Prieto v. Commonwealth

283 Va. 149

721 S.E.2d 484

Alfredo Rolando PRIETO

v.COMMONWEALTH of Virginia.

Record No. 110632.

Supreme Court of Virginia.

Jan. 13, 2012.

Michael A. Siem (Peter D. Greenspun; Jonathan Shapiro, Fairfax; Erin M. Hickey; Matthew Engle; Greenspun, Shapiro, Davis & Leary, Fairfax; Fish & Richardson, on briefs), for appellant.

Matthew P. Dullaghan, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Jerry P. Slonaker, Senior Assistant Attorney General, on brief), for appellee.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, McCLANAHAN, and POWELL, JJ., and LACY, S.J.

OPINION BY Justice LEROY F. MILLETTE, JR.

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.

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 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 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.

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, 180 L.Ed.2d 827 (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 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, 128 S.Ct. 1228, 170 L.Ed.2d 78 (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.

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.

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...