Angel v. Commonwealth of Va..

• Decision Date: 13 January 2011
• Docket Number: Record No. 092341.
• Citation: 704 S.E.2d 386,281 Va. 248
• Parties: Rubio Argelio ANGELv.COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

281 Va. 248

704 S.E.2d 386

Rubio Argelio ANGEL

v.COMMONWEALTH of Virginia.

Record No. 092341.

Supreme Court of Virginia.

Jan. 13, 2011.

Helen Randolph, Assistant Public Defender II, for appellant.Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief) for appellee.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 His convictions were affirmed by the Court of Appeals in an unpublished memorandum opinion.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, 2009 WL 743046 (Mar. 24, 2009). For the reasons stated below, we will affirm the judgment of the Court of Appeals.

FACTS

The facts relating to the attacks at issue are as follows. Facts relevant only to specific assignments of error will be addressed in the discussion of those assignments of error.

On Sunday, July 9, 2006, at approximately 6:30 p.m., V.L. was attacked from behind while walking on a bike path in western Arlington County. V.L. testified that her assailant was a male of average build with dark hair who appeared to be Hispanic. The man knocked V.L. to the ground and continued to “punch [her] in the head and kick [her] all over.” After several blows to her head, V.L. lost consciousness. The man then dragged V.L. away from the bike path and into the woods. V.L. testified that the next thing she remembered was being unable to open her eyes because they were swollen shut but that she heard a motorbike, and then voices of the people who found her and called for an ambulance.

Adam Radicic and Christina Bishop were walking on the bike path at the time of the attack on V.L. Radicic testified that he and Bishop saw a small, green motorbike “idling” on the right side of the path, which was bordered by a wooded area. Radicic recognized the green motorbike as one he and Bishop had seen a young man pushing across a creek just a few minutes earlier. Radicic testified that he and Bishop continued on their walk past the motorbike and then heard “moans coming from the woods” and “all of a sudden, this guy jets out of the woods, running within an arm's distance of me and does a 90–degree turn” to run back in the direction of the motorbike. Radicic testified that the man was approximately 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.

DISCUSSION

In this appeal, Angel raises five assignments of error relating to the denial of his motion to suppress his statements to police, failure to comply with parental notification requirements, the joinder of trials for two separate offenses and admission of certain evidence of other crimes, the denial of a DNA expert, and the denial of his motion for mistrial. In another assignment of error, Angel also asserts, relying on the recent ruling in Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), that his three consecutive life sentences for nonhomicide crimes, without parole, should be vacated because it is cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. We consider these issues in order.

I. Motion to Suppress Statements to Police

In his first assignment of error, Angel argues that the Court of Appeals erred in affirming the trial court's denial of his motion to suppress his custodial interrogation because it violated his...