian ad litem noted on the order that she could neither
object nor agree to the order because she was not present at
the July 31 advisory hearing. She also noted that since the
advisory hearing she had obtained a telephone number for
Angel’s mother. There was no indication of an address for the
mother.
At a hearing on September 27, 2006, the circuit court
denied Angel’s appeal finding that Code § 16.1–269.4 precludes
an appeal from certifications made pursuant to subsection B of
Code § 16.1-269.1, that because an appeal is an appeal de
novo, reconsideration of a transfer was not “appropriate,” and
pursuant to Code § 16.1-269.1(E), an indictment “cures any
error or defect in any proceeding held in the juvenile court
except with respect to the juvenile’s age.”
On November 30, 2006, Angel filed a motion to dismiss the
indictments issued on September 18, reiterating his due
process contention regarding the failure to provide notice to
his parents. The circuit court denied Angel’s motion to
dismiss the indictments at a hearing on December 7, 2006.
We have said, and Angel does not dispute, that the
failure to comply with statutory requirements relating to
15
juvenile proceedings including parental notice requirements
constitutes procedural error that renders the proceeding
voidable. Nelson v. Warden, 262 Va. 276, 285, 552 S.E.2d 73,
78 (2001). Angel also agrees that any procedural error is
deemed cured by the issuance of an indictment pursuant to Code
§ 16.1-269.1(E). Shackleford v. Commonwealth, 262 Va. 196,
205-06, 547 S.E.2d 899, 904-05 (2001). Angel correctly
asserts, however, that this Court has never addressed whether
the failure to comply with the statutory parental notification
requirement constitutes a denial of due process guaranteed by
the Fifth and Fourteenth Amendments. Thus, the threshold
issue in Angel’s assignment of error is whether the Fifth and
Fourteenth Amendments to the United States Constitution confer
on him a due process right to parental notification for his
initial advisement hearing and his transfer hearing. 3
In 1967, this Court considered whether the recently
decided United States Supreme Court case of In re Gault, 387
U.S. 1 (1967), required, as a matter of constitutional due
process, the provision of an attorney for a juvenile in a
transfer hearing. Cradle v. Peyton, 208 Va. 243, 156 S.E.2d
874 (1967). We concluded that the constitutional safeguards
afforded juveniles in Gault were limited by Gault to
3
Angel’s assignment of error does not encompass any
challenge asserting a constitutional defect in the statutory
processes relevant here.
16
proceedings “by which a determination is made as to whether a
juvenile is a ‘delinquent’ as a result of alleged misconduct
on his part, with the consequence that he may be committed to
a state institution.” 387 U.S. at 13. A transfer hearing,
which was the proceeding at issue in Cradle, was not the type
of hearing that resulted in commitment to a state institution
and, accordingly, we concluded that the constitutional
protections imposed in Gault did not apply. Cradle, 208 Va.
at 246, 156 S.E.2d at 877.
Angel asserts that “Cradle’s distinction between
adjudicatory and transfer hearings has been undermined since
1967.” In support of this statement, Angel refers to the
statutory changes in the Code of Virginia relating to juvenile
proceedings which now afford a juvenile a right to counsel
“prior to the adjudicatory or transfer hearing.” Code § 16.1-
266(C). There is no question that since Cradle the General
Assembly has specifically provided juveniles certain
procedural rights. However, those are rights provided by
statute, not conferred by the constitution.
Angel does not cite and we find no case in which the
United States Supreme Court has established that juveniles
have a constitutionally protected due process right of
parental notice for non-adjudicatory proceedings. The
statements of the Supreme Court relied upon by Angel, that
17
transfer hearings are critically important and that juvenile
proceedings must satisfy "the basic requirements of due
process and fairness," were made in Kent v. United States, 383
U.S. 541, 553 (1966) and cited in Gault, 387 U.S. at 12.
These statements do not make parental notification of an
initial advisement hearing or a transfer hearing a due process
right. Nevertheless, as indicated above, in this case Angel
was represented by counsel at both hearings. A guardian ad
litem was appointed in the initial hearing at the request of
Angel’s attorney because, as proffered by the Commonwealth,
Angel’s father was unknown and the location information
regarding Angel’s mother was limited to somewhere in El
Salvador. Angel did not dispute the information contained in
the Commonwealth’s proffer. 4 The guardian ad litem received
notice and participated in the transfer hearing. These facts
show that the process Angel received is consistent with the
Supreme Court’s admonition that a juvenile be treated with the
“basic requirements of due process and fairness.” Kent, 383
U.S. at 553.
For these reasons, Angel’s claim that his constitutional
due process rights were violated must fail because no such
right exists with regard to non-adjudicatory proceedings.
4
These facts were also recited in Angel’s Writ of
Prohibition filed in this Court.
18
III. Motion for Appointment of DNA Expert
and for a Continuance
Prior to trial, Angel filed a motion seeking funds to
employ a DNA expert to review the DNA evidence that the
Commonwealth intended to introduce at trial. That evidence
consisted of a DNA analysis from blood stains on a shoe
recovered from Angel’s residence. The analysis showed that
the DNA matched the DNA profile of victim V.L. The trial
court denied Angel’s motion. The trial court also denied
Angel’s renewed motion to employ a DNA expert as well as his
motion, made eleven days before trial, for a continuance to
allow Angel to prepare his defense with regard to the DNA
evidence.
On appeal, the Court of Appeals assumed without deciding
that the failure to grant these motions was error but held
that any such error was harmless. Angel, slip op. at 16-18.
Angel’s third assignment of error asserts that the Court of
Appeals’ holding was error.
On brief, Angel presents various reasons why the trial
court’s refusal to grant Angel’s motions for a DNA expert and
continuance were error. Because the Court of Appeals assumed
without deciding that the trial court’s action in this regard
was error, we need not address these arguments. The issue
before this Court is whether the error, if any, was harmless.
19
We have previously held that the Due Process and Equal
Protection clauses of the United States Constitution, as
interpreted by the United States Supreme Court in Ake v.
Oklahoma, 470 U.S. 68 (1985) and Caldwell v. Mississippi, 472
U.S. 320 (1985), require that “the Commonwealth of Virginia,
upon request, provide indigent defendants with ‘the basic
tools of an adequate defense,’ and, that in certain instances,
these basic tools may include the appointment of non-
psychiatric experts.” Husske v. Commonwealth, 252 Va. 203,
211, 476 S.E.2d 920, 925 (1996) (quoting Ake, 470 U.S. at 77).
We have also held that errors, arising from the denial of a
constitutional right are subject to a harmless error analysis.
Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209
(1999). When considering whether an error involving a
constitutional right can be held harmless, “ ‘the court must
be able to declare a belief that [the error] was harmless
beyond a reasonable doubt;’ otherwise the conviction under
review must be set aside.” Id. (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)).
Application of this standard requires us to determine
whether there is a “reasonable possibility” that the evidence
complained of by the defendant “might have contributed to the
conviction.” Id. (quoting Chapman, 386 U.S. at 23). In
reaching such a determination, the Court must consider whether
20
several factors, including (1) the importance of the tainted
evidence in the prosecutor’s case, (2) whether that evidence
was cumulative, (3) whether there is evidence that
corroborates or contradicts the tainted evidence on material
points, and (4) the strength of the prosecution’s case as a
whole. Id.
Angel argues that the probative value of the DNA evidence
presented by the Commonwealth as purportedly linking Angel to
V.L. was “very high.” Angel argues that the identifying
evidence was “ambiguous and greatly strengthened by the DNA
evidence.” The only physical evidence linking Angel to the
crime against V.L. was the DNA evidence. Finally, Angel
argues that the evidence of his confession was weak, as it
constituted no more than “a serial assent to statements made
by the police, concerning events he said took place when he
had been drinking heavily.” According to Angel, “[I]t is
reasonably possible that the verdict would not have been the
same” if a DNA expert had challenged the conclusions regarding
the DNA evidence offered by the Commonwealth’s witness or the
procedures used to analyze the DNA evidence. Thus, Angel
argues if he had been given an expert or the time to prepare
even without the expert, some or all of the convictions “could
certainly” have been affected. Therefore, according to Angel,
the Commonwealth did not meet its burden in demonstrating that
21
the asserted errors were harmless beyond a reasonable doubt.
We disagree.
While the DNA evidence is the only physical evidence that
links Angel to V.L., the remaining evidence shows beyond a
reasonable doubt that the lack of the DNA evidence would not
have altered the verdict. Circumstantial evidence including
description of a person fleeing the crime scene using a green
motorbike matched the description of the perpetrator of an
attack shortly before the attack on V.L. and his mode of
escape. The victim of the earlier attack positively identified
Angel as the attacker. Furthermore, Angel confessed to the
attack on V.L. in a recorded statement, which he signed and he
wrote a letter of apology to the victim V.L., which was
admitted into evidence. The DNA evidence at issue related
only to the question of the perpetrator’s identity.
Considering the remaining evidence of identity of the
perpetrator of the attack on V.L. in light of the factors
outlined, we conclude that any error in denying Angel’s motion
for appointment and compensation of an expert was harmless
beyond a reasonable doubt. We reach the same conclusion with
regard to the denial of Angel’s motion for continuance. That
request was based solely on a stated need for additional time
to review the DNA evidence. The denial of this motion, if
22
error, was harmless error based on the remaining evidence of
identity recited above.
IV. Joinder and Admissibility
of Other Crimes Evidence
In his fourth assignment of error, Angel contends that
the Court of Appeals erred in holding that the trial court’s
joinder of the offenses against V.L. and S.P. for trial and
the admission of other crimes evidence were harmless error.
While Angel spends considerable time discussing why joinder
was error, we need not address that issue because the Court of
Appeals, as reflected in Angel’s assignment of error, assumed
without deciding that the joinder was error. See also Angel,
slip op. at 8. The issue before us with regard to joinder is
directed to the Court of Appeals’ holding that such joinder,
if error, was nevertheless harmless error.
The Court of Appeals concluded that the joinder of
separate offenses was harmless error because (1) the evidence
of other crimes admitted in the joint trial would have been
admissible in each trial had the offenses been tried
separately, and (2) assuming without deciding that the
evidence relating to the attack on V.L. would not be
admissible in a trial of charges relating to the assault of
S.P., and that the evidence relating to the assault of S.P.
would not be admissible in the trial of charges relating to
23
the attack on V.L., the impact of that evidence in the joint
trial was harmless error because the other evidence of Angel’s
guilt relating to the respective attacks was overwhelming.
Id., slip op. at 13-15. We agree.
A. Admissibility of Other Crimes Evidence
The evidence of other crimes at issue in this case
involves sexual assaults against three other women. These
three assaults took place on Sunday, July 9, 2006, within one
hour of the same time of day as the assault on V.L. The first
crime involved an assault on K.G. who testified that a man
wearing a bike helmet approached her from behind and touched
her between her legs and around her buttocks as she started up
the steps to her apartment in western Alexandria. She had
observed the man kneeling behind a motorbike with green and
red swirls “tinkering with something” just before the attack.
The man fled on the motorbike after the assault. K.G.
identified Angel as her attacker.
At trial, Detective Ignacio testified as to the two other
assaults that also occurred in western Alexandria on July 9
just prior to the assault on V.L. In those instances, the
attacker “grabbed” or “slapped” the buttocks of two women. By
the time of trial, Angel had pled guilty to sexual battery in
all three incidents.
24
Angel argues that the admission of proof relating to
these crimes was improper because the facts of the incidents
were not nearly identical to the crimes for which he was on
trial in any distinctive aspect, particularly with regard to
the attack on V.L., and the admission of these crimes was more
prejudicial than probative.
Evidence of other crimes generally is not admissible to
show a defendant’s propensity to engage in bad acts or crimes.
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). However, there are exceptions to this general
rule. Evidence of other crimes is admissible in cases of
disputed identity to prove the probability of a common
perpetrator if the other crimes bear “sufficient marks of
similarity to the crime charged.” Turner v. Commonwealth, 259
Va. 645, 651, 529 S.E.2d 787, 791 (2000) (quoting Chichester
v. Commonwealth, 248 Va. 311, 327, 448 S.E.2d 638, 649
(1994)). To be admissible, other crimes need not be “virtual
carbon copies” of the crime on trial. Spencer v.
Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616 (1990). The
similarity must be such that the probative value outweighs any
prejudicial effect. Id. at 90, 393 S.E.2d at 617.
Applying these principles, we consider whether the other
crimes evidence would have been admissible in a separate trial
of the charges based on the July 9 attack of V.L. as well as
25
in a separate trial of the charges based on the June 18 attack
on S.P. The other crimes evidence involved three sexual
assaults, each of which occurred on July 9 within one hour’s
time and within one and one-half to three miles of each other.
As noted by the Court of Appeals, the attacks involved a
sexual touching of the victims just below the waist from the
rear. The attacker was a male, identified by two victims as
young and Hispanic, who fled on a motorbike with green
coloring. The evidence indicated that the attacker traveled
by motorbike “in a northeasterly path from Alexandria into
Arlington as he committed the series of offenses leading up to
his attack on V.L.” Angel, slip op. at 11. The attack on
V.L., although significantly more violent, shared
idiosyncratic features with the attacks committed in the other
crimes - a sexual attack initiated from the rear; use of a
green motorbike by the attacker; and Hispanic appearance.
Additionally, the attacks in the other crimes occurred just
prior to the attack on V.L. and all of the attacks, including
the attack against V.L., occurred within three miles of each
other.
In the trial court Angel contested his identity as the
perpetrator of the July 9 attack on V.L. K.G. positively
identified Angel as her attacker and Angel pled guilty to the
other two attacks. Consequently, the other crimes evidence
26
met the criteria of relevance on the issue of identity. Based
on this record, we agree with the Court of Appeals that the
other crimes evidence would have been admissible in a trial of
the charges against Angel based on the July 9 attack against
V.L. Angel, slip op. at 10-11.
We also agree with the Court of Appeals that the other
crimes evidence would have been admissible in a trial on the
charges based on the June 18 attack on S.P. Id., slip op. at
11-12. We have already discussed the similarities between the
other crimes evidence. Like those attacks, the June 18 attack
on S.P. occurred on a Sunday in the early evening within three
miles of the places where the July 9 attacks occurred and the
attack against S.P. was executed in the same manner as the
attacks described in the other crimes evidence. As the Court
of Appeals stated, in these attacks, “the perpetrator said
nothing, used his hands to make brief contact with the woman’s
buttocks or the clothing covering her buttocks, and fled
quickly after making the contact that constituted sexual
battery.” Id., slip op. at 12. Angel, slip op. at 12.
Because the evidence of other crimes would have been
admissible had the charges against Angel for the attacks on
V.L. and S.P. been tried separately, Angel suffered no
prejudice from their admission in the single trial of those
charges in this case.
27
B. Joinder as Harmless Error
The joinder of the two trials also allowed the jury to
hear evidence of both the July 9 attack on V.L. and the June
18 attack on S.P. Angel argues that if the cases had not been
joined “it is less likely that the subsequent July 9 acts
would have been permitted to be heard by the [S.P.] jury.”
With regard to the impact on the offenses against V.L., Angel
asserts that if the jury did not hear the evidence relating to
the June 18 attack, it would “think differently” about the
issue of intent in connection with the July 9 attack because
the only criminal history revealed would be a series of
assaults in a short time frame on a single afternoon, rather
than a man who also had performed the same act a month
earlier. For these reasons, Angel says the joinder of the two
trials was not harmless error.
A non-constitutional error is harmless if it plainly
appears from the record that the parties had “a fair trial on
the merits and substantial justice has been reached.” Code
§ 8.01-678. If other evidence of guilt is so overwhelming and
the error insignificant, by comparison, supporting a
conclusion that the error did not have a substantial effect on
the verdict, the error is harmless. United States v. Lane,
474 U.S. 438, 450 (1986).
28
In concluding that the joinder was harmless error, the
Court of Appeals assumed without deciding that the evidence of
crimes against V.L. would not have been admitted in a separate
trial involving the offense against S.P. Angel, slip op. at
15. With regard to the offense against S.P., Angel challenged
only the evidence identifying him as the perpetrator. The
admissible evidence included Angel’s admission that he
committed misdemeanor sexual batteries against other women on
July 9 using methods similar to those utilized in the June 18
attack as discussed above. Additional admissible evidence
included Angel’s admission that he previously had committed
another offense near “T.J. School” similar to the July 9
misdemeanor sexual batteries. S.P. was attacked near Thomas
Jefferson Middle School in Alexandria. S.P.’s description of
her attacker was consistent with Angel’s appearance and her
description of the shirt worn by her attacker matched a shirt
that was found in Angel’s clothes hamper at his residence.
Based on this record, we agree with the Court of Appeals’
conclusion that the admissible evidence constitutes
“overwhelming evidence that [Angel] was the perpetrator of the
June 18 misdemeanor sexual battery against S.P., and thus, any
error in joining for trial that offense with the offenses
against V.L. was harmless on the issue of guilt or innocence.”
Id., slip op. at 16.
29
We also agree with the Court of Appeals that joinder, if
error, was harmless error with regard to Angel’s sentence for
the June 18 misdemeanor offense. The trial court, not the
jury, sentenced Angel, pursuant to Code § 16.1-272. The
nature and severity of Angel’s crimes against V.L. were
admitted for purposes relating to those crimes and, absent
evidence to the contrary, we presume that the trial court did
not consider this evidence in determining Angel’s sentence for
the misdemeanor sexual battery offense against S.P.
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,
291 (1977).
Finally, we address Angel’s contention that evidence of
the June 18 offense heard by the jury in relation to the July
9 offenses was not harmless error because it would impact the
issue of intent with regard to the July 9 offenses. It is not
clear whether Angel is contending that, without evidence of
the June 18 offense, the evidence would not support the
element of intent or that the sentence would be different.
Either contention is without merit. At trial, and in the
Court of Appeals, Angel conceded that there was no issue as to
motive or intent with respect to either the July 9 or June 18
offenses. Thus, the June 18 offense evidence would not cause a
different result with respect to guilt based on the issue of
intent. With respect to an impact on sentencing, as discussed
30
above, the sentence was imposed by the court, not the jury,
and we presume the court considered only relevant admissible
evidence in sentencing Angel for the July 9 offenses. Id.
In summary, there was no error in the admission of
evidence of other crimes because such evidence would be
admissible in each trial had the charges based on the attacks
on S.P. and V.L. been tried separately. Furthermore, in
assuming without deciding that the joinder of the trials was
error, the Court of Appeals did not err in concluding that any
such error was harmless.
V. Motion for Mistrial
In his fifth assignment of error, Angel asserts that the
Court of Appeals erred in concluding that Angel’s request for
a mistrial made after the jury retired was untimely and that
the Court of Appeals erred in holding that the denial of the
mistrial was harmless error.
The following exchange occurred at the conclusion of the
Commonwealth’s rebuttal argument to the jury:
[COMMONWEALTH]: But while you are deliberating,
please keep her in your thoughts and think about
what happened to her. 6:00, Sunday, July 9th.
Leaves her house [at] 6:02. I think she
remembered. She leaves her house, takes a walk
just like she does every other day.
6:15, loving life, she’s walking along, she’s
been watching the World Cup soccer. 6:20.
31
[DEFENSE COUNSEL]: Your Honor, I’m going to have
to object. This is not rebuttal. It’s not
answering any of the facts I raised.
THE COURT: It’s legitimate summation. Go ahead.
The Commonwealth continued, reciting the events of the
attack and the injuries inflicted, concluding
[COMMONWEALTH]: While it doesn’t have to define her,
it certainly will be a part of her for the rest of
her life, and it serves really as a reminder as to
just how fragile life is and how everything can
change in an instant, suddenly, without any warning.
While we can’t feel her pain, there is no way
any of us can feel her pain, we can take a moment
before you go back into the jury room and we can try
to imagine it.
[DEFENSE COUNSEL]: Your Honor, I have a continuing
objection.
[COMMONWEALTH]: Thank you.
THE COURT: Are you through?
[COMMONWEALTH]: Yes.
The trial court then noted the time as 5:15 p.m. and
asked the jury whether they wanted to begin deliberation or
return in the morning. The jury retired from the courtroom to
decide when to begin deliberations. At this point, Angel’s
counsel moved for a mistrial stating
I am respectfully moving for a mistrial because the
last portion of [the Commonwealth’s] rebuttal,
closing was, ‘Having said I’m not going to appeal to
your sympathy, I want you to decide this on the
facts.’ Goes on to discuss the events of that day
that were not contested on during my closing
argument.
32
So it was clearly to inflame the passion of the
jury and to seek sympathy and I move for mistrial.
The trial court denied this motion. The jury then returned and
told the court that it wished to begin deliberations the
following morning.
Referring to cases of this Court regarding the timeliness
of motions for mistrial, the Court of Appeals held that
because Angel did not move for a mistrial at the time the
complained of words were spoken, he waived his objection.
Beavers v. Commonwealth, 245 Va. 268, 278-79, 427 S.E.2d 411,
419 (1993); Yeatts v. Commonwealth, 242 Va. 121, 137, 410
S.E.2d 254, 264 (1991). The rule cited by the Court of
Appeals and recited in our cases is based on the principle
that, in the absence of a contemporaneous objection and
request for a curative instruction or mistrial, the trial
court’s ability to take effective corrective action is
significantly, if not totally, impaired. While we have
repeatedly required a contemporaneous objection to counsel’s
offending jury argument and request for a curative instruction
or mistrial to preserve the issue for appeal, in considering
whether the issue was preserved or waived, we have also
examined the circumstances of each case to determine the facts
surrounding the objection and motions. Burns v. Commonwealth,
261 Va. 307, 341-42, 541 S.E.2d 872, 894-95 (2001); Reid v.
33
Baumgardner, 217 Va. 769, 772-74, 232 S.E.2d 778, 780-81
(1977).
In this case, no motion for a mistrial or curative
instruction accompanied Angel’s first objection to the
Commonwealth’s argument and Angel’s assertions of error based
on those statements are waived. Beavers, 245 Va. at 279, 427
S.E.2d at 419. However, after Angel’s second objection, the
Commonwealth rested and the trial court directed the jury to
determine when to begin deliberation. As soon as the jury
left the courtroom to decide when to begin deliberations,
Angel’s counsel addressed his concerns about the
Commonwealth’s argument and moved for a mistrial. No further
argument or substantive proceeding occurred between the
objection and the motion. Under these circumstances, we
cannot say that the trial court’s ability to take corrective
action, if the objection was meritorious, was impaired; nor
can we say that the time between the objection and asserting
the motion for mistrial made the motion untimely. But see
Beavers, 245 Va. at 279, 427 S.E.2d at 419 (objection and
motion for mistrial untimely when made after allegedly
prejudicial statements were uttered); Yeatts, 242 Va. at 137,
410 S.E.2d at 264 (motion for mistrial untimely when made the
day after the alleged objectionable incident occurred); Cheng
v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 606-07 (1990)
34
(trial court not required to issue cautionary instruction or
mistrial sua sponte when defendant failed to seek corrective
action for prosecutor’s alleged improper statements).
Accordingly, we conclude that the Court of Appeals erred in
holding that Angel waived his claim regarding his mistrial
motion as to that part of the Commonwealth’s argument
addressed in Angel’s second objection. Nevertheless,
considering this issue on the merits, we conclude that denial
of the mistrial motion was not error. 5
Angel asserts that “[m]aterial which directly solicits
the jurors to imagine themselves in the position of the victim
of a brutal assault” is inadmissible. However, as recited
above, statements of this nature were not the basis of Angel’s
5
In this assignment of error Angel also avers that the
Court of Appeals erred in holding that “the denial of a
mistrial was harmless error.” However, it is not clear the
Court of Appeals made such a holding. In that court, Angel
asserted that if his request for a mistrial was untimely, the
Court of Appeals should nevertheless address the issue under
the “good cause” or “ends of justice exception” to that
court’s Rule 5A:18. In declining to apply the exception, the
Court of Appeals held that “it is not apparent from the face
of the record that an error occurred that was ‘clear,
substantial and material.’ Because the statements complained
of “did not compel the conclusion that the statement[s were]
improper or, even if [they were,] that a mistrial was required
to cure any prejudice.” Angel, slip op. at 20. There was no
specific holding of error. However at the end of its opinion
the Court of Appeals recited that there was no error in
denying the motion to suppress and dismissing the appeal of
the certification determination and “as to the remaining
assignments of error, we hold any error was harmless.” Id.,
slip op. at 21.
35
motion for mistrial. The motion only referred to the
Commonwealth’s recitation of the uncontested events of the
attack as appealing to the sympathy of the jury. The
recitation of facts, including these facts, is not improper
argument. Accordingly, we cannot say the trial court abused
its discretion in denying the motion for mistrial and we
reject this assignment of error. Blanton v. Commonwealth, 280
Va. 447, 455, 699 S.E.2d 279, 284 (2010) (motion for mistrial
is reviewed for abuse of discretion).
VI. Application of Graham v. Florida
On July 27, 2007, the trial judge sentenced Angel to
three life sentences, plus sentences of twenty years and
twelve months, all of which were to run consecutively.
Virginia has abolished parole and, therefore, the effect of
these sentences is that Angel will spend the rest of his life
confined in the penitentiary. Angel did not appeal these
sentences to the Court of Appeals. However his petition for
appeal and brief on the merits before this Court contained an
assignment of error claiming that the sentences constituted
cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution. He raises this
issue because following the entry of judgment by the Court of
Appeals, the Supreme Court of the United States granted
certiorari in the case of Graham, 560 U.S. ___, 130 S.Ct. 2011
36
and, on July 6, 2010, rendered its modified decision. In that
decision, the Supreme Court held that the Eighth Amendment to
the United States Constitution prohibited sentencing persons
to life without parole for nonhomicidal crimes if they were
less than 18 years of age when they committed the crime. Id.
at ___, 130 S.Ct. at 2030. We included this assignment of
error when we awarded Angel an appeal. 6
The petitioner in Graham was 16 years old when he was
originally charged as an adult for first and second degree
felony charges, carrying maximum penalties of life
imprisonment without parole and 15 years’ imprisonment,
respectively. Pursuant to a plea agreement, the trial court
withheld adjudication as to the charges and sentenced Graham
to concurrent three-year terms of probation. Id. at ___, 130
S.Ct. at 2018. While on probation, Graham was arrested in
connection with a home invasion robbery and another robbery,
committed just before his eighteenth birthday. Following a
hearing, the trial court concluded that Graham had violated
the terms of his probation, found Graham guilty of the earlier
felony charges and sentenced him to the maximum sentence
6
Both Angel and the Commonwealth acknowledge that this
issue was not raised in the courts below, but both suggest
that we address this issue in light of its significance in
this case and, as the Commonwealth notes, “to provide guidance
to trial courts in Virginia.”
37
authorized for each offense. Id. at ___, 130 S.Ct. at 2019-
20.
The Supreme Court considered Graham’s argument that his
life sentence without parole violated the Eighth Amendment as
a “categorical challenge to a term-of-years sentence,” rather
than whether the sentence was disproportionate for Graham’s
crime. Id. at ___, 130 S.Ct. at 2022-23. After determining
that “a national consensus has developed against” sentencing
juveniles who commit nonhomicidal crimes to life imprisonment
without parole, that such a sentencing practice does not serve
legitimate penological goals, particularly rehabilitation, and
does not recognize the limited moral culpability of juvenile
offenders, the Supreme Court concluded that the Eighth
Amendment:
Prohibits the imposition of a life without parole
sentence on a juvenile offender who did not commit
homicide . . . . if it imposes a sentence of life
it must provide him or her with some realistic
opportunity to obtain release before the end of
that term.
560 U.S. at ___, 130 S.Ct. at 2034.
Angel argues that Virginia, like Florida, has eliminated
parole, and therefore Graham requires vacation of his life
sentences. The Commonwealth replies that Graham does not
require the result advanced by Angel because Code § 53.1-40.01
provides for the conditional release of prisoners who have
38
reached a certain age and served a certain length of
imprisonment, thus complying with the Supreme Court’s
decision. We agree with the Commonwealth.
In its opinion the Supreme Court stated:
A State is not required to guarantee eventual
freedom to a juvenile offender convicted of a
nonhomicide crime. What the State must do, however,
is give defendants like Graham some meaningful
opportunity to obtain release based on demonstrated
maturity and rehabilitation. It is for the State,
in the first instance, to explore the means and
mechanisms for compliance. . . . [The Eighth
Amendment] does not require the State to release
that offender during his natural life.
560 U.S. at ___, 130 S.Ct. at 2030.
The Supreme Court has left it up to the states to devise
methods of allowing juvenile offenders an opportunity for
release based on maturity and rehabilitation. While the
Supreme Court did not identify a specific method or methods
that would provide “meaningful opportunity” for release, the
Court clearly stated that states did not have to guarantee
that the offender would be released. Furthermore the Supreme
Court did not require that states provide the opportunity for
release at any particular time related to either the
offender’s age or length of incarceration.
Code § 53.1-40.01 provides:
Any person serving a sentence imposed upon a
conviction for a felony offense, other than a Class
1 felony, (i) who has reached the age of sixty-five
or older and who has served at least five years of
39
the sentence imposed or (ii) who has reached the age
of sixty or older and who has served at least ten
years of the sentence imposed may petition the
Parole Board for conditional release. The Parole
Board shall promulgate regulations to implement the
provisions of this section.
The regulations for conditional release under this statute
provide that if the prisoner meets the qualifications for
consideration contained in the statute, the factors used in
the normal parole consideration process apply to conditional
release decisions under this statute. While this statute has
an age qualifier, it provides, as the Commonwealth argues, the
“meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation” required by the
Eighth Amendment. Accordingly, we reject this assignment of
error.
CONCLUSION
In summary, for the reasons stated, we hold that there
was no reversible error in denying Angel’s motion to suppress
his custodial interrogation, in denying Angel’s appeal of the
order of the JDR court certifying the charges against him to
the grand jury pursuant to Code § 16.1-269.1(B), in denying
his motion to dismiss the indictments, in denying his motion
for appointment and compensation for a DNA expert and denying
his motion for a continuance, in joining the trials of
separate offenses and admitting evidence of other crimes, and
40
in denying Angel’s motion for mistrial. We also hold that the
imposition of life sentences without parole in this case is
not cruel and unusual punishment prohibited by the Eighth
Amendment to the United States Constitution pursuant to
Graham. Accordingly, we will affirm the judgment of the Court
of Appeals.
Affirmed.
41