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. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 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. 
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 

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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. 

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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: 

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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 

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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 

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

interview. 

 In order to insure that the Fifth 

Amendment right against compulsory selfincrimination 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. 

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 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 

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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). 

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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 

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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 

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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 

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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. 

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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. 

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 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 

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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.

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