Prieto v. Commonwealth ( 2012 )

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan,
and Powell, JJ., and Lacy, S.J.
ALFREDO ROLANDO PRIETO
OPINION BY
v. Record No. 110632 JUSTICE LEROY F. MILLETTE, JR.
January 13, 2012
COMMONWEALTH OF VIRGINIA
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 Code § 19.2-264.2, and again recommended two
death sentences. On December 16, 2010, the circuit court
entered a final order imposing the death penalty. For the
reasons that follow, we find no error in the circuit court's
judgment and thus will affirm.
1
I. BACKGROUND
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
1
In the first reported decision, we designated the two
separate trials conducted by the circuit court, the first of
which resulted in a mistrial as recounted in the initial appeal,
as Prieto I and Prieto II. We now refer to the first reported
decision as Prieto I and designate this appeal as Prieto II.
2
rape and murder by Prieto in California and another alleged but
unadjudicated rape and murder by him in Virginia. The jury also
heard mitigating evidence presented by Prieto, including
testimony as to the conditions of his traumatic upbringing
during a civil war in El Salvador and his exposure to gang
violence as a teenager in California. Because the evidence
presented during the resentencing proceeding was extensive, we
will specifically recount only those portions relevant to
preserved assignments of error as addressed in the Discussion,
infra.
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
3
the circuit court erred in not excluding evidence of various
unadjudicated acts; (4) whether the circuit court erred in its
verdict forms and jury instructions pertaining to aggravating
and mitigating evidence and impermissibly limited mitigating
testimony; (5) whether the circuit court erred in denying
Prieto's motion to bar Dr. Stanton E. Samenow as the
Commonwealth's mental health expert; (6) whether the circuit
court violated Prieto's right against self-incrimination in
permitting Dr. Samenow to inquire about the charged offenses and
other convictions in his evaluation, permitting him to report
that Prieto failed to cooperate, and permitting the Commonwealth
to state in closing that Prieto never expressed remorse; (7)
whether the circuit court erred in denying Prieto's motion for a
jury view of the state prison; (8) whether the circuit court
erred in denying Prieto's motions to strike Virginia's vileness
aggravating factor and declare it so arbitrary and unclear so as
to be unconstitutional; and (9) whether the circuit court erred
in denying Prieto's request for access to grand jury and petit
jury information and his motion to strike the jury pool.
Finally, we conduct the statutorily mandated review as to
whether the death sentences were imposed under the influence of
passion, prejudice, and other arbitrary factors, or are
excessive or disproportionate.
4
II. DISCUSSION
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. ___, 131 S. Ct. 2999 (2011); Prieto I, 278 Va.
at 381, 682 S.E.2d at 917.
In his brief, Prieto lists assignments of error that he
contends are addressed in some of his arguments. A review of
2
The assignments of error are designated by the number
Prieto has given them.
5
those arguments, however, demonstrates that they do not address
the assignments of error Prieto claims they do. As a result,
assignments of error 5, 6, 7, 8, 9, 11, 38, 54, 87, 106, 109,
123, 124, 132, 133, 153, and 179 have been waived because of
Prieto's failure to properly brief them. Rule 5:27(d); Andrews,
280 Va. at 252, 699 S.E.2d at 249; Prieto I, 278 Va. at 381, 682
S.E.2d at 917.
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.
6
B. Assignments of Error Defaulted
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.
7
In assignments of error 93, 101, 185, and 186, Prieto
contends that the circuit court erred in admitting photographs
of victims of a prior crime. The only argument Prieto presents,
which can be found in footnote 6 on page 25 of his brief, is
that the photograph in question should have been excluded "on
materiality grounds and under Va. Code Ann. § 19.2-264.4 as
interpreted by this Court in Andrews."
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 Code §§ 19.2-264.4(A1) and -299.1
only allow for victim impact testimony to be about the effect of
the crime on the person testifying.
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
8
not be considered on appeal. Rule 5:25; Prieto I, 278 Va. at
382, 682 S.E.2d 917-18; Teleguz, 273 Va. at 470, 643 S.E.2d at
716.
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).
9
2. Constitutionality of Virginia's Death Penalty Statutes
In assignment of error 12, Prieto argues that Virginia's
death penalty statutes are unconstitutional because:
(a) 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.
(b) Unadjudicated criminal acts can be considered for the
finding of future dangerousness.
(c) Hearsay in the post-sentence report can be considered.
(d) The sentence of death is unable to be set aside upon a
showing of good cause.
(e) 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
10
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
11
which the judge's impartiality might reasonably be questioned,
including but not limited to instances where . . . [t]he judge
has a personal bias or prejudice concerning a party." We have
stated that "in making the recusal decision, the judge must be
guided not only by the true state of his impartiality, but also
by the public perception of his fairness, in order that public
confidence in the integrity of the judiciary may be maintained."
Wilson v. Commonwealth, 272 Va. 19, 28, 630 S.E.2d 326, 331
(2006) (internal quotation marks and citation omitted). The
burden of proving a judge's bias or prejudice lies with the
party seeking recusal. Commonwealth v. Jackson, 267 Va. 226,
229, 590 S.E.2d 518, 519-20 (2004). We employ an abuse-of-
discretion standard to review recusal decisions. Wilson, 272
Va. at 28, 630 S.E.2d at 331.
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
12
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
13
judicial proceedings. Slayton v. Commonwealth, 185 Va. 371,
376, 38 S.E.2d 485, 488 (1946).
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
14
governing legal principles). Prieto offered no evidence or even
allegation of extrajudicial influence that would suggest bias.
In the course of his judicial duty to evaluate the jury's death
sentences, Judge Bellows was required by the laws of this
Commonwealth to consider the vileness of the crime. Given the
task set before him, it is neither surprising nor inappropriate
that the record contains emotional language. It is not required
nor desired that judges of the Commonwealth possess the ability
to utterly set aside all human emotion while discharging their
duties.
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.
15
E. Victim Impact Statements
Prieto argues via multiple assignments of error that the
circuit court erred in permitting victim impact testimony that
was beyond the scope of Code § 19.2-264.4(A1) or was unduly
prejudicial or irrelevant. As discussed in Part B, supra, his
arguments addressing the victim impact testimony generally –
that the testimony was cumulative and that it exceeded the
allowable scope of victim impact testimony by referring to the
impact on family members — were not preserved at trial and thus
are procedurally defaulted. He additionally assigns error to
the testimony of three specific witnesses, Major Deidre Raver,
Lisa Barajas, and Velda Jefferson, whose testimony we will
address in turn.
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.
16
Prieto moved for a mistrial, arguing that the testimony
implied "that this jury should give retribution for her personal
victimization" from crimes committed by another individual. The
circuit court, after temporarily excusing the jury to hear
argument, instructed Major Raver that she could not testify to
the circumstances of her own rape but could discuss any
psychological injury that she suffered as a result of what she
described as survivor's guilt following her sister's attack.
The jurors returned, and the circuit court instructed them to
"disregard Major Raver's statement that the person who raped her
got away with it and give it no further consideration in this
trial or in your deliberations."
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
17
testimony related to fallout from another crime not alleged to
have been committed by Prieto and should not have been admitted.
Prieto does not contend that Raver's comments subsequent to the
curative instruction exceeded the scope of the circuit court's
ruling. Thus, the issues before us are (1) whether the scope of
her testimony concerning the psychological harm that she
suffered was proper, and (2) whether the curative instruction
was sufficient so as not to require a mistrial.
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)). Code § 19.2-264.4 provides that:
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.
Code § 19.2-11.01(B) defines a victim as a person "who has
suffered physical, psychological or economic harm as a direct
18
result of the commission of a felony" and the "spouse, parent,
sibling, or legal guardian of such a person who . . . was the
victim of a homicide," among others.
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
19
unrelated to the capital offense upon which the defendant is
being sentenced." Id. at 292, 699 S.E.2d at 272.
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 Code §§ 19.2-11.01(B) and 19.2-
264.4. The proper scope of Major Raver's testimony must
therefore be evaluated as any other victim impact statement.
The scope of testimony in the sentencing phase is wide, and the
standard for exclusion of relevant evidence is whether the
prejudicial effect substantially outweighs its probative value.
Teleguz, 273 Va. at 482, 643 S.E.2d at 723. This is a matter of
discretion for the circuit court and is properly reviewed under
an abuse of discretion standard. Id.
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
20
in the context of this discussion. This testimony, however, was
not "so far removed from the victims as to have nothing of value
to impart" about the impact of the murder, Beck, 253 Va. at 385,
484 S.E.2d at 906, and the circuit court did not abuse its
discretion in allowing the testimony.
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
21
court's proper and prompt curative instruction upon the jury's
return immediately after hearing oral argument was appropriate
and sufficient to meet the standard set forth in Lewis. As we
have stated in the past, "[a] jury is presumed to have followed
the instructions of the trial court." Muhammad, 269 Va. at 524,
619 S.E.2d at 58. We therefore have no basis from which to
conclude that a mistrial was necessary.
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
22
men, and Yvette was murdered. Prieto was convicted of "(1) one
count of first degree murder with a robbery-murder, a
kidnapping-murder, and a rape-murder special circumstance; (2)
two counts of attempted willful, deliberate, and premeditated
murder; (3) two counts of attempted robbery; (4) two counts of
robbery; (5) three counts of kidnapping for robbery; (6) three
counts of forcible rape; and (7) one count of possession of a
firearm by a felon." People v. Prieto, 66 P.3d 1123, 1130-31
(Cal.) (internal citations omitted), cert. denied, 540 U.S. 1008(2003).
"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
23
for crimes other than the one for which the defendant is being
sentenced.
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
24
dangerousness aggravating factor, and it cannot be said that the
circuit court abused its discretion in allowing the testimony.
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, 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
25
apparent victim of rape and murder. In 1999, a DNA profile
implicated Prieto. Detectives and forensic officers were
brought forward to testify to the actual circumstances of the
murder and the discovery of DNA evidence from a vaginal swab of
Veronica. In addition, Velda testified briefly: her testimony
spanned only about eleven pages of transcript, about half of
which encompassed argument between counsel over objections about
the scope of the testimony.
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
Rule 5:25.
F. Unadjudicated Acts Arising from the
Murder of Veronica Jefferson
26
Prieto further alleges that, even if it did not constitute
victim impact testimony, the circuit court erred in admitting
testimony of unadjudicated acts arising from Veronica
Jefferson's murder. Specifically, Prieto argues (1) that if
unadjudicated acts are to be admitted, they require a high
threshold of reliability which is absent here, and (2) that due
to the decades of time elapsed since the commission of the
unadjudicated act, it is not indicative of future dangerousness
as required by Virginia law.
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, 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 (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
27
Va. 313, 346-47 & n.8, 356 S.E.2d 157, 175-76 & n.8, 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).
28
Prieto argues that his due process rights were violated
because the evidence of unadjudicated acts was not accompanied
by evidence suggesting its predictive reliability. The
Commonwealth did not provide expert testimony discussing the
predictive nature of events occurring decades prior to trial.
It does not appear that this Court has ever specifically
addressed whether the Commonwealth bears a burden, in proving
future dangerousness beyond a reasonable doubt, to present
expert witnesses to draw a nexus between past and future
behavior.
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
29
individual in question. Payne, 501 U.S. at 821. Thus, there is
no support for the argument that the law places such a burden on
the prosecution. Certainly, the defense had the opportunity to
refute both the accuracy and the predictive nature of this 20-
year-old allegation. Prieto failed to do so at trial.
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 Code § 19.2-
264.4 and is consistent with Virginia law. In addition, the
jury instructions given by the circuit court repeatedly refer
generally to evidence in mitigation without the phraseology "of
the offense." Finally, the jury's deliberation followed days of
mitigating evidence not directly related to the offense, with no
limiting instruction from the circuit court. A reasonable jury
30
would not have gathered from the circuit court's instructions
and the circumstances of the trial that it was compelled to
discount any of the evidence presented. Instead, the
instructions referred to consideration of all the mitigating
evidence.
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
31
Prieto contends that the circuit court erred in appointing
Dr. Samenow as the Commonwealth's mental health expert under
Code § 19.2-264.3:1(F). We disagree.
Code § 19.2-264.3:1 provides that, in the event of a
conviction, a defendant charged with capital murder intending to
present expert testimony to support a claim in mitigation
relating to his history, character, or mental condition, may be
subject to evaluation by one or more of the Commonwealth's own
mental health experts. The expert appointed must be "(i) a
psychiatrist, a clinical psychologist, or an individual with a
doctorate degree in clinical psychology who has successfully
completed forensic evaluation training as approved by the
Commissioner of Behavioral Health and Developmental Services and
(ii) qualified by specialized training and experience to perform
forensic evaluations." Code § 19.2-264.3:1(A), (F).
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
32
determinism merely provides excuses to criminals, and that
criminals freely choose their way of life. See Stanton E.
Samenow, Inside the Criminal Mind (2004); Stanton E. Samenow,
"Psyching Out Crime Excuses," The Washington Times, Aug. 25,
2004. Next, Prieto cites an opinion from the United States
Court of Appeals for the Fourth Circuit, in which one judge
noted: "Dr. Samenow's professed and public views make him
incompetent to aid a defendant in finding and presenting
mitigating factors at a defendant's sentencing phase." Ramdass
v. Angelone, 187 F.3d 396, 411 n.1 (4th Cir. 1999) (Murnaghan,
J., concurring in part and dissenting in part). Lastly, Prieto
points to Dr. Samenow's testimony that Prieto was "superficially
polite," uncooperative, and remorseless during the examination.
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 Code § 19.2-264.3:1(F). Unlike the circumstances
presented in Ramdass, Dr. Samenow was not appointed in this case
to "assist the defense in the preparation and presentation" of
mitigating evidence. Code § 19.2-264.3:1(A). Instead, he was
appointed to assist the prosecution in rebutting such evidence.
Code § 19.2-264.3:1(F). Thus, because there is no question that
Dr. Samenow satisfied the professional requirements for
appointment set out in Code § 19.2-264.3:1(A), we conclude that
33
the circuit court did not abuse its discretion in appointing him
as the Commonwealth's mental health expert under Code § 19.2-
264.3:1(F).
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."
34
We rejected a similar argument in Savino v. Commonwealth,
239 Va. 534, 391 S.E.2d 276, cert. denied, 498 U.S. 882 (1990).
There, the defendant claimed that Code § 19.2-264.3:1 violated
(among other things) his Fifth Amendment rights. Id. at 543-44,
391 S.E.2d at 281. We disagreed, holding that when a defendant
gives notice of his intention to use a mental health expert's
evaluation as mitigating evidence in accordance with Code
§ 19.2-264.3:1(E), he waives his right against the introduction
of psychiatric testimony. Id. at 544, 391 S.E.2d at 281. We
have since applied Savino's rationale to hold that Code § 19.2-
264.3:1(F) "do[es] not limit the scope of the expert's
examination to matters of mitigation" and that therefore the
Commonwealth's mental health expert may evaluate a defendant's
future dangerousness. Stewart v. Commonwealth, 245 Va. 222,
243, 427 S.E.2d 394, 408, cert. denied, 510 U.S. 848 (1993).
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
35
constitutional right[]" to remain silent. He thus submits that
it should have been excluded by the circuit court. We disagree.
First, as noted above, a defendant waives his Fifth Amendment
rights when he gives notice of his intention to use his mental
health expert's evaluation as mitigating evidence. Second, the
record fully supports the circuit court's finding that "there
was a partial failure to cooperate" on Prieto's part during Dr.
Samenow's evaluation. Accordingly, we conclude that the circuit
court did not err in allowing Dr. Samenow to testify about
Prieto's "refusal to cooperate" during the evaluation, in
accordance with Code § 19.2-264.3:1(F)(2).
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
36
accused to testify." Hines v. Commonwealth, 217 Va. 905, 907,
234 S.E.2d 262, 263 (1977) (internal quotation marks and
citation omitted). Here, as the Commonwealth points out,
several witnesses, including mental health experts, were asked
during the resentencing proceeding whether Prieto had expressed
any remorse, and they said "no." We therefore conclude that, as
the circuit court found, the Commonwealth's comment on Prieto's
lack of remorse was not "a comment on his failure to testify,"
but rather a comment on the evidence that had been presented.
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 Code
§ 19.2-264.1. Quoting our decision in P. Lorillard Co. v. Clay,
127 Va. 734, 744, 104 S.E. 384, 387 (1920), he submits that "[a]
view should be granted when it would be 'of substantial aid to
the jury in reaching a correct verdict.' " He advances three
reasons why a view of Red Onion would have been a "substantial
aid" to the jury in reaching a correct verdict in his case.
First, it "would have enabled the jury to correctly decide
whether [he] would be a future danger to the prison society —
the inmates and correctional officers — at Red Onion, given its
conditions as a 'super max' facility." Second, "it would have
prevented jury speculation on [his future dangerousness], as
living within a super max facility is outside the common
37
experience of the typical juror." Third, it "would have enabled
the jury to assess the credibility of trial witnesses testifying
on the issue of [his] future dangerousness."
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 Code § 19.2-264.1, "[t]he jury in any criminal case
may . . . be taken to view the premises or place in question, or
any property, matter or thing relating to the case, when it
shall appear to the court that such view is necessary to a just
decision." " 'The question of the propriety of ordering a
view,' " we have said, " 'lies largely in the discretion of the
trial court which should only grant it when it is reasonably
certain that it will be of substantial aid to the jury in
reaching a correct verdict and whose decision will not be
reversed unless the record shows that a view was necessary to a
just decision.' " P. Lorillard Co., 127 Va. at 744, 104 S.E. at
387 (quoting Abernathy v. Emporia Mfg. Co., 122 Va. 406, 424, 95
S.E. 418, 423 (1918)).
We do not believe that a view of Red Onion was necessary to
a just decision on Prieto's future dangerousness. We have
38
consistently held that there is no constitutional limitation to
the circuit court's authority
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
(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 Code
§ 19.2-264.2 unconstitutional. Under that statute, an offense
is "outrageously or wantonly vile" if "it involved torture,
depravity of mind or an aggravated battery to the victim."
39
Prieto submits that torture, depravity of mind, and aggravated
battery are elements of the vileness aggravating factor. Thus,
he contends, under Richardson v. United States, 526 U.S. 813(1999), "a Virginia capital jury considering the vileness
aggravating factor must unanimously agree upon which elements of
vileness form the basis of its finding of vileness."
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
40
Richardson. Jackson v. Commonwealth, 266 Va. 423, 587 S.E.2d
532 (2003), cert. denied, 543 U.S. 842 (2004).
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
41
because defendants "are entitled to a jury determination of any
fact on which the legislature conditions an increase in their
maximum punishment." Id. at 589. In reaching this conclusion,
the Supreme Court said nothing about unanimity in state-court
verdicts, and for good reason: The Sixth Amendment "does not
require a unanimous jury verdict in state criminal trials."
McDonald v. City of Chicago, ___ U.S. ___, ___, 130 S. Ct. 3020,
3035 n.14 (2010); see also Apodaca v. Oregon, 406 U.S. 404, 406
(1972). Moreover, we have previously found that Virginia's
capital-sentencing scheme "do[es] not suffer from the same
issues that were addressed in Ring because the aggravating
factors are submitted for the jury to determine." Porter v.
Commonwealth, 276 Va. 203, 265, 661 S.E.2d 415, 447 (2008)
(citing Muhammad v. Commonwealth, 269 Va. 451, 491, 619 S.E.2d
16, 39 (2005), cert. denied, 547 U.S. 1136 (2006)), cert.
denied, ___ U.S. ___, 129 S. Ct. 1999 (2009).
Accordingly, we conclude that the circuit court did not err
in denying Prieto's motion to declare the vileness aggravating
factor in Code § 19.2-264.2 unconstitutional.
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
42
denied the motion, concluding (1) that "the request for grand
jury information ha[d] been waived because it was not raised
prior to trial," as required by Rule 3A:9(c), and (2) that no
good cause had been shown to grant relief from the waiver.
Under Rule 3A:9(b)(1), "[d]efenses and objections based on
defects in the institution of the prosecution or in the written
charge upon which the accused is to be tried . . . must be
raised by motion made within the time prescribed by paragraph
(c) of this Rule." Paragraph (c), in turn, provides that "[a]
motion referred to in subparagraph (b)(1) shall be filed or made
before a plea is entered and, in a circuit court, at least 7
days before the day fixed for trial." Rule 3A:9(c). Failure to
comply with these requirements constitutes a waiver. Rule
3A:9(b)(1). For good cause, however, relief from any waiver may
be granted under Rule 3A:9(d).
Prieto contends that the circuit court erred in finding
that he waived his request for grand jury information under Rule
3A:9(b)(1), because he filed his motion more than 7 days before
his resentencing proceeding. We disagree.
Rule 3A:9(c), as just noted, requires not only that a
motion challenging an indictment be filed 7 days before trial,
but also that it be filed "before a plea is entered." (Emphasis
added.) A resentencing proceeding is not a "trial." There was
no reversible error found in the guilt phase of Prieto's first
43
conviction, all convictions were affirmed, and only the two
sentences of death were reversed and remanded to the circuit
court for a new penalty proceeding on the capital murder
convictions. Prieto I, 278 Va. at 418, 682 S.E.2d at 938. But
even assuming, arguendo, that a resentencing proceeding is a
"trial" and that therefore Prieto complied with the first of
Rule 3A:9(c)'s requirements by filing his motion more than 7
days before that proceeding, there can be no doubt that he
failed to comply with the second because his motion was filed
years after he entered a plea.
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;
44
otherwise they will be considered as waived unless,
indeed, the proceeding be void ab initio.
Id. at 592, 13 S.E. at 74.
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 Fourteenth Amendment, the right to
object to it at any time cannot be waived. Although a defendant
has "a constitutional right to a fair and impartial grand jury
from which members of his race had not been intentionally
excluded," we explained, "that does not mean that there is no
limitation of time, mode or circumstance upon his right to
object to the grand jury which returned the indictment against
him." Id. at 820-21, 71 S.E. at 371.
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).
45
Because Prieto failed to raise his challenge to the
composition of the grand jury before he entered a plea, as Rule
3A:9(c) and our precedents require, we conclude that the circuit
court did not err in finding that his request for grand jury
information was waived.
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 Rule 3A:9(d). He does not say,
however, what that good cause was; rather, he submits that he
should have been excused from the waiver because "death is
different." While we acknowledge that death is the ultimate
punishment, that is not itself reason enough to grant him relief
from the waiver, for we have routinely found waiver in capital
cases. See, e.g., Schmitt v. Commonwealth, 262 Va. 127, 148,
547 S.E.2d 186, 201 (2001) (refusing to address the merits of a
number of the defendant's arguments because timely objections
were not made in the circuit court), cert. denied, 534 U.S. 1094(2002).
Since Prieto failed to show good cause why he should be
excused under Rule 3A:9(d) from the waiver of his right to
challenge the composition of the grand jury, we hold that the
circuit court did not err in denying his motion for grand jury
information.
46
M. Request for Petit Jury Information
To mount a Sixth Amendment fair-cross-section challenge to
Fairfax County's jury selection process, Prieto moved for petit
jury information, including master jury lists, for the 2008,
2009, and 2010 terms. The circuit court granted him access to
information for the 2010 term, but denied him access to
information for the 2008 and 2009 terms. He argues that the
circuit court erred in denying him access to information for the
2008 and 2009 terms because he was entitled to that information
"to ensure constitutional compliance of the jury selected for
his trial."
Under Code § 8.01-347, after a master jury list is created,
"the commissioners shall cause all the names thereon to be
fairly written, each on a separate paper or ballot . . . and
shall deposit the ballots with the list in a secure box," which
"shall be locked and safely kept . . . and opened only by the
direction of the judge." In Archer v. Mayes, 213 Va. 633, 640,
194 S.E.2d 707, 712 (1973), we said that there was nothing in
Code § 8-184 (§ 8.01-347's predecessor) that "deprives the judge
of the court [of] discretion, where good cause is shown, to
permit an examination of the jury list." We further explained:
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
47
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
48
venire will be selected "for the purpose of determining whether
the jury selection procedures required by law and by the
Constitution of the United States and the Constitution of
Virginia [are] complied with." Eccles v. Commonwealth, 212 Va.
679, 680, 187 S.E.2d 207, 207 (1972). But it contends that he
did not do so for the release of the jury lists for the 2008 and
2009 terms because "any alleged violation in the composition of
[his] jury could only occur in the process used to select the
master list for 2010, from which his sentencing jury would be
drawn."
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 Sixth Amendment right to be tried by an
impartial jury drawn from a fair cross section of the community.
The lists could have been used to show that any constitutionally
significant underrepresentation of a distinctive group on
Fairfax County's venires was due to systematic exclusion, rather
than chance. As discussed below, however, we find that Prieto
was not prejudiced by not having access to the lists because he
failed to establish that there was any constitutionally
significant underrepresentation of a distinctive group in the
venire from which his jury would be selected. Without such
underrepresentation, Prieto could not make a claim of systematic
49
exclusion. For this reason, we conclude that the circuit court
did not err in denying Prieto access to the lists.
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 Sixth Amendment
right to an impartial jury drawn from a fair cross section of
the community. We disagree.
"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-
50
Americans and Hispanics in the venire did not rise to the level
of unfair or unreasonable.
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
3
"Absolute disparity" is determined by subtracting the
percentage of a distinctive group in the jury pool from the
percentage of that group in the jury-eligible population.
Berghuis, 559 U.S. at ___, 130 S.Ct. at 1390.
4
"Comparative disparity" is determined by dividing the
absolute disparity of a distinctive group by the percentage of
that group in the jury-eligible population. Berghuis, 559 U.S.
at ___, 130 S.Ct. at 1390.
5
For purposes of our analysis, we accept Dr. Beveridge's
underrepresentation figures. We note, however, that there is
considerable doubt as to their accuracy. For instance, Dr.
Beveridge did not know whether the census data he used included
the towns of Herndon and Vienna, which are part of Fairfax
County. He also acknowledged that the census data he used did
include the city of Falls Church, which is not part of Fairfax
County.
51
today which measurement should be used in evaluating such a
claim in the Commonwealth because neither the absolute nor
comparative disparities in this case are constitutionally
significant.
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
52
jury selection procedures with higher comparative disparities
than those asserted in this case (22.05% and 31.51%). See,
e.g., Orange, 447 F.3d at 798 (ranging from 38.17% to 51.22%);
United States v. Weaver, 267 F.3d 231, 243 (3d Cir. 2001)
(ranging from 40.01% to 72.98%); United States v. Chanthadara,
230 F.3d 1237, 1257 (10th Cir. 2000) (ranging from 40.89% to
58.39%); Royal, 174 F.3d at 10 n.10 (60.9%).
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 Code § 17.1-313(C), we are required to conduct a
review to determine (1) "[w]hether the sentence of death was
imposed under the influence of passion, prejudice or any other
arbitrary factor," and (2) "[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant." This
review is undertaken to "'assure the fair and proper application
of the death penalty statutes in this Commonwealth and to
instill public confidence in the administration of justice.'"
Morva v. Commonwealth, 278 Va. 329, 354, 683 S.E.2d 553, 567
(2009) (quoting Akers v. Commonwealth, 260 Va. 358, 364, 535
53
S.E.2d 674, 677 (2000)), cert. denied, ___ U.S. ___, 131 S. Ct.
97 (2010).
1. Passion, Prejudice, or Any Other Arbitrary Factor
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
54
jurisdiction generally impose the supreme penalty for comparable
or similar crimes, considering both the crime and the
defendant." Lovitt, 260 Va. at 518, 537 S.E.2d at 880 (internal
quotation marks and citation omitted). This review "is not
designed to [e]nsure complete symmetry among all death penalty
cases." Porter v. Commonwealth, 276 Va. 203, 267, 661 S.E.2d
415, 448 (2008) (internal quotation marks and citation omitted),
cert. denied, ___ U.S. ___, 129 S. Ct. 1999 (2009). "Rather, the
goal of the review is to determine if a sentence of death is
aberrant." Id. (internal quotation marks and citation omitted).
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 (Code § 18.2-
31(5)), see, e.g., Hedrick v. Commonwealth, 257 Va. 328, 513
S.E.2d 634, cert. denied, 528 U.S. 952 (1999); Payne v.
Commonwealth, 257 Va. 216, 509 S.E.2d 293 (1999); Swisher v.
Commonwealth, 256 Va. 471, 506 S.E.2d 763 (1998), cert. denied,
528 U.S. 812 (1999); Barnabei v. Commonwealth, 252 Va. 161, 477
S.E.2d 270 (1996), cert. denied, 520 U.S. 1224 (1997), and (2)
for the willful, deliberate, and premeditated killing of more
than one person as part of the same act or transaction (Code
§ 18.2-31(7)). See, e.g., Juniper v. Commonwealth, 271 Va. 362,
55
626 S.E.2d 383, cert. denied, 549 U.S. 960 (2006); Winston v.
Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004), cert. denied,
546 U.S. 850 (2005); Hudson v. Commonwealth, 267 Va. 29, 590
S.E.2d 362 (2004) (guilty plea entered); Zirkle v. Commonwealth,
262 Va. 631, 553 S.E.2d 520 (2001) (guilty plea entered);
Bramblett v. Commonwealth, 257 Va. 263, 513 S.E.2d 400, cert.
denied, 528 U.S. 952 (1999); Goins v. Commonwealth, 251 Va. 442,
470 S.E.2d 114, cert. denied, 519 U.S. 887 (1996); Burket v.
Commonwealth, 248 Va. 596, 450 S.E.2d 124 (1994), cert. denied,
514 U.S. 1053 (1995); Stewart v. Commonwealth, 245 Va. 222, 427
S.E.2d 394, cert. denied, 510 U.S. 848 (1993). We have also
reviewed those cases in which similar convictions occurred but a
sentence of life imprisonment was imposed. Based on this
review, we find that Prieto's capital sentences were neither
excessive nor disproportionate to sentences imposed in capital
murder cases for comparable crimes.
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.
56