RUBIO ARGELIO ANGEL v. COMMONWEALTH OF VIRGINIA
Record No. 092341
SUPREME COURT OF VIRGINIA
JANUARY 13, 2011
OPINION BY SENIOR JUSTICE ELIZABETH B. LACY
Present: Koontz, Kinser, and Lemons, JJ., and Carrico, Russell and Lacy, S.JJ.
Rubio Argelio Angel was convicted by an Arlington County jury of malicious wounding,
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.
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
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.
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.
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.
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 prоvided identification with that name and a birth
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
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 detеrmination 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,
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
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, 163-4 (1992)
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 disсussion 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.
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
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 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.
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
At a hearing on September 27, 2006, the circuit court denied Angel‘s appeal finding that
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 pаrents. 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
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 оf 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
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.”
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
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.
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 defensе 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.
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
Angel argues that the probative value of the DNA evidence presented by the Commonweаlth 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
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 appointmеnt 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
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
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 betwеen 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.
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
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
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 contаct 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.
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.”
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.
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
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
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 dоes every other day. 6:15, loving life, she‘s walking along, she‘s been watching the World Cup soccer. 6:20.
[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 becаuse 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.
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.
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 prоceeding 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)
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
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
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
The Supreme Court considered Graham‘s argument that his life sentence without parole violated the
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
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. . . . [Thе 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.
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
the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years оf 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
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
Affirmed.