ALFREDO ROLANDO PRIETO v. COMMONWEALTH OF VIRGINIA
Record No. 110632
Supreme Court of Virginia
January 13, 2012
JUSTICE LEROY F. MILLETTE, JR.
PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan, and Powell, JJ., and Lacy, S.J. FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Randy I. Bellows, Judge
In this appeal of right, we review two death sentences imposed upon Alfredo Rolando Prieto. On September 18, 2009, we upheld two capital murder convictions against Prieto arising from the deaths of Rachael Raver and Warren Fulton III, as well as convictions for rape, grand larceny, and two counts of felonious use of a firearm. We remanded for resentencing based on a finding of error in the penalty phase of the trial. On November 5, 2010, following a new penalty phase, a jury unanimously found both aggravating factors of future dangerousness and vileness, either of which provides sufficient grounds for the imposition of the death penalty in the Commonwealth under
A Fairfax County grand jury indicted Prieto in 2005 in connection with the deaths of Raver and Fulton. Prieto was charged with two counts of capital murder, one count of rape, two counts of use of a firearm in the commission of a felony, and one count of grand larceny. The factual and procedural history of the case until the time of the prior appeal was thoroughly recounted in our earlier review and is incorporated herein. Prieto v. Commonwealth, 278 Va. 366, 682 S.E.2d 910 (2009) [hereinafter, Prieto I].1 While upholding the convictions in the guilt phase, we found the verdict forms defective in that they failed to make clear that the jury must be unanimous in finding vileness or future dangerousness or both aggravating factors in order to impose a sentence of death. The forms also failed to include an explicit life-without-parole option even if the jury found one or both of those aggravating factors. Accordingly, we remanded for resentencing. Id. at 418, 682 S.E.2d at 938.
During the resentencing proceeding, the Commonwealth presented victim impact testimony from the family members of the deceased, as well as testimony regarding a prior adjudicated
After the presentation of aggravating and mitigating evidence, the jury unanimously found both aggravating factors of future dangerousness and vileness and recommended two death sentences. The trial judge declined to set aside the jury verdict and imposed the death penalty, which was subsequently stayed for these proceedings.
Prieto now appeals to this Court with 195 assignments of error. We will first dispose of those issues that were previously addressed by the Court in Prieto I, were not properly preserved at trial, or lacked accompanying argument as required by this Court. We then discuss more thoroughly the properly preserved issues: (1) whether Judge Randy I. Bellows erred in refusing to recuse himself; (2) whether the circuit court erred in allowing impermissible victim impact statements; (3) whether
A. Assignments of Error Waived
In accordance with Rule 5:22(c), Prieto listed 195 assignments of error.2 On brief, Prieto only raised and argued a portion of them. Prieto failed to provide arguments for assignments of error 1, 2, 10, 13, 15, 16, 17, 20, 21, 22, 23, 25, 27, 31, 32, 33, 39, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 80, 92, 97, 98, 99, 100, 108, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 122, 125, 126, 128, 129, 134, 135, 136, 137, 138, 140, 141, 142, 143, 144, 145, 146, 147, 148, 150, 154, 155, 156, 157, 161, 162, 163, 165, 167, 168, 169, 170, 181, 183, 184, 187, 188, 189, 190, and 194. Therefore, those assignments of error have been waived and will not be considered in this opinion. Rule 5:27(d); Andrews v. Commonwealth, 280 Va. 231, 252, 699 S.E.2d 237, 249 (2010) (“Lack of an adequate argument on brief in support of an assignment of error constitutes a waiver of that issue.“), cert. denied, ___ U.S. ___,
In his brief, Prieto lists assignments of error that he contends are addressed in some of his arguments. A review of
Prieto addresses assignments of error 86 and 95 in footnote 5 on page 25 of his brief by merely stating the facts from the sentencing hearing upon which the assignments of error are based. Prieto provides no argument in support of either assignment of error. Thus, they have also been waived. Rule 5:27(d); Andrews, 280 Va. at 252, 699 S.E.2d at 249.
For assignments of error 36 and 193, Prieto‘s argument merely reiterates the assignments of error themselves. We have previously held that such reiteration is not a sufficient argument and will not support the assignment of error. Teleguz v. Commonwealth, 273 Va. 458, 473, 643 S.E.2d 708, 718 (2007), cert. denied, 552 U.S. 1191 (2008). Because Prieto has failed to argue these assignments of error, they are considered waived. Rule 5:27(d); Andrews, 280 Va. at 252, 699 S.E.2d at 249; Prieto I, 278 Va. at 382, 682 S.E.2d at 917.
In assignment of error 14, Prieto contends that Virginia statutes regarding victim impact testimony are unconstitutional as applied because “[they] require[] trial courts to allow statutory victims to testify,” which takes away the discretion of trial courts to weigh the probative and prejudicial value of such testimony. Prieto also argues that the statutes and the decisions of this Court have permitted trial courts to allow testimony that goes beyond just a glimpse of the victim‘s life or the loss to the family of the victim, instead allowing testimony that is prejudicial and cumulative.
In the argument accompanying assignments of error 81, 82, and 90, Prieto argues that his constitutional rights to a fair trial under the Sixth, Eighth, and Fourteenth Amendments were violated by the introduction of unnecessarily cumulative and inflammatory victim impact testimony leading to a fundamentally unfair sentencing proceeding and the risk that the death sentences were imposed in an arbitrary and capricious manner.
In assignments of error 85 and 139, Prieto contends that the circuit court erred in allowing the prosecutor to make improper arguments based on facts not in evidence and that the court further erred by not instructing the Commonwealth to refrain from arguing facts not in evidence.
In assignments of error 130 and 131, Prieto argues that his rights were violated by statements made by the Commonwealth during closing arguments that it was speaking for the victims in asking for the death penalty. Prieto contends that these statements lead to a fundamentally unfair sentencing proceeding and the risk that the death sentences were imposed by the jury in an arbitrary and capricious manner.
In assignment of error 172, Prieto argues that the circuit court erred in permitting Richard Barna, Juanita Anders, Anthony Anders, Elizabeth Raver, Matthew Raver, Veronica Raver, and Dr. John Fulton to testify about the effects the murders had on other family members because
A review of the record demonstrates that Prieto never raised any of the above arguments at the resentencing proceeding. Thus, they are all procedurally defaulted and will
C. Issues Previously Decided
Prieto assigns error to a number of issues that have previously been decided and rejected by this Court. As there is no reason to revisit these issues, we reject the following arguments based on our prior rulings.
1. Indictment and Aggravating Factors
In assignment of error 4, Prieto argues that, had the grand jury intended to indict him for a crime for which he would be subject to the death penalty, then it needed to include the aggravating factors in the two capital indictments. By failing to do so, he contends, the most that he should have been sentenced to was life imprisonment. We have previously considered and rejected this argument. Jackson v. Warden, 271 Va. 434, 450, 627 S.E.2d 776, 790 (2006) (“There is no constitutional requirement that a capital murder indictment include allegations concerning aggravating factors.“), cert. denied, 549 U.S. 1122 (2007); Muhammad v. Commonwealth, 269 Va. 451, 494, 619 S.E.2d 16, 40 (2005) (“We hold that aggravating factors are not constitutionally required to be recited in a capital murder indictment.“), cert. denied, 547 U.S. 1136 (2006).
In assignment of error 12, Prieto argues that Virginia‘s death penalty statutes are unconstitutional because:
- The death penalty statutes fail to adequately direct the jury regarding how to evaluate the aggravating factors of vileness or future dangerousness or mitigating factors so as to prevent the arbitrary and capricious imposition of the death penalty.
- Unadjudicated criminal acts can be considered for the finding of future dangerousness.
- Hearsay in the post-sentence report can be considered.
- The sentence of death is unable to be set aside upon a showing of good cause.
- The proportionality and the passion/prejudice review conducted by this Court are not consistent with the Eighth Amendment and other federal or state constitutional provisions.
We rejected these same arguments in numerous prior opinions as set forth in our decision addressing Prieto‘s previous appeal and, therefore, will not review them again. Prieto I, 278 Va. at 415-16, 682 S.E.2d at 937.
3. Reference to General Public for Future Dangerousness
In assignment of error 34, Prieto argues that the circuit court erred when it permitted the Commonwealth to refer to his future dangerousness to the general public when the only “society” he would ever be a part of if convicted would be prison society. We have previously rejected the argument that the only society that the jury should consider is prison society. Schmitt v. Commonwealth, 262 Va. 127, 149-50, 547 S.E.2d 186, 201-02 (2001) (citing Lovitt v. Commonwealth, 260 Va. 497, 516-17, 537 S.E.2d 866, 878-79 (2000), cert. denied, 534 U.S. 815 (2001)), cert. denied, 534 U.S. 1094 (2002).
4. Prieto‘s California Death Sentence
In assignments of error 35 and 105, Prieto argues that the circuit court erred in admitting two certified copies of his capital convictions from California because they showed he had been sentenced to death. Prieto contends that admitting this evidence violated his rights under the Eighth and Fourteenth Amendments because it undercuts the responsibility the jury should feel in sentencing a person to another death sentence. We already addressed this issue in Prieto‘s first appeal and found that there was no error in the admission of such evidence. Prieto I, 278 Va. at 413-15, 682 S.E.2d at 936.
D. Recusal of Judge Bellows
On January 29, 2010, Prieto filed a motion for recusal of Judge Bellows on the grounds that Judge Bellows “presided over all stages of the [second of the two trials encompassed by Prieto I], which resulted in a capital murder conviction and death sentence” and his “involvement in – and statements made during – that trial and sentencing create a reasonable appearance of bias against the defendant.” Judge Bellows denied this motion. Prieto alleges that this denial was in error.
Under Canon 3E(1) of the Canons of Judicial Conduct, “A judge shall disqualify himself or herself in a proceeding in
Prieto alleges that Judge Bellows’ statements and demeanor at the previous sentencing provide a reasonable appearance of bias. Specifically, he states that Judge Bellows was overly emotional in explaining his reasoning for entering the death sentences in Prieto‘s prior sentencing, at times “appear[ing] to become so over-wrought that he was forced to pause and regain composure before continuing.” Prieto quotes Judge Bellows’ “highly emotional description of the victims and the crime“:
On the night you murdered — you executed these children and that is what they were, children. They were just coming out of college with the brightest of
prospects. They are in love with each [other] and with their lives. They had barely begun to experience and enjoy the pleasures and satisfactions of life. On the night you executed them, you turned the final moments of their lives on this earth into what can only be described as a living hell. It is simply beyond the powers of human comprehension to imagine the desperation, horror and sheer terror that you inflicted on Ms. Raver and Mr. Fulton in the very last moments of their young lives.
As to the impact of your crimes on the survivors of the children you slaughtered, the families they left behind, one does not need to imagine what your killings did to them for they have borne witness in this courtroom to the devastation you‘ve left in your wake.
Finally, Prieto alleges that Judge Bellows “entirely discounted” Prieto‘s mitigating evidence. Prieto argues that these factors combine to permit a reasonable perception of bias against him in resentencing.
Judge Bellows outlined his reasons for declining to recuse himself in what can only be described as a thoughtful and thorough 35-page memorandum decision. He emphasized holdings by this Court clarifying instances that are not legitimate grounds for recusal, including the previous imposition of the death penalty against a given defendant, Justus v. Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981), cert. denied, 455 U.S. 983 (1982), and the formation or expression of an opinion as to the guilt of the accused based on information acquired during
Additionally, Judge Bellows’ written discussion of these issues notes that, “in examining the question of whether a trial judge has exhibited personal bias or prejudice, courts almost always require proof that the judge was influenced by . . . an extrajudicial source.” See United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). When, however, the recusal motion is based on comments occurring in the record, Judge Bellows correctly recognized that those comments must be taken in the context of the record as a whole. Thus, “a judge should recuse himself or herself whenever a reasonable person, with knowledge of all the facts of the case, would question the judge‘s impartiality.” United States v. Mikalajunas, No. 91-5119, 1992 U.S. App. LEXIS 21054, at *6 (4th Cir. 1992) (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988)).
Judge Bellows accurately characterized the prevailing law in his memorandum decision, and it is clear that his refusal to recuse himself was not an abuse of discretion. See, e.g., Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (stating that a review for abuse of discretion “includes review to determine that the discretion was not guided by erroneous legal conclusions,” and finding no abuse of discretion where the trial judge‘s decision reflected proper application of
Finally, the record does not support Prieto‘s allegation that Judge Bellows entirely discounted Prieto‘s mitigating evidence as being of no value in the analysis. To the contrary, the record states that Judge Bellows “carefully considered” that evidence but found that it did not warrant a reduction in penalty.
Judge Bellows discussed each of these issues exhaustively in his memorandum decision, which represents a fair construction of the law of the Commonwealth and interpretation of the facts. We accordingly conclude that he did not abuse his discretion in refusing to recuse himself. See, e.g., Grattan, 278 Va. at 620, 685 S.E.2d at 644.
Prieto argues via multiple assignments of error that the circuit court erred in permitting victim impact testimony that was beyond the scope of
1. Testimony of Major Deidre Raver
Prieto alleges that victim impact statements made by Rachael Raver‘s sister, Major Deidre Raver, herself an alleged victim of an unreported rape many years prior, were improper and highly prejudicial. In particular, he objected to the following testimony by Major Raver:
[L]ook at me, I‘m 50 years old, I never got married. I don‘t think I ever will, and I‘m not — it‘s one of those things where I don‘t think I‘m capable of having a relationship after that.
I mean, I myself was a rape survivor when I was very young, and I watched that — that guy got away with it. So now I have my sister who dies.
Major Raver then further explained her psychological injury:
Basically, you know, as a rape survivor myself, I had a lot of feelings of just guilt that my sister got murdered because I wasn‘t there to save her. . . . [B]eing a survivor yourself and a victim, and then you have a family member who is a victim, and they‘re younger than you, and you‘re not there to protect them and save them, the amount of guilt, it just — it makes it impossible to grieve.
Prieto argues that the circuit court erred in two ways: first, that the curative instruction was insufficient given the prejudicial nature of Major Raver‘s remarks and the time the jury had to ruminate over the remarks while they were dismissed from the courtroom; and second, that Major Raver‘s psychological
Generally, this Court has held and continues to hold that “victim impact testimony regarding a capital offense is admissible because it is probative of the depravity of mind component of the vileness predicate.” Andrews, 280 Va. at 291-92, 699 S.E.2d at 272 (citing Weeks v. Commonwealth, 248 Va. 460, 476, 450 S.E.2d 379, 389-90 (1994), cert. denied, 516 U.S. 829 (1995)).
A. Upon a finding that the defendant is guilty of an offense which may be punishable by death, a proceeding shall be held which shall be limited to a determination as to whether the defendant shall be sentenced to death or life imprisonment. . . .
A1. In any proceeding conducted pursuant to this section, the court shall permit the victim, as defined in § 19.2-11.01, . . . to testify in the presence of the accused regarding the impact of the offense upon the victim. The court shall limit the victim‘s testimony to the factors set forth in clauses (i) through (vi) of subsection A of § 19.2-299.1.
Virginia law is in accord with the decisions of the Supreme Court of the United States, holding that a ” ‘[s]tate may legitimately conclude that evidence about the victim and about the impact of the murder on the victim‘s family is relevant to the . . . decision as to whether or not the death penalty shall be imposed.’ ” Beck v. Commonwealth, 253 Va. 373, 381, 484 S.E.2d 898, 903 (1997) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)), cert. denied, 522 U.S. 1018 (1997). “So long as [the] prejudicial effect does not outweigh its probative value, such evidence is beneficial to the determination of an individualized sentence as is required by the Eighth Amendment.” Beck, 253 Va. at 382, 484 S.E.2d at 904 (citing Payne, 501 U.S. at 825).
Because of its relevance to the vileness aggravating factor only, this Court has held that victim impact testimony must be confined to the crime for which the defendant is being sentenced. Andrews, 280 Va. at 291-92, 699 S.E.2d at 272. As we explained in Andrews, “[v]ictim impact testimony regarding unadjudicated criminal conduct . . . is not relevant to the vileness predicate because the testimony concerns an offense
Prieto argues that this Court should consider Major Raver‘s own rape to be an unadjudicated act under Andrews and, accordingly, should find it irrelevant to the vileness aggravating factor and therefore inadmissible. We disagree. Andrews pertains to instances in which there is some allegation that the defendant being sentenced also committed and should be held responsible for the unadjudicated act. No reasonable juror could conclude from Major Raver‘s testimony that she was attempting to implicate Prieto in her own rape in any way.
Major Raver‘s victim impact testimony as a family member of the deceased is permitted under
Here, the circuit court directed the witness to narrow the scope of her testimony to the impact that her sister‘s murder had on her own life. Her own previous experiences were raised
Additionally, we must consider whether Major Raver‘s original statement that her rapist “got away with it” was so prejudicial as to warrant a mistrial. In this evaluation, we review whether the jury was “promptly, explicitly and carefully instructed” to disregard the inappropriate testimony, Lewis v. Commonwealth, 211 Va. 80, 84, 175 S.E.2d 236, 238 (1970), and consider the nature of the arguably inflammatory material in relation to the rest of the evidence in the case. Fowlkes v. Commonwealth, 52 Va. App. 241, 252, 255, 663 S.E.2d 98, 103, 105 (2008).
There is no question that the trial judge‘s instruction was explicit and careful. Prieto argues that it was not prompt in that it was not immediate because the jury was dismissed while the circuit court heard oral argument on the matter, leaving the jurors with time to ruminate on Major Raver‘s statement. Judges routinely abide by this practice, however, when considering issues of consequence. Indeed, judges must be given the opportunity, when necessary, to hear thorough argument on an evidentiary issue before ruling. We find that the circuit
Finally, when the nature of the challenged testimony is viewed in light of the context and other incidents of the case, it becomes clear that the trial judge did not abuse his discretion in refusing to grant a second mistrial. No accusation was ever made that Prieto had any connection with Major Raver‘s rape. Despite having had time to ruminate over her statement, in the situation presented, no reasonable juror would assume that he or she was implicitly invited, as Prieto alleges, to levy additional retribution upon him arising from unrelated crimes committed long ago against Major Raver. We accordingly find that the circuit court did not abuse its discretion in refusing to grant a mistrial or bar subsequent testimony from Major Raver.
2. Testimony of Lisa Barajas
Lisa Barajas testified to events that took place in California in 1990 in which she, her mother Emily Devila, and Yvette Woodruff were kidnapped and raped by Prieto and two other
“The use of prior criminal convictions and prior unadjudicated criminal conduct as evidence of [the] ‘future dangerousness’ [predicate of a capital offense] has been consistently approved” by this Court. Watkins v. Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50, 56 (1989), cert. denied, 494 U.S. 1074 (1990). The scope of testimony regarding prior acts, as probative of future dangerousness, is limited to the actual events and does not extend to the impact of the events on the victims.
Prieto has two primary objections. The first is that Barajas’ testimony addressed the actions of Prieto‘s codefendant rather than Prieto himself and is therefore irrelevant and prejudicial. The second is that portions of the testimony constitute victim impact statements, which are not admissible
The first issue arises in part because California law does not distinguish convictions between principal actors and agents in the second degree or aiders and abettors. See Prieto, 66 P.3d at 1140 (“[D]efendant could be found guilty if the charged crime was the natural and probable consequence of another crime that he intentionally aided and abetted.“). The record indicates that each man was the primary rapist of a different woman, and Barajas made clear throughout her testimony that Prieto was not her physical rapist. Prieto seeks, therefore, to exclude her testimony as irrelevant to his future dangerousness.
Barajas’ testimony, however, was highly relevant to Prieto. Barajas indicated that the three men worked together in a coordinated effort to commit the offenses. Although she mentioned her own rape and that she was bitten during it, a review of her testimony reveals that it was narrowly tailored to describing the general events and Prieto‘s involvement in the crimes. In fact, the most inflammatory remarks, during which she described lying in the dirt pretending to be dead waiting to be stabbed, are in fact those most directly related to Prieto: she recounted him having a conversation with her rapist and asking her primary attacker whether he had killed her yet. Her testimony was thus highly probative as to the future
Prieto also argues that Barajas’ testimony strayed into impermissible “victim impact” territory when describing seeing “Yvette, like sitting, slumped up against the tree.” A review of the testimony shows that this argument is baseless. Barajas did not elaborate on the impact of the trauma on her life; she merely described the events as they occurred and explained her location in relation to Yvette. The circuit court was well within its discretion in admitting this testimony as relevant to the future dangerousness aggravating factor.
3. Testimony of Velda Jefferson
Prieto argues that the circuit court erred in allowing victim impact testimony arising from unadjudicated acts. Unadjudicated acts are admissible in the sentencing phase of a capital trial in Virginia, but only as to the issue of future dangerousness. Stockton v. Commonwealth, 241 Va. 192, 209, 402 S.E.2d 196, 206 (1991), cert. denied, 502 U.S. 902 (1991). Victim impact testimony addresses the vileness of a crime and so is only appropriate in the context of the offense for which the defendant is being sentenced.
The testimony in dispute is that of Velda Jefferson, the mother of Veronica Jefferson. Veronica was found dead and partially naked in a school yard in 1988 at the age of 28, an
Prieto‘s only timely objection relating to victim impact testimony concerned Velda‘s statements that Veronica was in a committed relationship with her boyfriend. At sidebar, the Commonwealth clarified that the mother‘s testimony was offered not as victim impact testimony but rather to show that it was unlikely that any sexual contact with Prieto was consensual. It was certainly within the purview of the circuit court to admit this factual testimony.
Prieto also assigns error to other aspects of Velda‘s testimony, such as the last time she spoke to Veronica. There was no contemporaneous objection that this constituted inadmissible victim impact testimony. Accordingly, as discussed in Part B, supra, these assignments of error are defaulted under
F. Unadjudicated Acts Arising from the Murder of Veronica Jefferson
This Court has previously held evidence of unadjudicated acts to be admissible in sentencing as probative of future dangerousness. Stockton, 241 Va. at 209, 402 S.E.2d at 206. We have rejected Prieto‘s argument that evidence of an unadjudicated crime is not reliable. Beaver v. Commonwealth, 232 Va. 521, 529, 352 S.E.2d 342, 347 (1987), cert. denied, 483 U.S. 1033 (1987). Indeed, we have said that ” ‘a trier of fact called upon to decide whether . . . to impose the death penalty is entitled to know as much relevant information about the defendant as possible.’ ” Quesinberry v. Commonwealth, 241 Va. 364, 379, 402 S.E.2d 218, 227 (1991) (omission in original) (quoting Beaver, 232 Va. at 529, 352 S.E.2d at 347), cert. denied, 502 U.S. 834 (1991). We have also rejected the argument that such testimony is inherently prejudicial. Gray v. Commonwealth, 233 Va. 313, 346-47 & n.8, 356 S.E.2d 157, 175-76 & n.8 (1987), cert. denied, 484 U.S. 873 (1987).
The Supreme Court of the United States has rejected the argument that specific prior unadjudicated acts must be established beyond a reasonable doubt to be admissible. See generally Huddleston v. United States, 485 U.S. 681, 690 n.7 (1988) (“[T]he trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by [even] a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find [that the prior act took place].“). See also Pavlick v. Commonwealth, 27 Va. App. 219, 227, 497 S.E.2d 920, 924 (1998) (holding that the Huddleston standard for proof that a prior bad act took place is in accord with Virginia law). With respect to the sentence phase of a capital murder trial, this Court has specifically rejected the argument that individual unadjudicated acts require an elevated degree of reliability, requiring only that the evidence on the whole must be sufficient to permit a jury to make the ultimate finding of future dangerousness or vileness beyond a reasonable doubt in order to impose the death penalty. Walker v. Commonwealth, 258 Va. 54, 64-66, 515 S.E.2d 565, 571-72 (1999), cert. denied, 528 U.S. 1125 (2000).
It is true that, in some previous capital cases, the Commonwealth provided this sort of nexus. In Beaver, for example, the prosecution presented an expert witness who testified that the defendant‘s psychological profile was “a highly consistent profile reflecting personality traits of long duration. It is not likely to change much with time . . . . Treatment or rehabilitation programs tend not to be very successful for individuals with this profile type.” 232 Va. at 532, 352 S.E.2d at 348-49 (emphasis omitted).
On the other hand, neither this Court nor the Supreme Court of the United States has ever specifically required expert testimony providing this nexus, stating instead that the jury was entitled to as much information as possible in the sentencing phase so as to make an informed decision based on the
G. Mitigation Instructions and Testimony
1. Mitigation “of the Offense”
Prieto alleges that the circuit court erred, both in instructing the jury and in the verdict forms, by including the allegedly limiting term “of the offense” following “aggravation and mitigation.” Specifically, the jury verdict forms stated that “We the jury . . . having considered all the evidence in aggravation and mitigation of the offense. . . .” Prieto argues that this erroneously narrowed the jurors’ focus to the offense at hand and would lead them to believe that they could not consider the larger mitigating evidence of his early life.
This argument is without merit. The language on the verdict forms tracks the statutory language from
2. Limitations on Mitigating Testimony
Prieto argues that the circuit court erred in unduly limiting mitigating evidence in testimony from Dr. James Garbarino, Teodora Alvarado, and Yolanda Loucel. But a review of the record clearly shows that objections sustained during the questioning pertained to the method of questioning, such as leading the witnesses or posing vague questions. In all instances the circuit court allowed counsel the opportunity to rephrase the questions to obtain the desired information. Although the scope of admissible mitigating evidence is wide, it is in the sound discretion of the circuit court to supervise the presentation of witnesses. See, e.g., Williams v. Commonwealth, 248 Va. 528, 542, 450 S.E.2d 365, 374 (1994) (stating that the determination of the permissible scope of witness testimony is “committed to the sound discretion of the trial court“), cert. denied, 515 U.S. 1161 (1995). Here, there is no evidence that the circuit court abused its discretion or that its rulings were prejudicial to Prieto in any way.
H. Appointment of the Commonwealth‘s Mental Health Expert
Prieto does not dispute that Dr. Samenow satisfied these professional requirements. Instead, Prieto argues that Dr. Samenow was not qualified for appointment because he “has exhibited significant bias” throughout his career “against the possibility of mitigating evidence based on a defendant‘s history or background.”
To support this claim, Prieto first relies on Dr. Samenow‘s opinions, expressed in a book and newspaper article, that criminals think differently, that sociological and physiological
Even if Dr. Samenow is biased against mitigating evidence as Prieto alleges, we fail to see how that bias disqualified Dr. Samenow from being appointed as the Commonwealth‘s mental health expert under
I. Right Against Self-incrimination
Prieto asserts that the circuit court violated his Fifth Amendment right against self-incrimination by: (1) allowing Dr. Samenow to question him about the circumstances of the underlying offenses, (2) allowing Dr. Samenow to testify that he was uncooperative, and (3) allowing the Commonwealth to argue that it had “waited in vain to hear an ounce of remorse” from him. We address these arguments in turn.
1. Questions About Underlying Offenses
Prieto claims that the circuit court erred in allowing Dr. Samenow to question him about the underlying offenses during the evaluation. “[W]here a defendant limits his proposed mitigation evidence to his history and character and invokes his right to remain silent regarding the criminal charges against him,” Prieto argues, “the Commonwealth cannot force the defendant to choose between his constitutional right to remain silent and his constitutional right to present relevant mitigating evidence.” Accordingly, Prieto maintains, the Commonwealth should have been “barred from forcing [him] to answer questions about his offenses when his mental state is not at issue.”
In light of these holdings, we believe that the circuit court did not err in allowing Dr. Samenow to question Prieto about the underlying offenses, because Prieto waived his Fifth Amendment rights when he gave notice of his intention to use his mental health expert‘s evaluation as mitigating evidence.
2. Prieto‘s Failure to Cooperate
Prieto contends that Dr. Samenow‘s testimony that he was uncooperative during the evaluation was not only false, but it was also “punishment . . . for [his] legitimate exercise of his
3. Commonwealth‘s Comment on Prieto‘s Lack of Remorse
Prieto claims that “[t]he Commonwealth exploited [his] silence in violation of his Fifth Amendment rights and in violation of Article 1, Section 8 of the Virginia Constitution, when [it] argued in closing argument that it ha[d] ‘waited in vain to hear an ounce of remorse leak out anywhere, but there was none.” We disagree.
To determine whether a prosecutor‘s comment violates a defendant‘s right to remain silent, we have set forth the following test: “[W]hether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the
J. Jury View of Red Onion State Prison
Prieto asserts that the circuit court erred in denying his motion for a jury view of Red Onion State Prison under
As we have previously held and as discussed in Part II.C.3, supra, the future dangerousness aggravating factor refers not to the prison population but to society as a whole. The circumstances of Red Onion were, therefore, irrelevant and would not have been an aid to the jury in their evaluation of Prieto‘s future dangerousness.
Under
We do not believe that a view of Red Onion was necessary to a just decision on Prieto‘s future dangerousness. We have
to exclude, as irrelevant, evidence not bearing on the defendant‘s character, prior record, or the circumstances of his offense. Thus, the relevant inquiry is not whether [Prieto] could commit criminal acts of violence in the future but whether he would. . . . Accordingly, the focus must be on the particular facts of [Prieto‘s] history and background, and the circumstances of [the] offense. . . . Evidence regarding the general nature of prison life in a maximum security facility is not relevant to [the determination of future dangerousness], even when offered in rebuttal.
Burns v. Commonwealth, 261 Va. 307, 339-40, 541 S.E.2d 872, 893 (2001) (internal quotation marks and citations omitted), cert. denied, 534 U.S. 1034 (2001). Since evidence on the general nature of prison life in a maximum-security facility was not even relevant to the determination of Prieto‘s future dangerousness, we fail to see how a view of such a facility was necessary to a just decision on that issue. Consequently, we hold that the circuit court did not abuse its discretion in denying Prieto‘s motion for a view of Red Onion.
K. Vileness Aggravating Factor
Prieto asserts that the circuit court erred in denying his motion to declare the vileness aggravating factor in
Prieto further claims that, “[b]ecause Richardson compels recognition of Virginia‘s vileness sub-elements as offense elements, Ring v. Arizona, 536 U.S. 584 (2002), requires the jury to find at least one of the three vileness elements beyond a reasonable doubt.” “To satisfy Ring,” he argues, “Virginia‘s capital sentencing scheme must require that at least one specific vileness element be proven beyond a reasonable doubt and agreed upon unanimously by the jury.” Since it does not so require, he maintains that it “cannot be applied consistent with the federal constitution.”
We find Prieto‘s contention unpersuasive. To begin with, in Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 104 (1980), we rejected the argument that a jury must identify the element or elements of the vileness aggravating factor that it relied on in reaching its decision. Id. at 213, 258 S.E.2d at 791-92. And just a few years ago, we determined that our decision in Clark was unaffected by
In Jackson, the defendant argued that, under Richardson, “due process requires unanimity not only as to the aggravating factor of vileness but also to one or more of its composite elements.” Id. at 434, 587 S.E.2d at 541. We disagreed, stating:
The Supreme Court [of the United States] explained in Richardson that, for example, the jury must unanimously find force as an element of the crime of robbery, but whether the force is created by the use of a gun or a knife is not an element of the crime and therefore does not require jury unanimity. In this case, the element the jury was required to find unanimously to impose the death sentence was the aggravating factor of vileness, which requires the defendant‘s actions be outrageously or wantonly vile, horrible, or inhuman. Depravity of mind, aggravated battery, and torture are not discrete elements of vileness that would require separate proof but rather are several possible sets of underlying facts [that] make up [the] particular element. Neither Clark nor Richardson, therefore, requires juror unanimity on these points.
Id. at 434-35, 587 S.E.2d at 541 (alterations in original) (internal quotation marks and citations omitted).
This reasoning is unaffected by Ring. That case involved Arizona‘s capital-sentencing scheme, which mandated that a judge — not a jury — determine the presence or absence of certain aggravating factors necessary to impose a sentence of death. Ring, 536 U.S. at 588. The Supreme Court of the United States held that the capital-sentencing scheme was unconstitutional
Accordingly, we conclude that the circuit court did not err in denying Prieto‘s motion to declare the vileness aggravating factor in
L. Request for Grand Jury Information
Before the resentencing proceeding, Prieto sought to challenge the composition of the grand jury that indicted him in 2005. To that end, he moved for information on each grand jury from January 2003 through November 2005. The circuit court
Under
Prieto contends that the circuit court erred in finding that he waived his request for grand jury information under
We have long held to the rule that a defendant‘s objection to the grand jury must be made before a plea is entered. In Curtis v. Commonwealth, 87 Va. 589, 13 S.E. 73 (1891), for instance, the defendant‘s first-degree murder conviction was set aside by the circuit court. On retrial, the defendant moved to quash the indictment “on the ground that it did not affirmatively appear from the record that a venire facias had been issued to summon the grand jury by which the indictment had been found.” Id. at 591, 13 S.E. at 74. The circuit court denied the motion, and we affirmed that ruling. In doing so, we stated that
it is well settled that objections to the mode of summoning a grand jury, or to the disqualifications of particular jurors, must be made at a preliminary stage of the case, that is, before a plea to the merits;
otherwise they will be considered as waived unless, indeed, the proceeding be void ab initio.
In a more recent decision, Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368 (1952), we rejected the defendant‘s claim that, because racial discrimination in the selection of grand jurors is prohibited by the
There are many important interests served by placing such limitations on a defendant‘s right to object to the composition of the grand jury. Those interests, as the Supreme Court of the United States has observed, include:
the possible avoidance of an unnecessary trial or of a retrial, the difficulty of making factual determinations concerning grand juries long after the indictment has been handed down and the grand jury disbanded, and the potential disruption to numerous convictions of finding a defect in a grand jury only after the jury has handed down indictments in many cases.
Coleman v. Thompson, 501 U.S. 722, 745-46 (1991).
Prieto further argues that, even if he waived his request for grand jury information, the circuit court nonetheless erred in denying his motion because good cause was shown to grant relief from the waiver under
Since Prieto failed to show good cause why he should be excused under
To mount a
Under
But it cannot be inferred that the jury list shall be opened for inspection to members of the bar or private citizens without assigning good and sufficient reasons therefor. The proper administration of justice requires that the jury list be kept secret until the
jurors are drawn for service, unless good cause be shown. The jury list is in no sense a public record to be exposed to the general public. Exposure of the list to the public could lead to tampering with and harassment of potential jurors and seriously affect their impartiality and the proper administration of justice. Even when good cause is shown, the inspection of the list shall be permitted only under the “watchful eye” of the court, and copying or photostating the list is not to be permitted.
Id. at 640-41, 194 S.E.2d at 712.
Prieto contends that the good-cause standard enunciated in Archer does not apply to the disclosure of an expired jury list because there is no risk that its release will affect the proper administration of justice. Even if that standard does apply, he continues, it was met here, since the circuit court granted him access to the jury list for the 2010 term.
The disclosure of an expired jury list does not raise the same tampering or harassment concerns that the disclosure of a current jury list does, but it still raises privacy concerns. A jury list contains sensitive information that should be protected. We thus believe that a good-cause standard is appropriate for the release of both a current and expired jury list.
The Commonwealth does not dispute that Prieto satisfied the good-cause standard for the disclosure of the jury list for the 2010 term, for we have previously held that good cause is shown when a defendant seeks access to the jury list from which his
We disagree with the Commonwealth that the jury lists for the 2008 and 2009 terms were irrelevant to Prieto‘s investigation into whether Fairfax County‘s jury selection process violated his
N. Fair-Cross-Section Claim
Prieto asserts that the circuit court erred in denying his motion to strike the qualified jury list because Fairfax County‘s jury selection process systematically excluded African Americans and Hispanics, in violation of his
“To establish a prima facie violation of the fair-cross-section requirement,” the Supreme Court of the United States has instructed, “a defendant must prove that: (1) a group qualifying as ‘distinctive’ (2) is not fairly and reasonably represented in jury venires, and (3) ‘systematic exclusion’ in the jury selection process accounts for the underrepresentation.” Berghuis v. Smith, 559 U.S. ___, ___, 130 S. Ct. 1382, 1392 (2010) (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)). The circuit court found that Prieto satisfied the first element because “African-Americans and Hispanics are clearly distinctive groups in the community.” But it determined that he did not meet the second element because the alleged disparities between the African-American and Hispanic populations in Fairfax County and the number of African-
According to Prieto‘s expert, Dr. Andrew A. Beveridge, by an “absolute disparity” measure,3 African-Americans and Hispanics were underrepresented by 1.98% and 2.36% in Fairfax County‘s venires. And by a “comparative disparity” measure,4 African-Americans and Hispanics were underrepresented by 22.05% and 31.51%.5 The Supreme Court has not specified which of these measurements should be used in analyzing a fair-cross-section claim and has recently observed that both are imperfect because they “can be misleading when, as here, ‘members of the distinctive group comp[ose] [only] a small percentage of those eligible for jury service.’ ” Berghuis, 559 U.S. at ___, 130 S. Ct. at 1393 (alterations in original) (quoting People v. Smith, 615 N.W.2d 1, 2-3 (Mich. 2000)). We need not resolve
The absolute disparities here (1.98% and 2.36%) fall well short of the percentages in cases in which the Supreme Court determined that a prima facie fair-cross-section violation had been made out. See, e.g., Duren, 439 U.S. at 365-66 (39% absolute disparity); Castaneda v. Partida, 430 U.S. 482, 486-87 & n.7 (1977) (40% absolute disparity); Jones v. Georgia, 389 U.S. 24, 24 n.* (1967) (14.7% absolute disparity). What is more, courts have upheld jury selection procedures with higher absolute disparities. See, e.g., United States v. Mitchell, 502 F.3d 931, 950 (9th Cir. 2007) (4.15%); United States v. Orange, 447 F.3d 792, 798-99 (10th Cir. 2006) (3.57%); United States v. Royal, 174 F.3d 1, 10 (1st Cir 1999) (2.97%); United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981) (7.2%); United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1126-27 (5th Cir. 1981) (11.5%). Indeed, “[c]ourts addressing the question of whether a given absolute disparity constitutes ‘substantial underrepresentation’ have held that absolute disparities between 2.0% and 11.5% do not constitute substantial underrepresentation.” Ramseur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992) (footnote omitted). Similarly, courts have upheld
Because neither the absolute nor comparative disparities presented here establish the second element of a prima facie fair-cross-section claim, we conclude that the circuit court did not err in denying Prieto‘s motion to strike the qualified jury list.
O. Statutory Review
Under
Even though Prieto does not assign error or provide any argument for this portion of the statutory review, we must still conduct the review. Gray v. Commonwealth, 274 Va. 290, 303, 645 S.E.2d 448, 456 (2007), cert. denied, 552 U.S. 1151 (2008). Based on our review of the record and consideration of the arguments presented, we find no basis to conclude that the jury was influenced by passion, prejudice, or any other arbitrary factor in sentencing Prieto to death.
2. Excessive or Disproportionate Sentence
As for this portion of the statutory review, Prieto simply argues that his death sentences were excessive and disproportionate based on “the incredible mitigation evidence” he presented, “the dubiousness of guilt,” and “the Commonwealth‘s improper demand for justice in its closing argument.” In light of our discussion above and our previous holding that “the evidence [was] sufficient to prove beyond a reasonable doubt that Prieto was the immediate perpetrator of the murders of Raver and Fulton,” Prieto I, 278 Va. at 401, 682 S.E.2d at 928, we find no merit in Prieto‘s contention.
This does not end our statutory review, however, for we must still “determine whether other sentencing bodies in this
In undertaking this review, we have looked at similar cases in which, after a finding of both aggravating factors of future dangerousness and vileness, a death sentence was imposed (1) for the willful, deliberate, and premeditated killing of a person during the commission of, or subsequent to, a rape (
III. CONCLUSION
For the foregoing reasons, we find no reversible error in the judgment of the circuit court. Furthermore, we find no reason to commute or set aside the sentences of death. We thus will affirm the circuit court‘s judgment.
Affirmed.