COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

TIMOTHY PURCELL CLARK 

v. Record No. 0306-95-1 MEMORANDUM OPINION* BY 

 JUDGE NELSON T. OVERTON 

COMMONWEALTH OF VIRGINIA JANUARY 30, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

John D. Gray, Judge 

 James S. Ellenson for appellant. 

 Thomas C. Daniel, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 Timothy Clark was convicted by a jury of murder during the 

commission of an attempted robbery, attempted robbery, and 

related firearms offenses. He appeals his convictions on three 

grounds: (1) that the Commonwealth impermissibly charged and 

tried him for capital murder when he was under the age of sixteen 

at the time of the offense; (2) that his confession was 

improperly admitted; and (3) that the trial court improperly 

restricted the scope of his opening remarks regarding the 

confession. After reviewing the record, we find no error and 

affirm the convictions. 

 On June 30, 1994, eighteen days before Clark's sixteenth 

birthday, Clark and some companions stopped two other youths on 

the street. Clark pointed a gun towards the boys and ordered 
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them to empty their pockets. When one of the boys showed Clark 

he had no pockets, Clark hit him in the head with the gun. The 

gun went off and the boy died twelve hours later from the 

resulting head wound. 

 The police arrested Clark on July 9 in the middle of the 

afternoon. He was held in an interview room until his parents 

arrived and was then advised of his Miranda rights. Clark signed 

a form indicating his understanding of his rights, and his 

parents signed as witnesses. Clark then made out a written 

statement of the events. 

 At trial, Clark's counsel attempted to argue to the 

voluntariness of the confession in his opening remarks. The 

judge ruled that counsel could not argue the validity of the 

confession in his opening statement, but that he could argue as 

to the weight in closing. 

 Clark first argues that he cannot be charged with a capital 

crime because he was under the age of sixteen at the time of the 

offense. Execution of a defendant less than sixteen years of age 

violates the Eighth Amendment to the United States Constitution. 

Thompson v. Oklahoma, 487 U.S. 815 (1988). No statutory or 

constitutional prohibitions exist on merely charging a minor with 

a capital crime when the death penalty is not being sought by the 

Commonwealth. As expressly authorized by statute, Clark's 

offense was such that the General Assembly has determined that he 

could be treated as an adult in this case. Code § 16.1-269.1(B); 
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Novak v. Commonwealth, 20 Va. App. 373, 383, 457 S.E.2d 402, 407 

(1995). No error was committed in charging Clark with capital 

murder. 

 Clark also contends that the trial court erred in 

determining that his confession was voluntarily given. The 

evidence viewed as a whole, including the environment of the 

confession, the presence of his parents, and the signed waiver of 

rights, demonstrates that the statement was voluntary. Admission 

of the statement was not error. 

 Nor was it error to limit the defense's scope in opening 

remarks. A trial court does not abuse its discretion in ruling 

that counsel may not use opening statements for argument. See

Spencer v. Commonwealth, 238 Va. 295, 311-12, 384 S.E.2d 785, 

795-96 (1989), cert. denied, 493 U.S. 1093 (1990). Defense was 

given the opportunity, and used it, to argue to the weight of the 

confession in closing. 

 For the foregoing reasons, we find no error. The 

convictions are affirmed. 

 Affirmed.