                      COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Overton
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                   *
          MEMORANDUM                       OPINION                   BY
     Record No. 3062-01-2                   JUDGE ROSEMARIE ANNUNZIATA
                                                   MAY 17, 2002
QUINCY BROWN, S/K/A
 QUINCY JAMIL BROWN


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Thomas N. Nance, Judge

           Amy L. Marshall, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellant.

           Prescott L. Prince (Carrie W. Witter, Third
           Year Law Student; Clarke & Prince, on brief),
           for appellee.


     Quincy Brown (defendant) stands indicted for murder,

attempted murder, carjacking, and robbery.       The Commonwealth

appeals a pretrial ruling granting defendant's motion to suppress

a statement he made during a custodial interrogation.       It

contends the statement should not be suppressed because Brown

knowingly, intelligently, and voluntarily waived his right to

counsel and his right to remain silent.       For the reasons that

follow, we affirm the trial court's decision.



                              Background

     Viewed in the light most favorable to Brown, the party


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below, Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991), the evidence proved that on July

13, 2001 at 4:00 p.m., two uniformed police officers approached

Brown, fifteen years old at the time, because they suspected he

had participated in several crimes they were investigating.         They

found him smoking a marijuana cigarette.        The officers informed

Brown that he had been seen in the victim's automobile.

     Detective James E. Foster, who was investigating the crimes,

arrived at the scene soon thereafter.         One of the officers

searched Brown and found in his back pants pocket a gold ring

belonging to one of the victims.       The officer then arrested

Brown.   After Brown was informed of his Miranda rights, Detective
Foster took him to the police station for questioning.

     The police did not attempt to contact Brown's mother to

advise her that he had been arrested and was in police custody.

The police knew he was fifteen years old with only an eighth

grade education.   They did not know he had an intellectual

functioning capacity of an eight year old.

     In the interrogation room, Detective Foster, after some

preliminary questions, told Brown:

           I'm going to read you your rights before I
           start talking to you.

                   *   *    *      *      *      *    *

           What I'd like for you to do is listen to me
           while I read you these rights. Don't make
           any comment to me, don't get mad, don't get
           abrupt, just listen and then, I'll tell you
           and then you can tell your side of the
           story.

           [Reading from the form] You have an absolute
           right to remain silent and make no statement
                                - 2 -
             to me. Any statement you make [inaudible]
             an attorney may be used as evidence against
             you. You have the right to the presence of
             an attorney at this or any future interview
             the police may have with you. If you are
             unable to hire an attorney, the court will
             appoint one for you. You understand those
             rights? [Brown nods.]

             And understanding these rights, if you wish
             to waive them and make a statement to me you
             can if you wish. 1

             What I want you to do is sign your name here
             [handing him the form] that I read you your
             rights and that you understand them.


         Complying with the detective's directive, Brown signed the

form without reading it.    Detective Foster did not give Brown an

opportunity to read the form, nor did he further explain that by

signing it, Brown was giving up his constitutional rights.      He

did not specifically ascertain whether Brown understood that he

was waiving his right by signing the form.    He did not ask Brown

if he could read, or if he had difficulty in school.       Indeed,

Foster testified that he did not know if Brown understood the

meaning of the term "waiver."

     After Brown signed the form, Foster told Brown the facts

known to the police.    He informed him that the police had found a

ring belonging to one of the victims in Brown's back pocket,

which would pose a problem for him because it "put [him] at the

scene."    Foster promised Brown he would ask the prosecutor for

leniency toward Brown if he "[told him] the whole truth."

     Although Brown had six prior criminal charges against him in

     1
       The form, however, states: "I understand these rights and
wish to waive them and make a statement."
                                 - 3 -
the juvenile system, the record does not indicate whether he had

ever before been in an interrogation room or had been advised of

his Miranda rights.

     Based on the totality of the circumstances as evidenced by

the videotape, which the trial court viewed, and the other

evidence before it, the trial court granted Brown's motion to

suppress his statement, reasoning as follows:

                 [Y]ou have got a child, a young man
            here who is borderline retarded. I don't
            know if he can read or write or not.

                 I was impressed by the fact that he
            responded properly to Detective Foster when
            he talked to him and when he read his rights
            to him. But, you can never convince me that
            he understood his rights. I think he
            probably did. 2

                 But once he was told that the
            [victim's] ring was [found] in [his] pocket,
            and you're gonna have to tell us, and your
            job is to tell us, I'm going to go to the
            Commonwealth's Attorney, I don't think . . .
            that would be a voluntary waiver of his
            rights.

                              Analysis

     The Commonwealth contends the trial court erred in

suppressing Brown's confession.   It claims the trial court erred

in finding that Brown did not knowingly, intelligently, and

voluntarily waive his rights.   For the reasons that follow, we

disagree.

     On review of a Commonwealth's pretrial appeal of a


     2
       In the context of the entire record, we treat this
apparent inconsistency as a scrivener's error and read this
sentence as stating, "I think he didn't."

                                - 4 -
suppression motion, we consider the evidence in the light most

favorable to the party prevailing below, in this case Brown.

Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48.     Whether a

waiver of Miranda rights was made knowingly, intelligently, and

voluntarily is a question of fact.      Harrison v. Commonwealth, 244

Va. 576, 581, 423 S.E.2d 160, 163 (1992).     Thus, "the trial

court's resolution of that question is entitled on appeal to a

presumption of correctness."   Id.     We will not disturb the trial

court's factual finding unless it is plainly wrong.      Watkins v.
Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422, 429-30 (1985)

(citations omitted).

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

custodial interrogations 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

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)); see also Va. Const. art. I, §§ 8 and 11.

An accused, including a juvenile, may waive his or her right to

remain silent or have counsel present.      Fare, 442 U.S. at

724-25.

      A waiver, however, is valid only if it is made knowingly,

intelligently, and voluntarily.      See Miranda v. Arizona, 384 U.S.

436, 475 (1966); Grogg, 6 Va. App. at 611, 371 S.E.2d at 556.

"[T]he Commonwealth must demonstrate that the waiver 'not only be

voluntary, but must also constitute a knowing and intelligent

relinquishment or abandonment of a known right or privilege . . .

.'"   Grogg, 6 Va. App. at 611, 371 S.E.2d at 556 (quoting Edwards

                               - 5 -
v. Arizona, 451 U.S. 477, 482 (1981)).      "The courts must presume

that a defendant did not waive his rights."       North Carolina v.

Butler, 441 U.S. 369, 373 (1979); see also Grogg, 6 Va. App. at

611, 371 S.E.2d at 556 ("Courts must indulge every reasonable

presumption against waiver." (citing Brewer v. Williams, 430 U.S.

387, 404 (1977))).   Hence, "a heavy burden rests on the

government to demonstrate that the defendant knowingly and

intelligently waived his privilege against        self-incrimination

and his right to retained or appointed counsel."       Miranda, 384

U.S. at 475; accord Grogg, 6 Va. App. at 611, 371 S.E.2d at 556.
       As in all cases where the validity of a Miranda waiver is an

issue on appeal, we must consider whether the "totality of the

circumstances" supports the trial court's finding on the issue.

Fare, 442 U.S. at 725; Grogg, 6 Va. App. at 612, 371 S.E.2d at

556.   Such circumstances include "[the accused's] background and

experience and the conduct of the police," Correll v.

Commonwealth, 232 Va. 454, 464, 352 S.E.2d 352, 357 (1987)

(citations omitted), and, in the case of a juvenile, his or her

age, education, and intelligence, as well as his or her "capacity

to understand the warnings given him [or her], the nature of his

Fifth Amendment rights, and the consequences of waiving those

rights."    Fare, 442 U.S. at 725.

       However, because the "admissions and confessions of

juveniles require special caution," courts have applied an

augmented test to determine whether the juvenile's waiver of his

or her rights rights is valid.       In re Gault, 387 U.S. 1, 45

(1967).    In such cases, the trial court must find that the police

"took care to ensure that [the juvenile] understood his rights."

                                 - 6 -
442 U.S. at 726; accord Green v. Commonwealth, 223 Va. 706, 710,

292 S.E.2d 605, 608 (1982) (affirming the trial court's finding

that defendant's waiver was knowing and voluntary because "the

police exercised the greatest care in seeing Green's rights were

protected . . .").

        In Fare, the United States Supreme Court affirmed the lower

court's finding that the juvenile knowingly waived his Miranda

rights because the police read and explained the rights to the

juvenile twice, and "ascertained that [he] understood those

rights."       442 U.S. at 726.   The officer asked the accused, "Do

you understand all of these rights as I have explained them to

you?"     Id. at 710.    The defendant responded, "Yeah."     Id.    The

officer then asked, "[D]o you wish to give up your right to

remain silent and talk to us about this murder?"        Id.   After

further explanation, the defendant responded, "Yeah, I might talk

to you."       Id.   The officer then asked, "Do you want to give up

your right to have an attorney present here while we talk about

it?"     Id.    When the juvenile asked for his probation officer

instead, the officer again clarified, "You have the right to an

attorney."       Id.   A few seconds later, the officer repeated,

"[W]ill you talk to us without an attorney present?" and the

defendant responded, "Yeah I want to talk to you."          Id. at 711.

        In Virginia, we require the same assurance that a juvenile

in police custody has knowingly waived his or her rights before a

subsequent confession may be used against the juvenile.         In

Green, for example, the Virginia Supreme Court found that the

Commonwealth established the voluntariness of Green's waiver

because "the police exercised the greatest care in seeing Green's

                                    - 7 -
rights were protected."     223 Va. at 710, 292 S.E.2d at 608.   The

police advised the accused of his Miranda rights three times and

twice cautioned him not to make a statement without his mother

present.   Id.    The officer asked Green if he understood the

offenses with which he was charged, and Green defined the terms

with specificity.      Id. at 709, 292 S.E.2d at 607.   Only after the

officer had thus ensured Green's understanding of his rights and

the consequences of waiving them, Green made incriminating

statements.      Id. at 710, 292 S.E.2d at 608; accord Simpson v.
Commonwealth, 227 Va. 557, 564, 318 S.E.2d 386, 390 (1984)

(upholding trial court's determination that defendant voluntarily

and intelligently waived his Miranda rights because the police

read the warning "three times, in clear and simple language, . .

. [and] amplified the warnings in words which, in the expert's

opinion, [the juvenile] could not fail to understand"); Roberts

v. Commonwealth, 18 Va. App. 554, 445 S.E.2d 709 (1994)

(upholding trial court's determination that defendant's waiver

was knowing where he verbally responded in the affirmative each

time the officers asked him if he understood his Miranda rights);
Grogg, 6 Va. App. at 615, 371 S.E.2d at 558 (upholding trial

court's determination that defendant's waiver was knowing where

"[t]he waiver and consent form contained simple, understandable

language," and the officer "read each individual Miranda warning

and asked [the juvenile] if he understood the right").

     This standard for measuring the validity of a waiver of

Miranda rights in cases involving juveniles is particularly

applicable when neither a parent, guardian, nor counsel is

present at the time of the juvenile's waiver.      Grogg, 6 Va. App.

                                  - 8 -
at 613, 371 S.E.2d at 557 (the absence of a parent or counsel is

"'a circumstance that weigh[s] against the admissibility of the

confession'" (quoting Miller v. Maryland, 577 F.2d 1158, 1159

(4th Cir. 1978))); see also Gallegos v. Colorado, 370 U.S. 49, 54

(1962) (the confession of a fourteen year old, obtained in the

absence of his parents, violated his right against        self-

incrimination because such a child "is unlikely to have any

conception of what will confront him when he is made accessible

only to the police, . . . [and] is unable to know how to protect

his own interests or how to get the benefits of his

constitutional rights").    Thus, we begin our analysis of the

present case noting that neither counsel nor a parent or other

independent person was present with Brown during the

interrogation, and we look for evidence in the record showing

that the police "took care to ensure that [Brown] understood his

rights."     Fare, 442 U.S. at 726.

        As made clear by the videotape of the interrogation, which

was reviewed by the trial court, Detective Foster not only failed

to ensure that Brown understood his rights, he did not ascertain

whether Brown, to the extent he was aware that he had

constitutional rights during the interrogation, wished to waive

those rights.    First, Detective Foster began the presentation of

Brown's Miranda rights by admonishing him, "[L]isten to me while
I read you these rights.    Don't make any comment to me, don't get

mad, don't get abrupt, just listen and then I'll tell you and

then you can tell your side of the story."

        Next, he rapidly and without pause read Brown a Miranda

form.    He offered neither explanation of the rights nor an

                                 - 9 -
invitation to seek an explanation.     Detective Foster's manner in

reading the Miranda rights to Brown served to confirm that Brown

was to remain silent while his rights were read and that

interruptions for clarification would not be tolerated.

     Immediately upon reading the last Miranda right printed on

the form from which he was reading, Detective Foster said, "You

understand these rights?"   Brown quickly nodded in the

affirmative, and Detective Foster continued, saying, at the same

rapid pace, "Understanding these rights and if you wish to waive

them and make a statement to me you can if you wish."     Then he

handed Brown the form and told him, "[S]ign your name here that I

read you your rights and that you understand them."    Brown

followed the directive, which effectively foreclosed his reading

the form.
     Detective Foster never pointed out that Brown's signature on

the form was an indication that he chose to give up his rights. 3

Nor did Foster ask Brown orally whether he chose to give up his

rights.   The entire procedure from the time Foster began giving

Brown his Miranda rights to the time Brown signed the form took
less than one minute.

     In short, Detective Foster did not ensure that Brown

understood that he had a right to remain silent and a right to

have an attorney present and that he wished to give up either or

both of those rights.   In fact, Foster testified that he did not

know if Brown understood the meaning of the term "waiver," which

     3
       In fact, Detective Foster did not read the portion of the
form that stated, "I understand these rights and wish to waive
them and make a statement."

                              - 10 -
was the only term used to suggest to Brown that he was giving up

his rights.

     Evidence apart from the videotaped interrogation also

demonstrates that Brown was of low intellectual function, a fact

that supports the trial court's conclusion that he did not

understand his rights or the consequences of waiving them. 4   The

record shows that the police knew Brown was only fifteen years

old with only an eighth grade education; they failed to ascertain

his intellectual capacity and functioning, however.   A

psychological report prepared to assess Brown's educational needs

listed his verbal IQ at 60, his verbal comprehension at 59, and

his full scale IQ at 65.   These scores placed his overall

intellectual functioning within the range of "significant mental

deficiency."   Indeed, the tests indicated that Brown was
                                       5
"struggling with basic phonetic skills, including vowel sound
and consonant blends.   In short, his ability to "decode words"

was significantly impaired.   These language limitations,

considered together with, and in the context of, the manner in

which the Miranda rights were presented, including Detective


     4
       The Commonwealth contends the trial court incorrectly
stated that it was not able to conclusively find that Brown
could read. However, the record indicates that Brown's reading
and writing skills were in the bottom one percent of children
his age. Accordingly, the trial court's doubt as to whether
Brown could read or write is not unfounded. Furthermore, since
the record establishes that Brown was not given an opportunity
to read the waiver form and that he did not read it, the point
is moot.
     5
       Webster's defined "phonetic" as "of or relating to spoken
language or speech sounds." Webster's Third International
Dictionary 1700 (1993).

                              - 11 -
Foster's failure to determine whether Brown wished to give up his

rights, compel us to conclude the trial judge's ruling that he

was not persuaded that Brown understood his rights, and that

Brown's waiver was neither knowing nor intelligent, is fully

supported by the record.

     The Commonwealth cites Wright v. Commonwealth, 245 Va. 177,

184, 427 S.E.2d 379, 385 (1993), vacated on other grounds, Wright

v. Virginia, 512 U.S. 1217 (1994), and Correll, 232 Va. at 464,

352 S.E.2d at 357-58, to support its proposition that a juvenile
                                                                    6
of limited intelligence is capable of executing a valid waiver.
In each of these cases, however, the facts supported the trial

court's finding that the juvenile understood his rights and the

consequences of waiving them.     Because Brown's situation differs

substantially from the defendants in Wright and Correll, they are

not persuasive.

     In Wright, for example, the Virginia Supreme Court noted

that Wright had experienced a number of prior arrests, his

psychologist testified that his test scores did not accurately

reflect his "street smarts," and Wright stated specifically that

he understood his rights.   Id.    Likewise, the Court in Correll

held that the defendant understood his Miranda rights and

intelligently waived them because he "had on a number of prior

     6
       The Commonwealth also argues that our decision in Novak v.
Commonwealth supports its position that Brown intelligently
waived his rights. 20 Va. App. 373, 386-87, 457 S.E.2d 402,
408-09 (1995). However, the defendant in Novak was not of
limited intelligence. Rather, the trial court found that Novak
was "highly intelligent," and had "a full understanding of the
interview process and what was being said and why he was there."
20 Va. App. at 387, 457 S.E.2d at 409. Consequently, Novak does
not support a conclusion that the trial court's finding that was
                                - 12 -
occasions dealt with the police and received Miranda warnings,"

and had received them several times in connection with the

conviction before the Court. 7    232 Va. at 464, 352 S.E.2d at 358.

     Nothing in the record suggests Brown had significant

experience with the police or exhibited "street smarts."

Likewise, nothing in the record suggests Brown was familiar with

the Miranda warnings or the consequences of waiving them.

Although he had prior criminal charges against him in the

juvenile system, the record does not indicate that he had ever

before been in an interrogation room or received Miranda
warnings.

     Finally, we conclude that the waiver was not voluntary.

First, Brown could not voluntarily give up a right the import of

which he did not understand.     Second, Brown was interrogated

while in handcuffs, a factor properly considered when determining

the voluntariness of the waiver.     Cf. Grogg, 6 Va. App. at 614,

371 S.E.2d at 557 (considering the fact that the juvenile was not

in handcuffs during questioning in determining whether the

interrogation was coercive).     Further, the detective's manner in


plainly wrong.
     7
       Brown was also given his Miranda rights at the time of his
arrest, although he was not interrogated at that time. While
repeated exposures to Miranda rights may weigh in favor of
concluding the defendant knowingly, intelligently and
voluntarily waived those rights, see Correll, 232 Va. at 464,
352 S.E.2d at 358, the record fails to show the circumstances
under which the rights were first given to Brown, the manner in
which they were given, the degree of focus Brown manifested when
the rights were read to him, and other relevant factors from
which the trier of fact could weigh and evaluate the
effectiveness of the presentation and consequent understanding
of those rights. In short, we cannot be certain from this
record that Brown understood his rights or the consequences of

                                 - 13 -
giving Brown his rights, which afforded him no opportunity to

raise questions or concerns, together with the detective's quick,

terse directive to "just listen," and his concluding directive to

"sign here," did little to "dispel the compulsion inherent in

custodial surroundings."        Miranda, 384 U.S. at 458.   Under the

facts of this case, a presentation of Miranda rights in this

manner can properly be seen as intimidating and coercive.

     In conclusion, the evidence, viewed in its totality and in

the light most favorable to Brown, supports the trial court's

finding that Brown's waiver was not knowing, intelligent, and

voluntary.        Accordingly, we affirm the trial court's finding and

its suppression of Brown's subsequent statement.       Because we

affirm on this ground, we do not address the Commonwealth's

contention that the confession was voluntary and thus improperly
              8
suppressed.
                                                              Affirmed.




waiving them from these prior advisements.
     8
       This inquiry "differs from the discrete inquiry of whether
the waiver was voluntary. The former requires a determination
of whether the procedure was fundamentally fair . . . while the
latter requires only a factual inquiry." Harrison v.
Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 162 (1992)
(citation omitted); accord Kauffmann v. Commonwealth, 8 Va. App.
400, 405, 382 S.E.2d 279, 281 (1989) (assessing the
voluntariness of the confession after determining waiver was
valid).
                              - 14 -
