Angel v. Commonwealth, Record No. 2044-07-4 (Va. App. 3/24/2009)

• Court: Virginia Court of Appeals
• Writing for the Court: Larry G. Elder
• Decision Date: 24 March 2009
• Docket Number: Record No. 2044-07-4
• Citation: Angel v. Commonwealth, Record No. 2044-07-4 (Va. App. 3/24/2009), Record No. 2044-07-4 (Va. App. Mar 24, 2009)
• Parties: RUBIO ARGELIO ANGEL v. COMMONWEALTH OF VIRGINIA

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RUBIO ARGELIO ANGEL v. COMMONWEALTH OF VIRGINIA

Record No. 2044-07-4

Court of Appeals of Virginia, Alexandria.

March 24, 2009.

Appeal from the Circuit Court of Arlington County, Benjamin N. A. Kendrick, Judge.

Douglas Wham, Deputy Public Defender (Office of the Public Defender, on briefs), for appellant.

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Chief Judge Felton, Judges Elder and McClanahan

MEMORANDUM OPINION^*

JUDGE LARRY G. ELDER

Rubio Argelio Angel (appellant) appeals from his jury trial convictions for malicious wounding, abduction with intent to defile, two counts of object sexual penetration, and misdemeanor sexual battery, all arising out of attacks on two different women on two different dates. On appeal, he contends the court erroneously denied his pretrial motion to suppress his statements to police and dismissed his appeal of the district court's decision to certify him for trial as an adult. He also contends the trial court erroneously denied his motions for appointment of a DNA expert, for separate trials, for a continuance, and for a mistrial. We hold the trial court did not err in denying the motion to suppress and dismissing the appeal of the juvenile court's certification determination. As to the remaining assignments of error, we hold any error was harmless. Thus, we affirm appellant's convictions.

I.

A.

MOTION TO SUPPRESS STATEMENTS TO OFFICERS

Federal constitutional law

require[s] that a suspect be informed of his constitutional rights to the assistance of counsel and against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, [1626,] 16 L. Ed. 2d 694[, 722] (1966). These rights can be waived by the suspect if the waiver is made knowingly and intelligently. Id. at 475, 86 S. Ct. [at 1628, 16 L. Ed. 2d at 724]. The Commonwealth bears the burden of showing a knowing and intelligent waiver. Id. 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). In determining whether an individual has voluntarily, knowingly, and intelligently waived his Miranda rights, a court must conclude

the relinquishment of the right[s] [was] voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. . . . [T]he waiver must [also] have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986). Where a juvenile is involved, this inquiry "`includes evaluation of the juvenile's age, experience, education, background, and intelligence [in order to determine] whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.'" Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709, 711 (1994) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572, 61 L. Ed. 2d 197, 212 (1979)); see also Potts v. Commonwealth, 35 Va. App. 485, 495-96, 546 S.E.2d 229, 234, aff'd on reh'g en banc, 37 Va. App. 64, 553 S.E.2d 560 (2001). "`[T]he presence or absence of a parent, guardian, independent interested adult, or counsel is . . . [but one] factor to be considered in the totality of the circumstances . . . .'" Rodriguez v. Commonwealth, 40 Va. App. 144, 158, 578 S.E.2d 78, 84 (2003) (quoting Grogg v. Commonwealth, 6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1988)) (upholding waiver by fourteen-year-old suspect).

Here, appellant was seventeen-and-a-half years old when advised of his Miranda rights. He had been in the United States without a parent for five months, during which time he obtained false identification and full time employment. He reported he had completed the 9th grade in El Salvador and that he was capable of reading and writing in Spanish. The detectives' entire interview with him, including the advisement and waiver of rights, was conducted in Spanish and was taped and transcribed. The detectives started their encounter with appellant by inquiring whether he wanted something to drink and when he had last eaten, and they spoke with appellant for several minutes to obtain background information about him and his family. At no time during the encounter did they threaten appellant or raise their voices to him. Detective Ortiz observed that appellant's "Spanish was fairly good" and that he had "a good background in terms of his verbal expressions, how he spoke." The letter of apology appellant later wrote to one of the victims provided further evidence of his literacy.

Detective Ignacio used dual means to advise appellant of his rights. Ignacio showed appellant a written waiver of rights form and read the rights to him from the form. He asked appellant whether he understood each right as Ignacio read it, and he obtained appellant's positive verbal and written response regarding whether he understood each right. He also asked appellant to read aloud the portion of the form stating, "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." Ignacio asked appellant whether he understood what he had read aloud, to which appellant responded, "Yes," and Ignacio asked appellant whether he had any questions about the form, to which appellant responded, "No." Appellant then signed the form directly beneath the paragraph he had read aloud. At no time did appellant ask to contact a parent, a lawyer, or any other adult. We hold these facts support the trial court's finding that the waiver of rights was voluntary, knowing, and intelligent.

Appellant complains that the detectives used an advisement of rights form for adults rather than the version of the form ordinarily used when interviewing a juvenile. However, appellant failed to elicit from the detectives any information about how the juvenile and adult forms differed. Further, as Detective Ortiz testified, the rights themselves were the same, and the evidence established appellant was less than six months from his eighteenth birthday.

Appellant also complains that the detectives "never expressly asked [him]" whether he wished to waive any of his Miranda rights and that he never "expressly indicate[d] a desire to do so." We disagree. Although "mere silence is not enough" to meet the Commonwealth's burden of proving a knowing, voluntary, and intelligent waiver of one's Miranda rights, appellant acknowledges that "in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286, 292 (1979). Here, appellant indicated verbally that he understood each of the rights as it was read to him in his native language of Spanish. He had the opportunity to see each right in print on an advisement of rights form that was entirely in his native language of Spanish, and he wrote an affirmative Spanish response next to each right on the form, again indicating his understanding of it. At Detective Ignacio's request, appellant then read aloud a statement on the form, printed in appellant's native language of Spanish, just like the rest of the form, indicating he understood his rights and was "willing to testify and answer questions." Appellant expressly indicated his willingness to speak to the detectives by signing the form, even if he did so using his alias of Carlos Zepeda. The record also contains no evidence of duress or coercion on the part of the police.

Detective Ignacio's statement to appellant that "your signature here does not mean that you are guilty of anything, it just means that you understand this form" does not compel a different result. Appellant specifically said he understood his rights as listed on the form and understood the language he read aloud before he signed the form, and Detective Ignacio's statement did not negate the language in the form.

Thus, we conclude the evidence supports the trial court's finding that the Commonwealth proved by a preponderance of the evidence that appellant's waiver of rights was knowing, voluntary, and intelligent.

B. DUE PROCESS CHALLENGE TO INDICTMENTS BASED ON ALLEGED LACK OF COMPLIANCE WITH PARENTAL NOTIFICATION PROVISIONS

Appellant contends the juvenile and domestic relations district court's act of certifying all offenses against him for trial in the circuit court pursuant to Code § 16.1-269.1(B) was error because the district court failed to comply with the mandatory parental notification provisions of Code § 16.1-263. Appellant concedes that, pursuant to Code § 16.1-269.1(E), as interpreted in Shackleford v. Commonwealth, 262 Va. 196, 205-06, 547 S.E.2d 899, 904-05 (2001), the issuance of indictments for the charged offenses cured any failure to comply with Code § 16.1-269.1(E)'s parental notification provisions. He contends, however, that neither Shackleford nor Moore v. Commonwealth, 259 Va. 405, 527 S.E.2d 415 (2000), which also considered the statutory notice issue, addressed whether failure to comply with the statutory notice provisions constituted a denial of due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.¹

We conclude appellant's argument lacks merit. Appellant has cited no controlling legal authority providing that a juvenile has a due process right to have his parent or guardian notified of the pendency of certification proceedings in juvenile court. Here, as in Rodriguez, 40 Va. App. 144, 578 S.E.2d 78, "[t]he cases [appellant] cites provide, at most, that juvenile proceedings, including transfer proceedings, ...