COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Bumgardner 

Argued at Norfolk, Virginia 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 2204-98-1 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 19, 1999 

JIMMY WILLIAMS 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Marc Jacobson, Judge 

H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on briefs), for appellant. 

B. Thomas Reed (Joseph C. Lindsey, on 

brief), for appellee. 

 On January 7, 1998, Jimmy Williams ("the defendant") was 

indicted for capital murder and two counts of using a firearm in 

the commission of murder. On April 24, 1998, the defendant 

filed a motion to suppress a statement he gave to officers of 

the Norfolk Police Department. The statement inculpated Kelvin 

Hudson, the defendant's brother and codefendant. The trial 

court granted the suppression motion, finding that the statement 

was "constitutionally invalid." The Commonwealth appeals this 

decision, asserting the defendant voluntarily waived his Fifth 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.
Amendment constitutional rights. We agree and reverse the trial 

court's decision to suppress the defendant’s statement. 

I. 

FACTUAL BACKGROUND 

 On September 16, 1997, Demetrius Ray Wiley, William 

Spencer, and Terry Chark were murdered in Norfolk. 

Subsequently, juvenile petitions were issued against the 

defendant for the murders. Detective David Newman arrested the 

defendant and brought him to the Police Operations Center 

("POC") in Norfolk, where Newman and another detective attempted 

to interview him about the murders. After advising the 

defendant of his Miranda rights, however, the defendant declined 

to speak with the detectives, and the detectives ceased 

questioning him. 

 At some point after the defendant's preliminary hearing in 

December 1997, while he was being held at the Norfolk City Jail, 

the defendant told Jennell Jackson, his sister, that he wanted 

to talk to the police about the murders.1 The defendant also 

asked his mother, Davelyn Ann Williams, to tell his lawyer, 

Danny Shipley, that he wanted to speak with him about the 

murders. In response, Williams and Jackson went to Shipley's 

office and informed him of the defendant's requests. Shipley 

 

 1Even before his arrest, the defendant told Jackson that 

their brother, Kelvin Hudson, had killed Terry Chark, another 

brother, and that he wanted to give this information to police. 

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informed them that he would arrange for an interview with police 

so that the defendant could give a statement. Because of his 

concerns regarding the defendant's ability to communicate, 

however, Shipley told Williams and Jackson that he wanted to be 

present during the interview and told them to likewise be 

present. 

 On March 3, 1998, Williams and Jackson also contacted 

Newman at his home and asked to speak with him at the POC. When 

Newman met with Williams and Jackson, they informed the officer 

the defendant wanted to speak with him, summarizing what the 

defendant would say. 

 On March 4 or 5, 1998, Shipley spoke with Norman Thomas, 

Deputy Commonwealth's Attorney, and scheduled a meeting between 

the defendant and police at the POC for Monday, March 9, 1998. 

During their conversation, Shipley informed Thomas that he 

"thought it would be best for [the defendant's] mother [and him] 

to be there" because of the defendant's "inability to 

communicate very well." 

 On Friday evening, March 6, 1998, Shipley realized that he 

had a previous engagement that precluded him from attending the 

March 9 meeting with police. On the morning of March 9, Shipley 

left a message at Thomas' office, informing Thomas that he could 

not attend the meeting and asking that the meeting be 

rescheduled. Shipley and Thomas continued to exchange messages 

for the remainder of the day, never successfully speaking to one 

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another in person. At one point, Thomas left a message for 

Shipley inquiring whether the police could conduct the interview 

as scheduled if the defendant's family was present, since there 

was no legal requirement that counsel be present. Shipley 

returned the message on Thomas' voice mail, stating that he 

wanted the meeting to be rescheduled so that he could attend. 

Shipley never indicated the defendant did not want to speak with 

the police. 

 After consulting with Thomas as to the legality of carrying 

out their prearranged meeting with the defendant despite the 

absence of counsel, the police contacted Williams and Jackson 

and arranged for them to meet the defendant at the POC. Newman 

explained that Shipley would not be present at the interview, 

but that the defendant could carry on without the presence of 

counsel if he was willing to do so. As previously arranged, the 

police transported the defendant from the Norfolk City Jail to 

the POC. Williams and Jackson were present when the defendant 

arrived at 5:30 p.m. Newman and another detective began 

speaking with the defendant, Williams, and Jackson at 

approximately 5:50 p.m. regarding whether to go forward with the 

interview without Shipley. Williams and Jackson remained with 

the defendant throughout his meeting with the detectives. 

 At the defendant's suppression hearing, three witnesses 

testified the defendant wanted to speak with the police on March 

9, 1998 notwithstanding Shipley's absence. Jackson testified: 

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Q. Did you learn that Jimmy's attorney 

could not [meet at the POC that day]? 

A. When we got there, he said he couldn't 

go. We talked to his secretary earlier that 

day and he wasn't coming there. 

Q. And did you understand that he wanted to 

postpone that meeting? 

 A. Yes. 

Q. During that period of time, did Jimmy 

still want to talk to the police? 

 A. Yes. 

Q. Did Jimmy want to talk to the police 

even though his attorney couldn't be there 

and wanted to postpone. 

 A. From my understanding, yes. 

Q. And is that from talking to Jimmy? 

 A. Yes. 

Williams testified in pertinent part: 

Q. So someone told you that [Shipley] 

didn't have to be there? 

 A. Yes. 

Q. Were you ever told that [Shipley] wanted 

to be there and wanted to reschedule? 

 A. Yes. 

 Q. Who told you that? 

A. [Shipley's] secretary and also the [sic] 

Detective Newman said that [Shipley] wanted 

to reschedule it. 

* * * * * * * 

Q. At any time you were with [the 

defendant] that night, did you get the 

impression he did not want to talk to the 

police or did you get the impression that he 

wanted to talk to the police? 

A. I got the impression that he wanted to 

because he thought it was the right thing. 

That's the impression I got. 

Officer Newman also testified the defendant wished to speak with 

the police: 

Q. Did [Williams and Jackson] give you 

affirmative statements that [the defendant] 

wanted to talk to you? 

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 A. Yes, they did. 

Q. Did you receive some word about defense 

counsel, Mr. Shipley, not being available? 

A. Yes. Dee Williams, the mother of Jimmy 

Williams advised me that she was to 

understand that the meeting was to be 

continued and that she was frustrated; that 

she said that she waited too long and that 

Jimmy was getting upset, wanting to talk to 

us regardless of whether he was present or 

not; if we could go ahead and still have the 

meeting and go ahead that day, which is what 

we went ahead and arranged. 

Q. Did you have discussions with [Williams 

and Jackson] about whether to go forward or 

whether to postpone so that defense counsel 

could be there? 

A. Yes, I did [and they wished to go 

forward]. 

* * * * * * * 

 Q. What about with [the defendant]? 

A. He wished the same. When he was brought 

in and I initially set him down and I 

advised him and made him aware that he was 

represented by Mr. Shipley, that he was not 

required to make any statement to me or talk 

to me; that if he wanted to, it would have 

to be because he, in fact, wanted to and 

that he had the option to have Mr. Shipley 

present or not present and that was up to 

him, and it was his desire at that time that 

he expressed he wanted to talk to me without 

Mr. Shipley present. 

 After ascertaining the defendant wanted to make a 

statement, Newman read the defendant his Miranda rights using 

the Norfolk Police Department Legal Rights Advice Form. Newman 

invited both the defendant and his mother to ask him any 

questions regarding these rights as he read them. After reading 

that the defendant had the right to have counsel present "during 

all questioning," Newman directly asked the defendant if he 

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wanted to continue with the interview. The defendant replied 

affirmatively. The defendant also read the form himself and 

indicated that he understood his rights by writing "yes" 

together with his initials next to each sentence outlining his 

rights. The defendant signed the form, while Officer Newman and 

Williams signed as witnesses. Jackson testified that this 

process took a "long time," during which no one pressured the 

defendant to act more quickly. 

 After completing the Legal Rights Advice Form, Newman and 

the defendant discussed the present offenses without recording 

the conversation. Newman subsequently took a recorded statement 

from the defendant, which the Commonwealth proffered as Exhibit 

Number 1 at the suppression hearing. At the beginning of this 

statement, the defendant acknowledged that he understood his 

rights as set forth in the Legal Rights Advice Form and, 

particularly, that he understood he had the right to have 

Shipley present during the interview. Nonetheless, the 

defendant stated that he desired to speak with the police 

notwithstanding Shipley's absence and proceeded to tell police 

about the circumstances surrounding the murders of Wiley, 

Spencer, and Chark, answering all questions asked by the 

officers as he did so.2

 

 2Specifically, the defendant described an incident in which 

he, Terry Chark, Kelvin Hudson, and two companions became 

involved in a gunfight with several other individuals, with whom 

Hudson had an earlier argument. According to the defendant, 

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 After completing the statement, Newman reviewed it with the 

defendant and his mother, allowing them to read one page at a 

time. The defendant indicated that he could read and write; 

Williams agreed, though cautioning that the defendant was "a 

little slow" and required extra time to go through the 

statement.3 Whenever Newman saw a discrepancy in the statement, 

he would point it out to the defendant and have the defendant 

clarify his meaning. Newman then made any necessary correction 

and initialed it. After reviewing a page of his statement, the 

defendant initialed the top and bottom of each page. Newman 

testified that the defendant's review of his statement was "a 

time-consuming process," in which they "took each page one by 

one and made sure everything was correct." Newman further 

testified the defendant's answers to the recorded statement were 

substantially similar to those given during their earlier 

 

Hudson forced him to go to the fight, striking him in the head 

several times when he protested. Each individual, including the 

defendant, possessed a gun during the altercation. The defendant 

stated that Hudson, his codefendant, shot Chark during the 

gunfight. After the shooting, Hudson told the defendant to "keep 

[his] mouth shut." The defendant stated that, although he fired 

his gun twice into the ground during the fight, he did not shoot 

anyone. 

 3

At that time, the defendant was sixteen years old. The 

defendant regularly attended Norview High School where he took 

special education classes. The defendant did not comprehend as 

quickly as "normal children" and required additional explanation, 

time, and patience to achieve understanding. The defendant could 

write, read "a little bit," and do basic mathematics, such as 

adding and subtracting. The defendant received nearly $500 a 

month from SSI, which one of his sisters helped him save. When 

shopping, the defendant was capable of choosing what he wanted 

for himself. The defendant also knew how to drive a car. 

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unrecorded discussion. At one point, the police interrupted the 

interview so that Williams could leave and get the defendant 

something to eat. During this time, the defendant was allowed 

to "visit" with Jackson and "collect his thoughts." The 

defendant did not ask the police any questions during the 

interview. 

 In determining that the defendant's statement was 

"constitutionally invalid" and granting the motion to suppress, 

the court cited as grounds the following: 1) admissions by 

juveniles require special precautions to ensure they were not 

involuntary; 2) the defendant's diminished mental capabilities 

and inexperience with the criminal justice system; 3) the 

defendant, his mother, or his sister had never been advised that 

Shipley specifically requested and wished to be present when the 

defendant spoke to the police; and 4) Shipley "specifically and 

affirmatively indicated that he desired, intended and expected 

to be present at and for any statement given by Williams to the 

police and was under the impression that such would be the 

case." 

II. 

LEGAL PRINCIPLES 

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

custodial interrogation 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 

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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)). An accused may waive his constitutional 

right to remain silent and to the presence of an attorney 

provided the waiver is made voluntarily, knowingly, and 

intelligently. See Skinner v. Commonwealth, 212 Va. 260, 263, 

183 S.E.2d 725, 728 (1971); Roberts v. Commonwealth, 18 Va. App. 

554, 557, 445 S.E.2d 709, 711 (1994). An accused may waive the 

presence of his or her attorney after one has been appointed or 

retained, even though the attorney has instructed the accused to 

remain silent. See Lamb v. Commonwealth, 217 Va. 307, 310, 227 

S.E.2d 737, 740 (1976); Skinner, 212 Va. at 263, 183 S.E.2d at 

728. 

 In determining whether a waiver was voluntary, knowing, and 

intelligent, the court must examine the totality of 

circumstances surrounding the interrogation. See Fare, 442 U.S. 

at 717. The court's task is to determine whether the accused's 

statement "'is the product of an essentially free and 

unconstrained choice . . . or whether the maker's will has been 

overborne and his capacity for self-determination critically 

impaired.'" Roberts, 18 Va. App. at 557, 445 S.E.2d at 711 

(quoting Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d 

371, 381, cert. denied, 469 U.S. 873 (1984)). When a juvenile 

is the subject of interrogation, "'the greatest care must be 

taken to assure that the admission was voluntary, in the sense 

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not only that it was not coerced or suggested, but also that it 

was not the product of ignorance of rights or of adolescent 

fantasy, fright or despair.'" Grogg, 6 Va. App. at 612-13, 371 

S.E.2d at 556 (quoting In re Gault, 387 U.S. 1, 55 (1967)). 

Relevant considerations include an "'evaluation of the 

juvenile's age, experience, education, background and 

intelligence, and into whether he has the capacity to understand 

the warnings given to him, the nature of his Fifth Amendment 

rights and the consequences of waiving those rights.'" Roberts, 

18 Va. App. at 557, 445 S.E.2d at 711 (quoting Fare, 442 U.S. at 

725). The presence of a parent, guardian, independent 

interested adult, or counsel is a factor that weighs in favor of 

finding that a juvenile's waiver of constitutional rights was 

knowing and intelligent. See Grogg, 6 Va. App. at 613, 371 

S.E.2d at 557. The manner in which interrogating officials 

conducted the interview, including the presence of coercion, 

deceit, or trickery, is also a relevant consideration. See

Akers v. Commonwealth, 216 Va. 40, 46, 216 S.E.2d 28, 32 (1975). 

The burden of proving a waiver of constitutional rights rests 

with the government. See Lamb, 217 Va. at 310-11, 227 S.E.2d at 

740. The trial court's finding that a defendant has executed a 

valid waiver will not be reversed if supported by substantial 

and credible evidence. See Terrell v. Commonwealth, 12 Va. App. 

285, 290, 403 S.E.2d 387, 389 (1991); Goodwin v. Commonwealth, 3 

Va. App. 249, 253, 257, 349 S.E.2d 161, 163, 165-66 (1986). 

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 Examining the totality of circumstances in this case, we do 

not find substantial and credible evidence to support the 

conclusion that the defendant's statement was taken in violation 

of the Fifth Amendment. Rather, the evidence supports the 

obverse, showing clearly that the defendant understood his Fifth 

Amendment rights and waived his rights voluntarily, knowingly, 

and intelligently. 

 Defendant was not unfamiliar with his rights under the 

Fifth Amendment when he executed the waiver of those rights and 

gave his statement to the police. When defendant was first 

arrested, he was advised of his rights before police attempted 

to interrogate him. At that time, the defendant did not invoke 

his right to counsel but he exercised his right to remain silent 

and declined to speak with the police. See Roberts, 18 Va. App. 

at 558, 445 S.E.2d at 711 (finding that the defendant's prior 

exercise of his right to remain silent indicated that he was 

familiar with his Fifth Amendment rights). 

 Several months later, after his preliminary hearing, the 

defendant initiated contact with the police by telling his 

mother and sister that he wished to speak with the police about 

the deaths of Wiley, Spencer, and Chark. In compliance with the 

defendant's request, Shipley, his attorney, arranged for a 

meeting with police at the POC. 

Although Shipley later discovered that he could not attend 

the meeting and attempted to have it rescheduled, Shipley's 

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insistence that the defendant not speak to police outside his 

presence did not impair the defendant's ability to validly waive 

his Fifth Amendment rights. See Lamb, 217 Va. at 310, 227 

S.E.2d at 740 ("[I]t is to be remembered [the right to counsel 

during interrogation] is the defendant's right and not the right 

of defendant's counsel, for defendant dwells here on the 

contention [that his attorney] never explicitly consented to 

defendant's waiver of his right to counsel."). Because only the 

defendant could have exercised his Fifth Amendment rights, the 

trial court's finding that Shipley "specifically and 

affirmatively indicated that he desired, intended and expected 

to be present" during the defendant's interrogation is without 

legal import and offers no support for the court's conclusion 

that the defendant's statement was taken in violation of the 

Fifth Amendment. 

Furthermore, the defendant's knowledge of Shipley's desire 

to be present during any interrogation is irrelevant to the 

validity of his waiver of Fifth Amendment rights. Even when 

police intentionally withhold from a defendant information 

regarding counsel's availability or counsel's attempt to 

communicate with the defendant, "such conduct is only relevant 

to the constitutional validity of a waiver [of Fifth Amendment 

rights] if it deprives [the] defendant of knowledge essential" 

to an understanding of the nature of his or her rights and the 

consequences of abandoning them. Moran v. Burbine, 475 U.S. 

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412, 423-24 (1986). In this case, the evidence demonstrates 

that the defendant chose to speak to the police with full 

awareness of his rights and of the consequences of waiver. 

Thus, Shipley's request to reschedule the interrogation had no 

bearing on the defendant's "capacity to comprehend and knowingly 

relinquish" his constitutional rights. Id. at 422. 

Moreover, even were the defendant's knowledge of Shipley's 

desire to reschedule the interrogation relevant to the issue, 

the trial court's finding that the defendant and his relatives 

were not told of Shipley's desire is plainly wrong. See Naulty 

v. Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 

(1986). According to both Jackson and Williams, when they met 

with Shipley at his office to inform him of the defendant's 

request to speak with the police, Shipley stated that he would 

arrange for an interview and, because of his concerns regarding 

the defendant's inability to communicate, wanted to be present 

during the interview. On the day of the interview, Williams and 

Jackson were again reminded that Shipley did not want the 

defendant to speak to police outside of his presence. Williams 

testified that she spoke with Shipley's secretary and Detective 

Newman, who both informed her that Shipley could not attend the 

interview and desired to have it rescheduled. Jackson testified 

that, on the day of the interview, she knew Shipley wanted to 

reschedule and, notwithstanding Shipley's desire to postpone the 

interview, the defendant wanted to speak with police. Thus, it 

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is evident from the record that the defendant waived his right 

to have his attorney present during the police interview after 

he was made aware that his attorney could not be present and 

wished to have the interview postponed. 

The remaining circumstances surrounding the defendant's 

statement also fail to support the conclusion that the 

defendant's will had been overborne and his capacity for 

self-determination critically impaired when he gave his 

statement to police. Indeed, although the trial court correctly 

noted that special precautions should be taken in order to 

ensure a juvenile executes a voluntary, knowing, and intelligent 

waiver of constitutional rights, particularly in light of the 

testimony in this case regarding the defendant's mental 

abilities, the evidence shows that the police, in fact, took 

extra precautions. 

Before commencing the March 9 interview, police contacted 

the defendant's mother and sister, arranging for them to meet 

the defendant at the POC. These family members arrived at the 

POC before the defendant and remained with the defendant 

throughout the interview. Both Williams and Jackson were 

informed that Shipley wanted to reschedule the interview and 

discussed with the defendant whether he should go forward 

notwithstanding the absence of counsel. Williams and Jackson 

were present when the police informed the defendant of his 

rights, when the defendant indicated he understood those rights, 

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and when the defendant expressed his desire to speak with police 

notwithstanding his right not to do so. Both Williams and 

Jackson testified that the defendant desired to speak with 

police on the occasion in question. 

 As to the conditions of the interview, there is no evidence 

that the police obtained the defendant's waiver by coercion, 

deceit, or trickery. On the contrary, the defendant was not 

threatened in any way during the interview and was allowed to 

review the Legal Rights Advice Form without pressure. Moreover, 

the police interrupted the interview so that Williams could 

obtain something for the defendant to eat, during which time the 

defendant was allowed to visit with Jackson and collect his 

thoughts. 

The evidence likewise fails to establish that the defendant 

was mentally incapable of understanding and intelligently 

deciding to waive his constitutional rights. While the evidence 

shows the defendant did not have the capacity to understand his 

options or review written documents quickly, the defendant was 

afforded ample time and assistance to assure his comprehension. 

Furthermore, the defendant indicated that he understood his 

rights both orally, after Detective Newman read the Legal Rights 

Advice Form, and in writing, by filling out the form. The 

defendant reviewed the form with the assistance of Detective 

Newman and his mother, taking a "long time" to read his rights 

and place his initials next to each written articulation of the 

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rights. At the beginning of the defendant's recorded statement, 

the defendant again indicated that he understood his rights, 

particularly the right to have his attorney present during the 

interview. The defendant reiterated that he wished to speak 

with police notwithstanding his attorney's absence. After 

completing the recorded statement, the defendant reviewed the 

document, one page at a time with the assistance of his mother, 

initialing the top and bottom of every page. Whenever Newman 

noticed a discrepancy, the defendant was asked to clarify his 

meaning, and did so. 

 In short, the record fails to show that the defendant did 

not make a voluntary, knowing, and intelligent waiver of his 

Fifth Amendment rights before making the statement at issue and 

fails to reflect substantial and credible evidence in support of 

the trial court's decision. 

 For the foregoing reasons, we reverse the court's 

suppression of the defendant's statement and remand for further 

proceedings consistent with this decision. 

 Reversed and remanded.

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