                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 2204-98-1               JUDGE ROSEMARIE ANNUNZIATA
                                              APRIL 19, 1999
JIMMY WILLIAMS


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Marc Jacobson, Judge

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on briefs), for appellant.

          B. Thomas Reed (Joseph C. Lindsey, on
          brief), for appellee.


     On January 7, 1998, Jimmy Williams ("the defendant") was

indicted for capital murder and two counts of using a firearm in

the commission of murder.   On April 24, 1998, the defendant

filed a motion to suppress a statement he gave to officers of

the Norfolk Police Department.    The statement inculpated Kelvin

Hudson, the defendant's brother and codefendant.   The trial

court granted the suppression motion, finding that the statement

was "constitutionally invalid."   The Commonwealth appeals this

decision, asserting the defendant voluntarily waived his Fifth




     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Amendment constitutional rights.     We agree and reverse the trial

court's decision to suppress the defendant’s statement.

                                I.

                        FACTUAL BACKGROUND

     On September 16, 1997, Demetrius Ray Wiley, William

Spencer, and Terry Chark were murdered in Norfolk.

Subsequently, juvenile petitions were issued against the

defendant for the murders.   Detective David Newman arrested the

defendant and brought him to the Police Operations Center

("POC") in Norfolk, where Newman and another detective attempted

to interview him about the murders.    After advising the

defendant of his Miranda rights, however, the defendant declined

to speak with the detectives, and the detectives ceased

questioning him.

     At some point after the defendant's preliminary hearing in

December 1997, while he was being held at the Norfolk City Jail,

the defendant told Jennell Jackson, his sister, that he wanted

to talk to the police about the murders. 1   The defendant also

asked his mother, Davelyn Ann Williams, to tell his lawyer,

Danny Shipley, that he wanted to speak with him about the

murders.   In response, Williams and Jackson went to Shipley's

office and informed him of the defendant's requests.    Shipley


     1
      Even before his arrest, the defendant told Jackson that
their brother, Kelvin Hudson, had killed Terry Chark, another
brother, and that he wanted to give this information to police.


                               - 2 -
informed them that he would arrange for an interview with police

so that the defendant could give a statement.   Because of his

concerns regarding the defendant's ability to communicate,

however, Shipley told Williams and Jackson that he wanted to be

present during the interview and told them to likewise be

present.

     On March 3, 1998, Williams and Jackson also contacted

Newman at his home and asked to speak with him at the POC.   When

Newman met with Williams and Jackson, they informed the officer

the defendant wanted to speak with him, summarizing what the

defendant would say.

     On March 4 or 5, 1998, Shipley spoke with Norman Thomas,

Deputy Commonwealth's Attorney, and scheduled a meeting between

the defendant and police at the POC for Monday, March 9, 1998.

During their conversation, Shipley informed Thomas that he

"thought it would be best for [the defendant's] mother [and him]

to be there" because of the defendant's "inability to

communicate very well."

     On Friday evening, March 6, 1998, Shipley realized that he

had a previous engagement that precluded him from attending the

March 9 meeting with police.   On the morning of March 9, Shipley

left a message at Thomas' office, informing Thomas that he could

not attend the meeting and asking that the meeting be

rescheduled.   Shipley and Thomas continued to exchange messages

for the remainder of the day, never successfully speaking to one

                               - 3 -
another in person.   At one point, Thomas left a message for

Shipley inquiring whether the police could conduct the interview

as scheduled if the defendant's family was present, since there

was no legal requirement that counsel be present.   Shipley

returned the message on Thomas' voice mail, stating that he

wanted the meeting to be rescheduled so that he could attend.

Shipley never indicated the defendant did not want to speak with

the police.

     After consulting with Thomas as to the legality of carrying

out their prearranged meeting with the defendant despite the

absence of counsel, the police contacted Williams and Jackson

and arranged for them to meet the defendant at the POC.     Newman

explained that Shipley would not be present at the interview,

but that the defendant could carry on without the presence of

counsel if he was willing to do so.    As previously arranged, the

police transported the defendant from the Norfolk City Jail to

the POC.   Williams and Jackson were present when the defendant

arrived at 5:30 p.m.   Newman and another detective began

speaking with the defendant, Williams, and Jackson at

approximately 5:50 p.m. regarding whether to go forward with the

interview without Shipley.   Williams and Jackson remained with

the defendant throughout his meeting with the detectives.

     At the defendant's suppression hearing, three witnesses

testified the defendant wanted to speak with the police on March

9, 1998 notwithstanding Shipley's absence.   Jackson testified:

                               - 4 -
          Q. Did you learn that Jimmy's attorney
          could not [meet at the POC that day]?
          A. When we got there, he said he couldn't
          go. We talked to his secretary earlier that
          day and he wasn't coming there.
          Q. And did you understand that he wanted to
          postpone that meeting?
          A. Yes.
          Q. During that period of time, did Jimmy
          still want to talk to the police?
          A. Yes.
          Q. Did Jimmy want to talk to the police
          even though his attorney couldn't be there
          and wanted to postpone.
          A. From my understanding, yes.
          Q. And is that from talking to Jimmy?
          A. Yes.

Williams testified in pertinent part:

          Q. So someone told you that [Shipley]
          didn't have to be there?
          A. Yes.
          Q. Were you ever told that [Shipley] wanted
          to be there and wanted to reschedule?
          A. Yes.
          Q. Who told you that?
          A. [Shipley's] secretary and also the [sic]
          Detective Newman said that [Shipley] wanted
          to reschedule it.

                 *    *    *    *       *   *   *

          Q. At any time you were with [the
          defendant] that night, did you get the
          impression he did not want to talk to the
          police or did you get the impression that he
          wanted to talk to the police?
          A. I got the impression that he wanted to
          because he thought it was the right thing.
          That's the impression I got.

Officer Newman also testified the defendant wished to speak with

the police:

          Q. Did [Williams and Jackson] give you
          affirmative statements that [the defendant]
          wanted to talk to you?

                               - 5 -
          A. Yes, they did.
          Q. Did you receive some word about defense
          counsel, Mr. Shipley, not being available?
          A. Yes. Dee Williams, the mother of Jimmy
          Williams advised me that she was to
          understand that the meeting was to be
          continued and that she was frustrated; that
          she said that she waited too long and that
          Jimmy was getting upset, wanting to talk to
          us regardless of whether he was present or
          not; if we could go ahead and still have the
          meeting and go ahead that day, which is what
          we went ahead and arranged.
          Q. Did you have discussions with [Williams
          and Jackson] about whether to go forward or
          whether to postpone so that defense counsel
          could be there?
          A. Yes, I did [and they wished to go
          forward].

                 *    *    *    *      *   *   *

          Q. What about with [the defendant]?
          A. He wished the same. When he was brought
          in and I initially set him down and I
          advised him and made him aware that he was
          represented by Mr. Shipley, that he was not
          required to make any statement to me or talk
          to me; that if he wanted to, it would have
          to be because he, in fact, wanted to and
          that he had the option to have Mr. Shipley
          present or not present and that was up to
          him, and it was his desire at that time that
          he expressed he wanted to talk to me without
          Mr. Shipley present.

     After ascertaining the defendant wanted to make a

statement, Newman read the defendant his Miranda rights using

the Norfolk Police Department Legal Rights Advice Form.    Newman

invited both the defendant and his mother to ask him any

questions regarding these rights as he read them.   After reading

that the defendant had the right to have counsel present "during

all questioning," Newman directly asked the defendant if he

                               - 6 -
wanted to continue with the interview.    The defendant replied

affirmatively.   The defendant also read the form himself and

indicated that he understood his rights by writing "yes"

together with his initials next to each sentence outlining his

rights.   The defendant signed the form, while Officer Newman and

Williams signed as witnesses.    Jackson testified that this

process took a "long time," during which no one pressured the

defendant to act more quickly.

     After completing the Legal Rights Advice Form, Newman and

the defendant discussed the present offenses without recording

the conversation.   Newman subsequently took a recorded statement

from the defendant, which the Commonwealth proffered as Exhibit

Number 1 at the suppression hearing.     At the beginning of this

statement, the defendant acknowledged that he understood his

rights as set forth in the Legal Rights Advice Form and,

particularly, that he understood he had the right to have

Shipley present during the interview.    Nonetheless, the

defendant stated that he desired to speak with the police

notwithstanding Shipley's absence and proceeded to tell police

about the circumstances surrounding the murders of Wiley,

Spencer, and Chark, answering all questions asked by the

officers as he did so. 2


     2
      Specifically, the defendant described an incident in which
he, Terry Chark, Kelvin Hudson, and two companions became
involved in a gunfight with several other individuals, with whom
Hudson had an earlier argument. According to the defendant,

                                 - 7 -
        After completing the statement, Newman reviewed it with the

defendant and his mother, allowing them to read one page at a

time.       The defendant indicated that he could read and write;

Williams agreed, though cautioning that the defendant was "a

little slow" and required extra time to go through the

statement. 3     Whenever Newman saw a discrepancy in the statement,

he would point it out to the defendant and have the defendant

clarify his meaning.      Newman then made any necessary correction

and initialed it.      After reviewing a page of his statement, the

defendant initialed the top and bottom of each page.      Newman

testified that the defendant's review of his statement was "a

time-consuming process," in which they "took each page one by

one and made sure everything was correct."      Newman further

testified the defendant's answers to the recorded statement were

substantially similar to those given during their earlier



Hudson forced him to go to the fight, striking him in the head
several times when he protested. Each individual, including the
defendant, possessed a gun during the altercation. The defendant
stated that Hudson, his codefendant, shot Chark during the
gunfight. After the shooting, Hudson told the defendant to "keep
[his] mouth shut." The defendant stated that, although he fired
his gun twice into the ground during the fight, he did not shoot
anyone.
        3
      At that time, the defendant was sixteen years old. The
defendant regularly attended Norview High School where he took
special education classes. The defendant did not comprehend as
quickly as "normal children" and required additional explanation,
time, and patience to achieve understanding. The defendant could
write, read "a little bit," and do basic mathematics, such as
adding and subtracting. The defendant received nearly $500 a
month from SSI, which one of his sisters helped him save. When
shopping, the defendant was capable of choosing what he wanted
for himself. The defendant also knew how to drive a car.


                                   - 8 -
unrecorded discussion.   At one point, the police interrupted the

interview so that Williams could leave and get the defendant

something to eat.   During this time, the defendant was allowed

to "visit" with Jackson and "collect his thoughts."   The

defendant did not ask the police any questions during the

interview.

     In determining that the defendant's statement was

"constitutionally invalid" and granting the motion to suppress,

the court cited as grounds the following:   1) admissions by

juveniles require special precautions to ensure they were not

involuntary; 2) the defendant's diminished mental capabilities

and inexperience with the criminal justice system; 3) the

defendant, his mother, or his sister had never been advised that

Shipley specifically requested and wished to be present when the

defendant spoke to the police; and 4) Shipley "specifically and

affirmatively indicated that he desired, intended and expected

to be present at and for any statement given by Williams to the

police and was under the impression that such would be the

case."

                                II.

                         LEGAL PRINCIPLES

     "'In order to be able to use statements obtained during

custodial interrogation of the accused, the State must warn the

accused prior to such questioning of his right to remain silent

and of his right to have counsel, retained or appointed, present

                               - 9 -
during interrogation.'"    Grogg v. Commonwealth, 6 Va. App. 598,

611, 371 S.E.2d 549, 555 (1988) (quoting Fare v. Michael C., 442

U.S. 707, 717 (1979)).    An accused may waive his constitutional

right to remain silent and to the presence of an attorney

provided the waiver is made voluntarily, knowingly, and

intelligently.    See Skinner v. Commonwealth, 212 Va. 260, 263,

183 S.E.2d 725, 728 (1971); Roberts v. Commonwealth, 18 Va. App.

554, 557, 445 S.E.2d 709, 711 (1994).   An accused may waive the

presence of his or her attorney after one has been appointed or

retained, even though the attorney has instructed the accused to

remain silent.    See Lamb v. Commonwealth, 217 Va. 307, 310, 227

S.E.2d 737, 740 (1976); Skinner, 212 Va. at 263, 183 S.E.2d at

728.

       In determining whether a waiver was voluntary, knowing, and

intelligent, the court must examine the totality of

circumstances surrounding the interrogation.    See Fare, 442 U.S.

at 717.   The court's task is to determine whether the accused's

statement "'is the product of an essentially free and

unconstrained choice . . . or whether the maker's will has been

overborne and his capacity for self-determination critically

impaired.'"    Roberts, 18 Va. App. at 557, 445 S.E.2d at 711

(quoting Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d

371, 381, cert. denied, 469 U.S. 873 (1984)).    When a juvenile

is the subject of interrogation, "'the greatest care must be

taken to assure that the admission was voluntary, in the sense

                               - 10 -
not only that it was not coerced or suggested, but also that it

was not the product of ignorance of rights or of adolescent

fantasy, fright or despair.'"     Grogg, 6 Va. App. at 612-13, 371

S.E.2d at 556 (quoting In re Gault, 387 U.S. 1, 55 (1967)).

Relevant considerations include an "'evaluation of the

juvenile's age, experience, education, background and

intelligence, and into whether he has the capacity to understand

the warnings given to him, the nature of his Fifth Amendment

rights and the consequences of waiving those rights.'"     Roberts,

18 Va. App. at 557, 445 S.E.2d at 711 (quoting Fare, 442 U.S. at

725).   The presence of a parent, guardian, independent

interested adult, or counsel is a factor that weighs in favor of

finding that a juvenile's waiver of constitutional rights was

knowing and intelligent.     See Grogg, 6 Va. App. at 613, 371

S.E.2d at 557.   The manner in which interrogating officials

conducted the interview, including the presence of coercion,

deceit, or trickery, is also a relevant consideration.     See

Akers v. Commonwealth, 216 Va. 40, 46, 216 S.E.2d 28, 32 (1975).

The burden of proving a waiver of constitutional rights rests

with the government.     See Lamb, 217 Va. at 310-11, 227 S.E.2d at

740.    The trial court's finding that a defendant has executed a

valid waiver will not be reversed if supported by substantial

and credible evidence.     See Terrell v. Commonwealth, 12 Va. App.

285, 290, 403 S.E.2d 387, 389 (1991); Goodwin v. Commonwealth, 3

Va. App. 249, 253, 257, 349 S.E.2d 161, 163, 165-66 (1986).

                                - 11 -
     Examining the totality of circumstances in this case, we do

not find substantial and credible evidence to support the

conclusion that the defendant's statement was taken in violation

of the Fifth Amendment.   Rather, the evidence supports the

obverse, showing clearly that the defendant understood his Fifth

Amendment rights and waived his rights voluntarily, knowingly,

and intelligently.

     Defendant was not unfamiliar with his rights under the

Fifth Amendment when he executed the waiver of those rights and

gave his statement to the police.   When defendant was first

arrested, he was advised of his rights before police attempted

to interrogate him.   At that time, the defendant did not invoke

his right to counsel but he exercised his right to remain silent

and declined to speak with the police.     See Roberts, 18 Va. App.

at 558, 445 S.E.2d at 711 (finding that the defendant's prior

exercise of his right to remain silent indicated that he was

familiar with his Fifth Amendment rights).

      Several months later, after his preliminary hearing, the

defendant initiated contact with the police by telling his

mother and sister that he wished to speak with the police about

the deaths of Wiley, Spencer, and Chark.    In compliance with the

defendant's request, Shipley, his attorney, arranged for a

meeting with police at the POC.

     Although Shipley later discovered that he could not attend

the meeting and attempted to have it rescheduled, Shipley's

                              - 12 -
insistence that the defendant not speak to police outside his

presence did not impair the defendant's ability to validly waive

his Fifth Amendment rights.   See Lamb, 217 Va. at 310, 227

S.E.2d at 740 ("[I]t is to be remembered [the right to counsel

during interrogation] is the defendant's right and not the right

of defendant's counsel, for defendant dwells here on the

contention [that his attorney] never explicitly consented to

defendant's waiver of his right to counsel.").   Because only the

defendant could have exercised his Fifth Amendment rights, the

trial court's finding that Shipley "specifically and

affirmatively indicated that he desired, intended and expected

to be present" during the defendant's interrogation is without

legal import and offers no support for the court's conclusion

that the defendant's statement was taken in violation of the

Fifth Amendment.

     Furthermore, the defendant's knowledge of Shipley's desire

to be present during any interrogation is irrelevant to the

validity of his waiver of Fifth Amendment rights.   Even when

police intentionally withhold from a defendant information

regarding counsel's availability or counsel's attempt to

communicate with the defendant, "such conduct is only relevant

to the constitutional validity of a waiver [of Fifth Amendment

rights] if it deprives [the] defendant of knowledge essential"

to an understanding of the nature of his or her rights and the

consequences of abandoning them.   Moran v. Burbine, 475 U.S.

                              - 13 -
412, 423-24 (1986).   In this case, the evidence demonstrates

that the defendant chose to speak to the police with full

awareness of his rights and of the consequences of waiver.

Thus, Shipley's request to reschedule the interrogation had no

bearing on the defendant's "capacity to comprehend and knowingly

relinquish" his constitutional rights.   Id. at 422.

     Moreover, even were the defendant's knowledge of Shipley's

desire to reschedule the interrogation relevant to the issue,

the trial court's finding that the defendant and his relatives

were not told of Shipley's desire is plainly wrong.     See Naulty

v. Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542

(1986).   According to both Jackson and Williams, when they met

with Shipley at his office to inform him of the defendant's

request to speak with the police, Shipley stated that he would

arrange for an interview and, because of his concerns regarding

the defendant's inability to communicate, wanted to be present

during the interview.   On the day of the interview, Williams and

Jackson were again reminded that Shipley did not want the

defendant to speak to police outside of his presence.    Williams

testified that she spoke with Shipley's secretary and Detective

Newman, who both informed her that Shipley could not attend the

interview and desired to have it rescheduled.   Jackson testified

that, on the day of the interview, she knew Shipley wanted to

reschedule and, notwithstanding Shipley's desire to postpone the

interview, the defendant wanted to speak with police.    Thus, it

                              - 14 -
is evident from the record that the defendant waived his right

to have his attorney present during the police interview after

he was made aware that his attorney could not be present and

wished to have the interview postponed.

     The remaining circumstances surrounding the defendant's

statement also fail to support the conclusion that the

defendant's will had been overborne and his capacity for

self-determination critically impaired when he gave his

statement to police.   Indeed, although the trial court correctly

noted that special precautions should be taken in order to

ensure a juvenile executes a voluntary, knowing, and intelligent

waiver of constitutional rights, particularly in light of the

testimony in this case regarding the defendant's mental

abilities, the evidence shows that the police, in fact, took

extra precautions.

     Before commencing the March 9 interview, police contacted

the defendant's mother and sister, arranging for them to meet

the defendant at the POC.   These family members arrived at the

POC before the defendant and remained with the defendant

throughout the interview.   Both Williams and Jackson were

informed that Shipley wanted to reschedule the interview and

discussed with the defendant whether he should go forward

notwithstanding the absence of counsel.   Williams and Jackson

were present when the police informed the defendant of his

rights, when the defendant indicated he understood those rights,

                              - 15 -
and when the defendant expressed his desire to speak with police

notwithstanding his right not to do so.   Both Williams and

Jackson testified that the defendant desired to speak with

police on the occasion in question.

     As to the conditions of the interview, there is no evidence

that the police obtained the defendant's waiver by coercion,

deceit, or trickery.   On the contrary, the defendant was not

threatened in any way during the interview and was allowed to

review the Legal Rights Advice Form without pressure.   Moreover,

the police interrupted the interview so that Williams could

obtain something for the defendant to eat, during which time the

defendant was allowed to visit with Jackson and collect his

thoughts.

     The evidence likewise fails to establish that the defendant

was mentally incapable of understanding and intelligently

deciding to waive his constitutional rights.   While the evidence

shows the defendant did not have the capacity to understand his

options or review written documents quickly, the defendant was

afforded ample time and assistance to assure his comprehension.

Furthermore, the defendant indicated that he understood his

rights both orally, after Detective Newman read the Legal Rights

Advice Form, and in writing, by filling out the form.   The

defendant reviewed the form with the assistance of Detective

Newman and his mother, taking a "long time" to read his rights

and place his initials next to each written articulation of the

                              - 16 -
rights.   At the beginning of the defendant's recorded statement,

the defendant again indicated that he understood his rights,

particularly the right to have his attorney present during the

interview.   The defendant reiterated that he wished to speak

with police notwithstanding his attorney's absence.   After

completing the recorded statement, the defendant reviewed the

document, one page at a time with the assistance of his mother,

initialing the top and bottom of every page.   Whenever Newman

noticed a discrepancy, the defendant was asked to clarify his

meaning, and did so.

     In short, the record fails to show that the defendant did

not make a voluntary, knowing, and intelligent waiver of his

Fifth Amendment rights before making the statement at issue and

fails to reflect substantial and credible evidence in support of

the trial court's decision.

     For the foregoing reasons, we reverse the court's

suppression of the defendant's statement and remand for further

proceedings consistent with this decision.

                                         Reversed and remanded.




                              - 17 -
