                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Senior Judge Hodges
Argued by teleconference


WILLIAM J. CUOZZO, S/K/A
 WILLIAM JAY CUOZZO
                                        MEMORANDUM OPINION * BY
v.   Record No. 1843-98-2                JUDGE ROBERT P. FRANK
                                            AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   John F. Daffron, Jr., Judge

          Thomas P. Collins (Eck, Collins & Marstiller,
          on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     William J. Cuozzo (appellant) appeals two convictions for

taking indecent liberties with children pursuant to Code

§ 18.2-370 and three misdemeanor convictions for making obscene

or threatening phone calls after a bench trial.   On appeal,

appellant contends the trial court erred in:    1) denying his

motion to suppress, 2) finding the evidence sufficient under

Code § 18.2-370 to convict appellant on the Kida charge, and 3)

failing to exclude witnesses and permitting evidence of

unadjudicated criminal conduct at sentencing.   We reverse and

remand appellant's convictions.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                           I.   BACKGROUND

     During September and October of 1996, appellant allegedly

made phone calls to five children between seven and eleven years

of age.   He allegedly asked the children to perform various

sexual acts and, on some occasions, threatened harm to the

children or their parents if they did not comply with his

requests.

     On October 28, 1996, appellant was incarcerated in the

Hanover County Jail on other charges.    Detective Galen Hartless

of the Chesterfield County Police Department advised appellant

of his Miranda rights and interviewed appellant in the jail as

part of the investigation of the phone calls.

     On November 13, 1996, Detective Hartless again interviewed

appellant in the Hanover County Jail.    The detective was

accompanied by Investigator Schwartz of the Hanover County

Sheriff's Department.   Detective Hartless advised appellant of

his Miranda rights, and appellant signed a Miranda Right Form

acknowledging that he understood his rights.    According to the

transcript of the taped interview, the following exchange

occurred at the beginning of the interview:

            HARTLESS: You're incarcerated, of course
            you know that. I know you know your rights,
            but I'm gonna read 'em to you again. It's
            eleven-thirteen-ninety-six,   approximately
            ten-forty-five p.m. I'm Detective G.B.
            Hartless, Investigator Bob Schwartz, Hanover
            County Sheriff's Department and also present
            is Mister William Jay Cuozzo. Mister
            Cuozzo, you have the right to remain silent

                                - 2 -
and make no statement to me and your silence
will be guarded by the police. Any
statement you make without a lawyer can be
used against you. You have the right to the
presence of a lawyer durin' this or any
future interview the police might have with
you. The lawyer be [sic] one of your
choosin' which you hire or if you do not
have money to hire a lawyer, the court will
appoint one for you. Do you understand your
rights? Can you initial (inaudible)
formality. Just want to make sure you're
reminded of it. Initial that for me.

HARTLESS: Let me explain some things to you
(bell ringing) (inaudible). I just want you
to listen, ok, then maybe we can talk (bell
ringing) (inaudible) ringing'll go off.
Now, you know what I'm investigatin' as we
talked before if you remember, ok. Now, in
this investigation, I've found out a lot of
things about you Mister Cuozzo, and some of
the things are positive. Some of the things
are negative. Ok? The people at Bensley
Athletic Association think very highly of
you and I think Bensley is . . . was a place
that needed some input and needed some
organization and I think you did that. But
there are some other problems we need to
deal with. Ok? Um, lookin' at your
background, you were very candid with Mister
Sch . . . with Bob here when he interviewed
you and you said you needed help and
supposedly . . . and I understand the thing
with money, I don't know if was [sic] money
causin' problems for sure and it's court
ordered and maybe, you know, the state ought
to be payin' for it to make you a productive
member of society.

SCHWARTZ:   (inaudible).

HARTLESS: But that didn't happen and we're
here now, and I'm tellin' you when I leave
here, I'm goin' to the Commonwealth Attorney
in Chesterfield. Ok?

[APPELLANT]:   I want to talk to my attorney
first.


                     - 3 -
            HARTLESS: Well, let me finish. Alright.      I
            want you to know where you stand, and you
            can do that. That's entirely up to you.

            [APPELLANT]: I just want to make a call to
            him first before (inaudible).

            HARTLESS: Well, I don't have any . . . I'm
            not arrestin' you now. Ok? I don't have
            any indictments, don't have any arrest
            warrants.

     The exchange continued, and then, the officers allowed

appellant to telephone his attorney.     Immediately prior to

calling his attorney, appellant said, "I just got to ask him

somethin'."   Appellant called the attorney's office, but the

attorney was unavailable.    Then, the following exchange

occurred:

            HARTLESS: Did they say when your attorney
            would be back?

            [APPELLANT]:   Nah, they thought he was in
            court.

            HARTLESS: Ok we can continue to talk, or
            you know, remember you said you wanted to
            talk to your attorney.

            [APPELLANT]: Well, I do 'cause I asked him
            about . . . ask Randy (sounds as if
            [appellant is] crying) again.

            SCHWARTZ:   Who is Randy?

     The interview continued, and appellant made incriminating

statements about the telephone calls to the children.        He

admitted dialing the numbers for two of the calls but denied

talking to the children.    Detective Hartless then raised the

issue of counsel:


                                 - 4 -
             HARTLESS: You want to try callin' your
             attorney again and ask him that question?

             [APPELLANT]:   No.    I was gonna ask him about
             Randy.

             HARTLESS: Ok. You want to continue talking
             without your attorney.

             [APPELLANT]:   (Implication yes).

     Detective Hartless testified at trial that appellant

implied his willingness to continue without an attorney by

shaking his head up and down.

     On November 22, 1996, appellant contacted Detective

Hartless and indicated that he wanted to speak with the

detective.    By this date, appellant had been served with an

indictment of the charges against him relating to the telephone

calls.   The detective opened a third interview:

             HARTLESS: Ah, November Twenty Second,
             Nineteen Ninety Six and it's Ten Fifteen
             P.M., and you wanted me to come back and
             speak to you, is that right?

             [APPELLANT]:   Yes.

             HARTLESS: Okay, do I need to read you your
             rights again? Do you know 'em?

             [APPELLANT]:   Naw.

             HARTLESS: Since we've done been through two
             times before, okay, you get your indictment
             served on you yet, from Chesterfield?

     At trial, appellant moved to suppress the statements

obtained during the November 13, 1996 and November 22, 1996

interviews.    Appellant argued that he invoked his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), by stating during the

                                    - 5 -
November 13 interview, "I want to talk to my lawyer."      Appellant

argued that the statements were made without access to counsel

and were not voluntary.    The trial judge denied the motion,

finding appellant effectively waived his right to counsel during

the interview.

                            II.   ANALYSIS

     Appellant contends the trial judge erred in: 1) denying his

motion to suppress, 2) finding the evidence sufficient to

support his conviction under Code § 18.2-370 on the Kida charge,

and 3) failing to exclude witnesses and allowing evidence of

unadjudicated crimes at sentencing.       We reverse the convictions

and remand for further proceedings.

                    A.    THE MOTION TO SUPPRESS

     Appellant argues that his statements of November 13, 1996,

and November 22, 1996, to Detective Hartless should have been

suppressed as violative of his Fifth Amendment right to counsel.

Appellant argues that the November 13 interview violated the

rule in Edwards v. Arizona, 451 U.S. 477 (1981).       Appellant

contends the information obtained during the November 22

interview was tainted by the illegally obtained information on

November 13 and, therefore, was inadmissible.      Further,

appellant argues that his statements on November 22 were made in

an attempt to clarify the incriminating statements that he made

on November 13.   Finally, appellant argues he should have been



                                  - 6 -
re-advised of his Miranda rights prior to the November 22

interview.

                  In order to insure that the Fifth
             Amendment right against compulsory self-
             incrimination is protected during the
             custodial interrogation of criminal
             suspects, the United States Supreme Court
             established a series of "procedural
             safeguards" that law enforcement authorities
             must adhere to when interviewing suspects in
             their custody. See Davis v. United States,
             512 U.S. 452, 457, 114 S. Ct. 2350, 2354,
             129 L.Ed.2d 362 (1994) (citing Michigan v.
             Tucker, 417 U.S. 433, 443-44, 94 S. Ct.
             2357, 2363-64, 41 L.Ed.2d 182 (1974)); see
             also Mier v. Commonwealth, 12 Va. App. 827,
             831, 407 S.E.2d 342, 344-45 (1991).
             Compliance with these procedures is a
             "prerequisite[ ] to the admissibility of any
             statement made by a defendant" during
             custodial interrogation. Miranda, 384 U.S.
             at 476, 86 S. Ct. at 1629; see also Goodwin
             v. Commonwealth, 3 Va. App. 249, 252, 349
             S.E.2d 161, 163 (1986).

Quinn v. Commonwealth, 25 Va. App. 702, 709-10, 492 S.E.2d 470,

474 (1997).

                  In order to "prevent police from
             badgering a defendant into waiving his
             previously asserted Miranda rights" and to
             "protect the suspect's 'desire to deal with
             the police only through counsel,'" the
             United States Supreme Court established the
             "Edwards rule" as a "second layer of
             prophylaxis for the Miranda right to
             counsel." See Davis, 512 U.S. at 458, 114
             S. Ct. at 2355; McNeil v. Wisconsin, 501
             U.S. 171, 176, 178, 111 S. Ct. 2204, 2208,
             2209, 115 L.Ed.2d 158 (1991); Michigan v.
             Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176,
             1180, 108 L.Ed.2d 293 (1990).

Id. at 710-11, 492 S.E.2d at 474-75.




                                 - 7 -
       Under Edwards, "once the defendant invokes his Miranda

right to counsel, all police-initiated interrogation regarding

any criminal investigation must cease unless the defendant's

counsel is present at the time of questioning."       Id. at 711, 492

S.E.2d at 475 (citations omitted).

       The determination of inadmissibility under Edwards involves

application of a three-part test.       See id. at 712, 492 S.E.2d at

475.

            First, the trial court "must determine
            whether the accused actually invoked his
            right to counsel" and whether the defendant
            remained in continuous custody from the time
            he or she invoked this right to the time of
            the statement. Second, if the accused has
            invoked his or her right to counsel and has
            remained in continuous custody, the
            statement is inadmissible unless the trial
            court finds that the statement was made at a
            meeting with the police that was initiated
            by the defendant or attended by his lawyer.
            Third, if the first two parts of the inquiry
            are met, the trial court may admit the
            statement if it determines that the
            defendant thereafter "knowingly and
            intelligently waived the right he had
            invoked."

Id. at 712, 492 S.E.2d at 475 (citations omitted).

       In Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), the

United States Supreme Court held that the defendant, who had

previously invoked his right to counsel, initiated further

conversation with the police by asking, "'Well, what is going to

happen to me now?'" The Court wrote:

            While we doubt that it would be desirable to
            build a superstructure of legal refinements

                                - 8 -
           around the word "initiate" in this context,
           there are undoubtedly     situations where a
           bare inquiry by either a defendant or by a
           police officer should not be held to
           "initiate" any conversation or dialogue.
           There are some inquiries, such as a request
           for a drink of water or a request to use a
           telephone that are so routine that they
           cannot be fairly said to represent a desire
           on the part of an accused to open up a more
           generalized discussion relating directly or
           indirectly to the investigation. Such
           inquiries or statements, by either an
           accused or police officer, relating to
           routine incidents of the custodial
           relationship, will not generally "initiate"
           a conversation in the sense in which that
           word was used in Edwards.

Id.   The Court, however, held that the defendant's question

"evinced a willingness and a desire for a generalized discussion

about the investigation; it was not merely a necessary inquiry

arising out of the incidents of the custodial relationship."

Id. at 1045-46.

                When a motion to suppress is reviewed
           on appeal, the burden is on the appellant to
           show that the ruling, when the evidence is
           considered in the light most favorable to
           the Commonwealth, constituted reversible
           error. See Fore v. Commonwealth, 220 Va.
           1007, 1010, 265 S.E.2d 729, 731, cert.
           denied, 449 U.S. 1017, 101 S. Ct. 579, 66
           L.Ed.2d 477 (1980). We review the trial
           court's findings of historical fact only for
           "clear error," but we review de novo the
           trial court's application of defined legal
           standards, such as "reasonable suspicion"
           and "custodial interrogation," to the
           particular facts of a case. See Shears v.
           Commonwealth, 23 Va. App. 394, 398, 477
           S.E.2d 309, 311 (1996); see also Ornelas v.
           United States, 517 U.S. 690, 700, 116 S. Ct.
           1657, 134 L.Ed.2d 911 (1996).


                               - 9 -
Ford v. Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805

(1998).

     In this case, we find that appellant clearly invoked his

right to counsel at the November 13, 1996 interview when he

stated, "I want to talk to my attorney first."   We also find

that appellant was in continuous custody from the time he

invoked his right to counsel to the time that he made the

incriminating statements about the telephone calls.

     The Commonwealth argues that appellant was not in custody

on November 13 for the purposes of Miranda because he was

incarcerated in another jurisdiction on another charge and had

not been arrested for the offenses relating to the telephone

calls.    The Commonwealth's argument clearly is contrary to the

holding of the United States Supreme Court in Mathis v. United

States, 391 U.S. 1 (1968).    In Mathis, the Court found the

defendant, who was incarcerated in prison on a state sentence

but had not been charged for the offenses under investigation,

was in custody under the reasoning in Miranda.    See Mathis, 391

U.S. at 2-5.   The Court stated, "We find nothing in the Miranda

opinion which calls for a curtailment of the warnings to be

given persons under interrogation by officers based on the

reason why the person is in custody."    Id. at 4-5.   In accord

with Mathis, we reject the Commonwealth's argument and hold that

appellant was in custody for the purposes of Miranda.

Therefore, under Edwards, we find that all interrogation of

                               - 10 -
appellant by the police should have ceased when he asked to

speak with his attorney.

     The officers then permitted appellant to telephone his

attorney.   Just before calling his attorney, appellant indicated

his continuing desire to speak with his attorney by stating, "I

just got to ask him somethin'."    The attorney was unavailable

when appellant telephoned.   Detective Hartless said, "Did they

say when your attorney would be back?"   Appellant answered,

"Nah, they thought he was in court."   Detective Hartless stated,

"Ok we can continue to talk, or, you know, remember you said you

wanted to talk to your attorney."   Appellant said, "Well, I do

'cause I asked him about . . . ask Randy again."   Appellant

clearly answered the detective in the affirmative regarding his

desire to speak to his attorney.    Appellant's statement, "Well,

I do . . . ," also was in the present tense, indicating a

continuing desire to speak with the attorney.   Then, immediately

following appellant's statement that he wanted to speak to his

attorney about Randy, Investigator Schwartz asked, ”Who is

Randy?"   Appellant then described his involvement with Randy and

admitted that he made two of the telephone calls to the

children.   We do not find that any of appellant's repeated

requests to speak to his attorney could be construed as

initiating a "generalized discussion about the investigation."

By inquiring about Randy and asking appellant about his

involvement with Randy and the telephone calls, the officers

                              - 11 -
clearly resumed interrogation after appellant's invocation of

his right to counsel.

     The trial judge found that appellant waived his right to

counsel after the initial invocation.   We find that the trial

court erred in determining that there was a waiver.    Under

Edwards, waiver only lies when the defendant is in continuous

custody from the time of the invocation and the defendant either

initiates the conversation with the police or has his attorney

present during the conversation.   In this case, appellant did

not initiate the November 13 interview with the police, nor did

he have counsel present at the meeting.    Therefore, appellant

could not have waived his right to counsel at the November 13

meeting under the Edwards test.    Therefore, the trial court's

denial of appellant's motion to suppress the November 13

statement was error.

     Appellant contends the November 22 statement should have

been suppressed because:   1) it was tainted by the illegal

information obtained on November 13, 2) it was an attempt to

clarify his statements made on November 13, and 3) appellant was

not re-advised of his Miranda rights.     We agree with appellant

that he should have been re-advised of his rights before the

November 22 interview.

     Edwards held that a statement made by a defendant, who had

been in continuous custody prior to making the statement and who

had initiated the conversation with the police, may be

                              - 12 -
admissible if the trial court determines that the defendant

knowingly and intelligently waived his Miranda rights.        See

Quinn, 25 Va. App. at 712, 492 S.E.2d at 475.       In this case, it

is undisputed that appellant requested the November 22 interview

with Detective Hartless.     The trial judge stated that appellant

waived his rights because he initiated the conversation and

acknowledged that he had been advised of his rights and the

Miranda warnings.     However, the record does not support the

trial court's conclusion.     At the outset of the November 22

interview, Detective Hartless asked appellant two questions,

"Okay, do I need to read you your rights again?        Do you know

'em?"    Appellant answered with one word, "Naw."      It simply is

unclear from the record whether appellant's answer pertained to

the first or the second of the detective's questions.       We cannot

conclude that appellant's one word answer indicates his knowing

and voluntary waiver of his rights under Miranda.        We hold that

the trial court's determination of waiver was error and the

statement, therefore, should have been suppressed.

                    B.   SUFFICIENCY OF THE EVIDENCE

        On brief, the Commonwealth concedes that the evidence was

insufficient to convict appellant under Code § 18.2-370 on the

Kida charge.    We, therefore, reverse appellant's conviction of

taking indecent liberties with a minor on the Kida charge and

enter final judgment.



                                 - 13 -
                       C.   SENTENCING HEARING

     Appellant contends the trial court erred in failing to

separate witnesses and in permitting evidence of unadjudicated

criminal conduct at the sentencing hearing.      We agree with

appellant that the trial court improperly failed to separate the

witnesses, but find no error in the introduction of evidence of

unadjudicated criminal conduct.

     Code § 19.2-265.1 states:

                 In the trial of every criminal case,
            the court, whether a court of record or a
            court not of record, may upon its own motion
            and shall upon the motion of either the
            attorney for the Commonwealth or any
            defendant, require the exclusion of every
            witness to be called, including, but not
            limited to, police officers or other
            investigators; however, each defendant who
            is an individual and one officer or agent of
            each defendant which is a corporation or
            association shall be exempt from the rule of
            this section as a matter of right.

     In Johnson v. Commonwealth, 217 Va. 682, 683, 232 S.E.2d

741, 742 (1977), the Supreme Court of Virginia held that a

defendant's right to exclusion of witnesses at trial was

absolute.

     Therefore, as the sentencing phase is a part of the trial,

the trial judge in this case was required by the mandatory

language in Code § 19.2-265.1 to exclude the witnesses from the

courtroom on appellant's motion.    We do not reach a harmless

error analysis as this case is remanded for further proceedings.



                                - 14 -
     Code § 19.2-264.3:2 states:

               Upon motion of the defendant, in any
          case in which the offense for which the
          defendant is to be tried may be punishable
          by death, if the attorney for the
          Commonwealth intends to introduce during a
          sentencing proceeding held pursuant to
          § 19.2-264.4 evidence of defendant's
          unadjudicated criminal conduct, the attorney
          for the Commonwealth shall give notice in
          writing to the attorney for the defendant of
          such intention. The notice shall include a
          description of the alleged unadjudicated
          criminal conduct and, to the extent such
          information is available, the time and place
          such conduct will be alleged to have
          occurred.

               The court shall specify the time by
          which such notice shall be given.

     Code § 19.2-299(A)(ii) states, in pertinent part, that when

a person is found guilty upon a felony charge

          the court may . . . direct a probation
          officer of such court to thoroughly
          investigate and report upon the history of
          the accused, including a report of the
          accused's criminal record as an adult and
          available juvenile court records, and all
          other relevant facts, to fully advise the
          court so the court may determine the
          appropriate sentence to be imposed.

     We have interpreted Code § 19.2-299 to include the

introduction of evidence of unadjudicated criminal conduct in

non-capital murder felony cases.   See Thomas v. Commonwealth, 18

Va. App. 656, 658-59, 446 S.E.2d 469, 471 (1994) (en banc).

While in Thomas, the evidence of unadjudicated criminal conduct

was introduced through the presentence report, we find no

distinction between a probation officer's report of the

                             - 15 -
defendant's past history and the admissibility of live testimony

on the issue.

     Therefore, appellant's argument that evidence of

unadjudicated criminal conduct is limited to capital murder

cases is without merit.

                          III.   CONCLUSION

     For these reasons, we hold that appellant's November 13,

1996 and November 22, 1996 statements to Detective Hartless were

inadmissible pursuant to Edwards.     We also hold that the

evidence was insufficient to support appellant's conviction

under Code § 18.2-370 on the Kida charge.     Therefore, we reverse

appellant's convictions and remand for further proceedings if

the Commonwealth be so advised.

                                          Reversed and dismissed,
                                           in part, and reversed
                                           and remanded, in part.




                                 - 16 -
