FROM THE COURT OF APPEALS OF VIRGINIA
The opinion of the court was delivered by: Senior Justice Elizabeth B. Lacy
Present: Koontz, Kinser, and Lemons, JJ., and Carrico, Russell and Lacy, S.JJ.
OPINION BY SENIOR JUSTICE ELIZABETH B. LACY
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 His convictions were affirmed by the Court of Appeals in an unpublished memorandum opinion.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.
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 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.
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.
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. 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 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.
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 consecutive life sentences for non-homicide 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, 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 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, 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.
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 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.
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).*fn1 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."*fn2
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 "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 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.*fn3
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 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 ...