knowing and intelligent waiver in Virginia

2009In Green v. Commonwealth, 27 Va. App. 646 , 500 S.E.2d 835 (1998), the Court stated: Where a person is Mirandized and gives a knowing and intelligent waiver of his right to remain silent, “such waiver will be presumed to continue in effect throughout subsequent custodial interrogations until the suspect manifests, in some way which would be apparent to a reasonable person, his desire to revoke it.” Washington v. Commonwealth, 228 Va. 535, 548-49 , 323 S.E.2d 577, 586 (1984)... .

2009We now turn to appellant’s argument that his statement to Deputy Ruff should have been suppressed because it was not preceded by Miranda warnings “reasonably contemporaneous with the questioning.” Assuming, without deciding, that Deputy Ruff’s conversation with appellant constituted an “interrogation” for purposes of Miranda, we conclude that no further Miranda warnings were required at that time. “[W]here a person, after receiving Miranda warnings, has once given [] a knowing and intelligent waiver of his constitutional rights, such waiver will be presumed to continue in effect throughout sub

2023A person may waive his rights under Miranda, 384 U.S. at 478-79 , “‘if the waiver is made knowingly and intelligently,’ and the Commonwealth ‘bears the burden of showing a knowing and intelligent waiver.’” Tirado v. Commonwealth, 296 Va. 15 , 27 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 257-58 (2011)). “[W]hether the waiver was made knowingly and intelligently is a question of fact,” and the trial court’s determination on this issue “will not be set aside on appeal unless plainly wrong.” Id. at 27-28 (alteration in original) (quoting Angel, 281 Va. at 258 ). “[A]n accused, . . . havi

2022“After the police have advised an accused of the Miranda rights, the [suspect] may make a knowing and intelligent waiver of those rights and respond to the police interrogation.” McDaniel v. Commonwealth, 30 Va. App. 602, 605 (1999) (en banc) (citing Edwards v. Arizona, 451 U.S. 477, 483-84 (1981)).

2014This Court, however, need not consider these factors, as the Supreme Court of Virginia and the Court of Appeals have held: “Where a defendant has received Miranda warnings and has given a knowing and intelligent waiver of his constitutional rights, the waiver is presumed to continue through subsequent interrogations until he manifests a desire to revoke it.” Frye v. Commonwealth, 231 Va. 370, 378 (1986) (citing Washington v. Commonwealth, 228 Va. 535 , 548 (1985)); see also Harrison v. Commonwealth, 244 Va. 576, 584 (1992); Shell v. Commonwealth, 11 Va. App. 247, 252-53 (1990) (“Virginia is no

2013See, e.g., Shell v. Commonwealth, 11 Va. App. 247, 251 , 397 S.E.2d 673, 675 (1990) (noting that in the Fifth Amendment context, “[i]n order for a confession to be admissible, the Commonwealth bears the burden of proving the defendant voluntarily made a knowing and intelligent waiver of his constitutional privilege against self-incrimination and his right to counsel”).

2014This Court, however, need not consider these factors, as the Supreme Court of Virginia and the Court of Appeals have held: “Where a defendant has received Miranda warnings and has given a knowing and intelligent waiver of his constitutional rights, the waiver is presumed to continue through subsequent interrogations until he manifests a desire to revoke it.” Frye v. Commonwealth, 231 Va. 370, 378 (1986) (citing Washington v. Commonwealth, 228 Va. 535 , 548 (1985)); see also Harrison v. Commonwealth, 244 Va. 576, 584 (1992); Shell v. Commonwealth, 11 Va. App. 247, 252-53 (1990) (“Virginia is no

2010“Absent a knowing and intelligent waiver of the Fifth Amendment right against self-incrimination and the Sixth Amendment right to the assistance of legal counsel, a confession made by a suspect during in-custody interrogation is inadmissible in evidence against him.” Harrison v. Commonwealth, 244 Va. 576, 580 , 423 S.E.2d 160, 162 (1992). “[T]he inquiry whether a waiver of Miranda rights was made knowingly and intelligently is a question of fact, and the trial court’s resolution of that question is entitled on appeal to a presumption of correctness.” Id. at 581 , 423 S.E.2d at 163 . “[The tria

2023A person may waive his rights under Miranda, 384 U.S. at 478-79 , “‘if the waiver is made knowingly and intelligently,’ and the Commonwealth ‘bears the burden of showing a knowing and intelligent waiver.’” Tirado v. Commonwealth, 296 Va. 15 , 27 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 257-58 (2011)). “[W]hether the waiver was made knowingly and intelligently is a question of fact,” and the trial court’s determination on this issue “will not be set aside on appeal unless plainly wrong.” Id. at 27-28 (alteration in original) (quoting Angel, 281 Va. at 258 ). “[A]n accused, . . . havi

2023A defendant may waive his Miranda rights “provided the waiver is made voluntarily, knowingly and intelligently.” Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda, 384 U.S. at 444 ). “[T]he Commonwealth ‘bears the burden of showing a knowing and intelligent waiver.’” Tirado v. Commonwealth, 296 Va. 15 , 27 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 257-58 (2011)). “‘[W]hether the waiver was made knowingly and intelligently is a question of fact,’ and the circuit court’s determination on this issue ‘will not be set aside on appeal unless plainly wrong.’” Id. at 27-28 (alterat

2024However, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Argersinger v. Hamlin, 407 U.S. 25, 37 (1972).

2023However, “absent a knowing and intelligent waiver, no -5- person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Argersinger v. Hamlin, 407 U.S. 25, 37 (1972).

2023A defendant may waive his Miranda rights “provided the waiver is made voluntarily, knowingly and intelligently.” Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda, 384 U.S. at 444 ). “[T]he Commonwealth ‘bears the burden of showing a knowing and intelligent waiver.’” Tirado v. Commonwealth, 296 Va. 15 , 27 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 257-58 (2011)). “‘[W]hether the waiver was made knowingly and intelligently is a question of fact,’ and the circuit court’s determination on this issue ‘will not be set aside on appeal unless plainly wrong.’” Id. at 27-28 (alterat

2023A defendant may waive his Miranda rights “provided the waiver is made voluntarily, knowingly and intelligently.” Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda, 384 U.S. at 444 ). “[T]he Commonwealth ‘bears the burden of showing a knowing and intelligent waiver.’” Tirado v. Commonwealth, 296 Va. 15 , 27 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 257-58 (2011)). “‘[W]hether the waiver was made knowingly and intelligently is a question of fact,’ and the circuit court’s determination on this issue ‘will not be set aside on appeal unless plainly wrong.’” Id. at 27-28 (alterat

2007It is well settled that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented at trial by an attorney.” Lemke v. Commonwealth, 218 Va. 870, 872 , 241 S.E.2d 789, 791 (1978).

2007It is well settled that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented at trial by an attorney.” Lemke v. Commonwealth, 218 Va. 870, 872 , 241 S.E.2d 789, 791 (1978).

2024“To be valid, any such waiver must be the voluntary act of the defendant and must constitute a knowing and intelligent abandonment of a known constitutional right or privilege.” McNair v. Commonwealth, 37 Va. App. 687, 695 (2002) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981)). - 17 - In addition to the constitutional protections regarding waiver of the right to counsel, the General Assembly further prescribed the necessary steps for waiver in the Commonwealth of Virginia.

2023“To be valid, any such waiver must be the voluntary act of the defendant and must constitute a knowing and intelligent abandonment of a known constitutional right or privilege.” McNair, 37 Va. App. at 695 (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981)). “[T]he burden is on the Commonwealth to prove ‘by clear, precise and unequivocal evidence’ that the defendant did actually waive his right to counsel.” Bolden v. Commonwealth, 11 Va. App. 187, 191 (1990) (quoting Lemke v. Commonwealth, 218 Va. 870, 873 (1978)).

2023Resolution of the agency issue “necessarily turns on the degree of the Government’s participation in the private party’s activities.”’” Sabo v. Commonwealth, 38 Va. App. 63, 74 (2002) (quoting Mills v. Commonwealth, 14 Va. App. 459, 463 (1992)).

1997"The Commonwealth bears the burden of proving by a preponderance of the evidence that the accused waived his Miranda rights." Mills v. Commonwealth, 14 Va. App. 459, 468 , 418 S.E.2d 718, 722 (1992) (citing Colorado v. Connelly, 479 U.S. 157, 168 (1986)).

2014See Lewis v. Commonwealth, 2009 Va. App. lexis 357 (2009) (the defendant’s waiver was found to be knowing and intelligent despite his only completing the ninth grade and having been labeled borderline mentally retarded); Hickman v. Commonwealth, 1995 Va. App. lexis 555 (1995) (waiver by an eighth grade student with a recorded IQ of 67 found to be knowing and intelligent); see also Goodwin v. Commonwealth, 3 Va. App. 249 (1986) (waiver found to be knowing and intelligent despite the defendant’s having a previously recorded IQ of 56 and having been highly intoxicated approximately three hours be

1990Miranda v. Arizona, 384 U.S. 436, 475 (1966); Smith v. Commonwealth, 7 Va. App. 310, 314, 373 S.E.2d 340, 342 (1988); Goodwin v. Commonwealth, 3 Va. App. 249, 252 , 349 S.E.2d 161, 163 (1986).

2013In addition, “error involving the Sixth Amendment’s Confrontation Clause is subject to constitutional harmless error analysis.” Crawford v. Commonwealth, 281 Va. 84, 101 , 704 S.E.2d 107, 117 (2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)); see Van Arsdall, 475 U.S. at 684 (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”). “[I]n conducting a constitutional harmless -6- error analysis, ‘[t]he question is whether the

2013In addition, “error involving the Sixth Amendment’s Confrontation Clause is subject to constitutional harmless error analysis.” Crawford v. Commonwealth, 281 Va. 84, 101 , 704 S.E.2d 107, 117 (2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)); see Van Arsdall, 475 U.S. at 684 (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”). “[I]n conducting a constitutional harmless -6- error analysis, ‘[t]he question is whether the

2013In addition, “error involving the Sixth Amendment’s Confrontation Clause is subject to constitutional harmless error analysis.” Crawford v. Commonwealth, 281 Va. 84, 101 , 704 S.E.2d 107, 117 (2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)); see Van Arsdall, 475 U.S. at 684 (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”). “[I]n conducting a constitutional harmless -6- error analysis, ‘[t]he question is whether the

2013In addition, “error involving the Sixth Amendment’s Confrontation Clause is subject to constitutional harmless error analysis.” Crawford v. Commonwealth, 281 Va. 84, 101 , 704 S.E.2d 107, 117 (2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)); see Van Arsdall, 475 U.S. at 684 (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”). “[I]n conducting a constitutional harmless -6- error analysis, ‘[t]he question is whether the

2000See North Carolina v. Butler, 441 U.S. 369, 373-75 , 99 S.Ct. 1755, 1757-58 , 60 L.Ed.2d 286 (1979).

2000See North Carolina v. Butler, 441 U.S. 369, 373-75 (1979); Shackleford, 32 Va. App. at 322 , 528 S.E.2d at 131 .

2014This Court, however, need not consider these factors, as the Supreme Court of Virginia and the Court of Appeals have held: “Where a defendant has received Miranda warnings and has given a knowing and intelligent waiver of his constitutional rights, the waiver is presumed to continue through subsequent interrogations until he manifests a desire to revoke it.” Frye v. Commonwealth, 231 Va. 370, 378 (1986) (citing Washington v. Commonwealth, 228 Va. 535 , 548 (1985)); see also Harrison v. Commonwealth, 244 Va. 576, 584 (1992); Shell v. Commonwealth, 11 Va. App. 247, 252-53 (1990) (“Virginia is no

2009In Green v. Commonwealth, 27 Va. App. 646 , 500 S.E.2d 835 (1998), the Court stated: Where a person is Mirandized and gives a knowing and intelligent waiver of his right to remain silent, “such waiver will be presumed to continue in effect throughout subsequent custodial interrogations until the suspect manifests, in some way which would be apparent to a reasonable person, his desire to revoke it.” Washington v. Commonwealth, 228 Va. 535, 548-49 , 323 S.E.2d 577, 586 (1984)... .

2024“The knowing and intelligent requirement of a Miranda waiver focuses on whether the defendant comprehended the plain meaning of the required warnings.” Id. at 29 . “[W]hether [the defendant] fully appreciates the beneficial impact on his defense that silence may have—whether he fully understands the tactical advantage, in our system of justice, of not speaking—does not affect the validity of his waiver.” Id. (alterations in original) (quoting United States v. Yunis, 859 F.2d 953, 964-65 (D.C.

2018The knowing and intelligent requirement of a Miranda waiver focuses on whether the defendant comprehended the plain meaning of the required warnings. *317 United States v. Yunis , 859 F.2d 953 , 964-65 (D.C.

2014This Court, however, need not consider these factors, as the Supreme Court of Virginia and the Court of Appeals have held: “Where a defendant has received Miranda warnings and has given a knowing and intelligent waiver of his constitutional rights, the waiver is presumed to continue through subsequent interrogations until he manifests a desire to revoke it.” Frye v. Commonwealth, 231 Va. 370, 378 (1986) (citing Washington v. Commonwealth, 228 Va. 535 , 548 (1985)); see also Harrison v. Commonwealth, 244 Va. 576, 584 (1992); Shell v. Commonwealth, 11 Va. App. 247, 252-53 (1990) (“Virginia is no

1990The Supreme Court of Virginia held that “[wjhere a defendant has re *253 ceived Miranda warnings and has given a knowing and intelligent waiver of his constitutional rights, the waiver is presumed to continue through subsequent interrogations until he manifests a desire to revoke it.” 231 Va. 370, 378 , 345 S.E.2d 267, 274 (1986)(citing Washington v. Commonwealth, 228 Va. 535, 548 , 323 S.E.2d 577, 586 (1984), cert. denied, 471 U.S. 1111 (1985)).

2026See, e.g., Knox, 52 Va. App. at 376-79 (accused asking the police if they could “just talk later”).

2023Resolution of the agency issue “necessarily turns on the degree of the Government’s participation in the private party’s activities.”’” Sabo v. Commonwealth, 38 Va. App. 63, 74 (2002) (quoting Mills v. Commonwealth, 14 Va. App. 459, 463 (1992)).

2023A defendant may waive his Miranda rights “provided the waiver is made voluntarily, knowingly and intelligently.” Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda, 384 U.S. at 444 ). “[T]he Commonwealth ‘bears the burden of showing a knowing and intelligent waiver.’” Tirado v. Commonwealth, 296 Va. 15 , 27 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 257-58 (2011)). “‘[W]hether the waiver was made knowingly and intelligently is a question of fact,’ and the circuit court’s determination on this issue ‘will not be set aside on appeal unless plainly wrong.’” Id. at 27-28 (alterat

2023“To be valid, any such waiver must be the voluntary act of the defendant and must constitute a knowing and intelligent abandonment of a known constitutional right or privilege.” McNair, 37 Va. App. at 695 (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981)). “[T]he burden is on the Commonwealth to prove ‘by clear, precise and unequivocal evidence’ that the defendant did actually waive his right to counsel.” Bolden v. Commonwealth, 11 Va. App. 187, 191 (1990) (quoting Lemke v. Commonwealth, 218 Va. 870, 873 (1978)).

2022“After the police have advised an accused of the Miranda rights, the [suspect] may make a knowing and intelligent waiver of those rights and respond to the police interrogation.” McDaniel v. Commonwealth, 30 Va. App. 602, 605 (1999) (en banc) (citing Edwards v. Arizona, 451 U.S. 477, 483-84 (1981)).

2022But if the suspect “expresses a desire to have counsel present during a custodial interrogation, law enforcement officers must cease their interrogation until counsel is present or the [suspect] initiates further communication with the authorities.” Stevens, 283 Va. at 302 (citations omitted).7 “However, the invocation of the right to counsel must be clear, unambiguous, and unequivocal.” Zektaw v. Commonwealth, 278 Va. 127, 136 (2009).