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 selfincrimination 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 

"struggling with basic phonetic skills,5

 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 

of limited intelligence is capable of executing a valid waiver.6

 

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 

suppressed.8

 

Affirmed. 

 

waiving them from these prior advisements. 

- 14 -

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).