Devlon Crew-Hamilton, Sometimes Known as Devlon Crew Hamilton v. Commonwealth of Virginia
This text of Devlon Crew-Hamilton, Sometimes Known as Devlon Crew Hamilton v. Commonwealth of Virginia (Devlon Crew-Hamilton, Sometimes Known as Devlon Crew Hamilton v. Commonwealth of Virginia) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Causey and White UNPUBLISHED
Argued at Alexandria, Virginia
DEVLON CREW-HAMILTON, SOMETIMES KNOWN AS DEVLON CREW HAMILTON MEMORANDUM OPINION* BY v. Record No. 0770-24-4 JUDGE KIMBERLEY SLAYTON WHITE JANUARY 6, 2026 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Carroll A. Weimer, Jr., Judge
Erin T. Ford for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A Prince William County jury convicted Devlon Crew Hamilton1 of second-degree
murder and use of a firearm in the commission of murder. Crew Hamilton then later entered a
conditional guilty plea to possession of a firearm by a non-violent felon, and his convictions
were consolidated for sentencing. Crew Hamilton contends that the trial court erred by denying
his pre-trial motions to suppress statements he made to the police. For the following reasons, we
find no error in the trial court’s rulings and affirm.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Appellant is referred to in the trial record as both Devlon Crew Hamilton and Devlon Crew-Hamilton. We refer to him as the name he used in his notice of appeal filed with this Court. BACKGROUND2
On May 15, 2022, Prince William County Police Officer Matthew Lanman responded to
a shooting on Tavern Way in Woodbridge. Upon arrival, Officer Lanman observed a deceased
male, later identified as Miles Tracey Hall3 “laying in a pool of blood” in the parking lot. Hall
was bleeding out of his ears and nose and appeared to be suffering from a gunshot wound to his
face. Officer Lanman checked Hall’s pulse and then retrieved a trauma kit and started CPR.
Medics soon arrived on scene, but by that time Hall no longer had a pulse. He was pronounced
dead at the scene.
Assistant Chief Medical Examiner Carmen Coles performed Hall’s autopsy. Dr. Coles
confirmed that Hall died from a single gunshot wound to the head. The bullet entered through
the “lower outer area” of Hall’s left eye, fractured his cheekbone, traveled through his brain, and
exited “out the back of the head.” Dr. Coles did not find any soot or gunpowder stippling around
the entrance wound to suggest that the gun was fired at close range.
Crew Hamilton became a suspect after law enforcement learned that he had previously
dated Hall’s daughter, Ciera, who had passed away in a car accident approximately two weeks
before the murder. Hall had created a Cash App account to raise funds for Ciera’s children and
to help with funeral expenses. However, Crew Hamilton argued with Hall over the account’s
funds because he believed that Hall had kept the money for himself.
Prince William County Police Detective Andres Sanz-Guerrero interviewed Crew
Hamilton on May 27, 2022, in Washington, D.C. Detective Sanz-Guerrero introduced himself to
2 Under the applicable standard of review, this Court views the evidence in the light most favorable to the Commonwealth, as the prevailing party below. See, e.g., Hill v. Commonwealth, 297 Va. 804, 808 (2019); Otey v. Commonwealth, 71 Va. App. 792, 795 (2020). 3 Hall’s wife testified at trial that he also went by the names “Tracey, Tree or Treetop.” -2- Crew Hamilton and explained that he intended to record their interview before advising him of
his Miranda4 rights from a police department-issued Miranda card. The card provided:
You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to consult with a lawyer before answering any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be provided for you, free of cost if you want one. Do you understand your rights as I have explained them?
After Detective Sanz-Guerrero read the card aloud, Crew Hamilton responded that he
understood. Detective Sanz-Guerrero told Crew Hamilton that he was there to talk about the
homicide and events leading up to it.5
Prince William County Police Detectives Israel Perla and Daniel Sekely interviewed
Crew Hamilton in Virginia a few days later, on June 1, 2022. Before questioning, the detectives
provided Crew Hamilton a bottle of water and allowed him to use the restroom. At the time of
the interview, Crew Hamilton was 31 years old and told the detectives that he was on probation
in Las Vegas and had spent time in jails in Arlington and Washington, D.C.
Detective Perla read Crew Hamilton his Miranda rights from a card nearly identical to
the one Detective Sanz-Guerrero used on May 27. At the end of the advisement, however, he
added, “Are you willing to talk with detectives without consulting a lawyer or having a lawyer
present with you?” While Detective Perla read the advisement card, Crew Hamilton “was across
the table looking at [Detective Perla] and acknowledging the questions.” After Detective Perla
asked Crew Hamilton if he understood his rights, Crew Hamilton said that he did and added that
he was willing to answer questions without talking to an attorney or having an attorney present.
4 Miranda v. Arizona, 384 U.S. 436 (1966). 5 The record does not contain the recording of Detective Sanz-Guerrero’s conversation with Crew Hamilton. Detective Sanz-Guerrero testified at the suppression hearing about reading Crew Hamilton his rights but did not testify to any statements Crew Hamilton made about the incident. Detective Sanz-Guerrero did not testify at trial. -3- Approximately twenty minutes after Detective Perla advised him of his Miranda rights,
Crew Hamilton asked, “So my lawyer is going to be at the little magistrate place, huh?”
Detective Sekely asked Crew Hamilton, “Do you have one already?,” to which Crew Hamilton
replied, “No.” Detective Sekely clarified, “No, so you can retain your own one if you want to
pay for it, or you’ll be appointed one, but that’s not until your arraignment, which will probably
be tomorrow morning.” When Crew-Hamilton said, “They sayin’ today,” Detective Sekely
clarified that arraignments were at 8:30 in the morning and that Crew Hamilton would see a
magistrate that night for bond. Crew Hamilton then told detectives that he lived in Washington,
D.C. and worked at a “daycare for dogs,” where he had been employed for about a year.
Detective Perla asked if Crew Hamilton had any questions for them. Crew Hamilton
said, “I’m just ready to go see the magistrate, man, so I can go lay back down in the cell. Holler
at this lawyer tomorrow. Take it from there.” Detective Perla explained how he and Detective
Sekely became involved in the investigation and developed Crew Hamilton as a suspect.
Detective Perla asked Crew Hamilton whether he knew Ciera and her baby, and Crew Hamilton
confirmed that he did.
Crew Hamilton told the detectives that Ciera was his “girl” and that they had been
together for “a couple months,” during which Crew Hamilton had stepped into a father role to
Ciera’s three-month old daughter because the biological father was not involved. Crew
Hamilton said that he learned about Ciera’s death on Facebook “like a day after” it happened.
He said that he did not learn about Ciera’s death from her family members because they did not
have his contact information. He claimed that he had gotten along very well with Ciera’s family
and her father and that he had never had any issues with them. Moreover, Crew Hamilton did
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Causey and White UNPUBLISHED
Argued at Alexandria, Virginia
DEVLON CREW-HAMILTON, SOMETIMES KNOWN AS DEVLON CREW HAMILTON MEMORANDUM OPINION* BY v. Record No. 0770-24-4 JUDGE KIMBERLEY SLAYTON WHITE JANUARY 6, 2026 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Carroll A. Weimer, Jr., Judge
Erin T. Ford for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A Prince William County jury convicted Devlon Crew Hamilton1 of second-degree
murder and use of a firearm in the commission of murder. Crew Hamilton then later entered a
conditional guilty plea to possession of a firearm by a non-violent felon, and his convictions
were consolidated for sentencing. Crew Hamilton contends that the trial court erred by denying
his pre-trial motions to suppress statements he made to the police. For the following reasons, we
find no error in the trial court’s rulings and affirm.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Appellant is referred to in the trial record as both Devlon Crew Hamilton and Devlon Crew-Hamilton. We refer to him as the name he used in his notice of appeal filed with this Court. BACKGROUND2
On May 15, 2022, Prince William County Police Officer Matthew Lanman responded to
a shooting on Tavern Way in Woodbridge. Upon arrival, Officer Lanman observed a deceased
male, later identified as Miles Tracey Hall3 “laying in a pool of blood” in the parking lot. Hall
was bleeding out of his ears and nose and appeared to be suffering from a gunshot wound to his
face. Officer Lanman checked Hall’s pulse and then retrieved a trauma kit and started CPR.
Medics soon arrived on scene, but by that time Hall no longer had a pulse. He was pronounced
dead at the scene.
Assistant Chief Medical Examiner Carmen Coles performed Hall’s autopsy. Dr. Coles
confirmed that Hall died from a single gunshot wound to the head. The bullet entered through
the “lower outer area” of Hall’s left eye, fractured his cheekbone, traveled through his brain, and
exited “out the back of the head.” Dr. Coles did not find any soot or gunpowder stippling around
the entrance wound to suggest that the gun was fired at close range.
Crew Hamilton became a suspect after law enforcement learned that he had previously
dated Hall’s daughter, Ciera, who had passed away in a car accident approximately two weeks
before the murder. Hall had created a Cash App account to raise funds for Ciera’s children and
to help with funeral expenses. However, Crew Hamilton argued with Hall over the account’s
funds because he believed that Hall had kept the money for himself.
Prince William County Police Detective Andres Sanz-Guerrero interviewed Crew
Hamilton on May 27, 2022, in Washington, D.C. Detective Sanz-Guerrero introduced himself to
2 Under the applicable standard of review, this Court views the evidence in the light most favorable to the Commonwealth, as the prevailing party below. See, e.g., Hill v. Commonwealth, 297 Va. 804, 808 (2019); Otey v. Commonwealth, 71 Va. App. 792, 795 (2020). 3 Hall’s wife testified at trial that he also went by the names “Tracey, Tree or Treetop.” -2- Crew Hamilton and explained that he intended to record their interview before advising him of
his Miranda4 rights from a police department-issued Miranda card. The card provided:
You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to consult with a lawyer before answering any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be provided for you, free of cost if you want one. Do you understand your rights as I have explained them?
After Detective Sanz-Guerrero read the card aloud, Crew Hamilton responded that he
understood. Detective Sanz-Guerrero told Crew Hamilton that he was there to talk about the
homicide and events leading up to it.5
Prince William County Police Detectives Israel Perla and Daniel Sekely interviewed
Crew Hamilton in Virginia a few days later, on June 1, 2022. Before questioning, the detectives
provided Crew Hamilton a bottle of water and allowed him to use the restroom. At the time of
the interview, Crew Hamilton was 31 years old and told the detectives that he was on probation
in Las Vegas and had spent time in jails in Arlington and Washington, D.C.
Detective Perla read Crew Hamilton his Miranda rights from a card nearly identical to
the one Detective Sanz-Guerrero used on May 27. At the end of the advisement, however, he
added, “Are you willing to talk with detectives without consulting a lawyer or having a lawyer
present with you?” While Detective Perla read the advisement card, Crew Hamilton “was across
the table looking at [Detective Perla] and acknowledging the questions.” After Detective Perla
asked Crew Hamilton if he understood his rights, Crew Hamilton said that he did and added that
he was willing to answer questions without talking to an attorney or having an attorney present.
4 Miranda v. Arizona, 384 U.S. 436 (1966). 5 The record does not contain the recording of Detective Sanz-Guerrero’s conversation with Crew Hamilton. Detective Sanz-Guerrero testified at the suppression hearing about reading Crew Hamilton his rights but did not testify to any statements Crew Hamilton made about the incident. Detective Sanz-Guerrero did not testify at trial. -3- Approximately twenty minutes after Detective Perla advised him of his Miranda rights,
Crew Hamilton asked, “So my lawyer is going to be at the little magistrate place, huh?”
Detective Sekely asked Crew Hamilton, “Do you have one already?,” to which Crew Hamilton
replied, “No.” Detective Sekely clarified, “No, so you can retain your own one if you want to
pay for it, or you’ll be appointed one, but that’s not until your arraignment, which will probably
be tomorrow morning.” When Crew-Hamilton said, “They sayin’ today,” Detective Sekely
clarified that arraignments were at 8:30 in the morning and that Crew Hamilton would see a
magistrate that night for bond. Crew Hamilton then told detectives that he lived in Washington,
D.C. and worked at a “daycare for dogs,” where he had been employed for about a year.
Detective Perla asked if Crew Hamilton had any questions for them. Crew Hamilton
said, “I’m just ready to go see the magistrate, man, so I can go lay back down in the cell. Holler
at this lawyer tomorrow. Take it from there.” Detective Perla explained how he and Detective
Sekely became involved in the investigation and developed Crew Hamilton as a suspect.
Detective Perla asked Crew Hamilton whether he knew Ciera and her baby, and Crew Hamilton
confirmed that he did.
Crew Hamilton told the detectives that Ciera was his “girl” and that they had been
together for “a couple months,” during which Crew Hamilton had stepped into a father role to
Ciera’s three-month old daughter because the biological father was not involved. Crew
Hamilton said that he learned about Ciera’s death on Facebook “like a day after” it happened.
He said that he did not learn about Ciera’s death from her family members because they did not
have his contact information. He claimed that he had gotten along very well with Ciera’s family
and her father and that he had never had any issues with them. Moreover, Crew Hamilton did
not know Ciera’s father’s real name but knew him as “Tree” or “Treetop” and had only known
him for about a month because Hall had just been released from prison.
-4- Detective Sekely asked Crew Hamilton about the fundraisers people had for Ciera. He
acknowledged that Hall had set up a Cash App account to raise money. Crew Hamilton shared
the account with others, including his colleagues, to ask for contributions to help with funeral
arrangements. He learned about the Cash App account during a phone call with Hall “a couple
days” after Ciera’s death. During the call, Hall was “fucked up” and “drinking and shit,” but
Crew Hamilton assured him that they would get through it. Hall then asked him to send money
to the Cash App account to help with cremation and other expenses. Crew Hamilton said that he
did not send any money to the Cash App account, but his colleagues contributed. He denied
knowing how much money had been sent to the Cash App account.
When asked specifically about Hall, Crew Hamilton said they never had any issues and
that Hall was “alright.” He explained that Hall had been living with him and Ciera. Crew
Hamilton moved out of the apartment about a week before Ciera’s death. He claimed that he
learned of Hall’s passing when he saw a story on the news. When asked if he remembered what
he was doing the day Hall died, Crew Hamilton said that he was at home at his sister’s house
“chillin.”
After Crew Hamilton had been in the interview room for about an hour, he asked to use
the restroom again. The investigators allowed him to do so, and Detective Perla followed him to
the restroom. On the way out of the room, Crew Hamilton mentioned that he thought he would
see a magistrate but was answering questions. After he returned from the bathroom and
answered a few more questions, Crew Hamilton stated, “Alright, I’m ready to go see this
magistrate now.” Detective Sekely replied, “I get you man, I get you, we’re getting there,” and
Detective Perla noted that it was “a slow process.”
Detective Sekely then asked Crew Hamilton if he remembered talking to Hall any time
around the time he died, including the day before or the day of his death. Crew Hamilton denied
-5- that they had had contact during that time. He said that the last time they spoke was the phone
conversation in which Hall verified that Ciera had died and asked for contributions to the Cash
App account. Detective Perla told Crew Hamilton that they knew he was in Woodbridge the day
Hall was murdered, and Detective Sekely asked if Crew Hamilton had met with Ciera’s family
that day to talk about the baby. Crew Hamilton agreed and said the conversation was about the
baby and also about sharing Ciera’s ashes.
Detective Perla told Crew Hamilton that some of his information aligned with what their
investigation revealed, but other aspects did not. Detective Perla added that they knew Crew
Hamilton came to visit Ciera’s family and “something happened inside.” Crew Hamilton denied
that anything occurred. Detective Sekely explained to Crew Hamilton that video surveillance
captured him and his cousin the night of the murder and described Crew Hamilton’s clothing that
night as a white t-shirt and gray sweatpants. Crew Hamilton said that he was not wearing gray
sweatpants but was wearing black pants. Detective Sekely also told Crew Hamilton that his cell
phone records placed him at the scene of the murder at the time of the murder.
Detective Sekely explained to Crew Hamilton that they were not trying to trick him,
rather they wanted to get to “the bottom of the story.” The detectives wanted his version of
events because they knew that he met with Hall that night, had “pulled the trigger,” and what
they did not know was “why.” Detective Sekely further noted that once the conversation ended
and Crew Hamilton went before the magistrate, Crew Hamilton’s opportunity to “tell [his] side
of the story” would end because his lawyer would likely not let him testify at a murder trial given
the risks of cross-examination. Detective Sekely said that if there was any part of his story that
they needed to know, Crew Hamilton needed to tell them, or they would be left with the
information they had from their investigation. Nevertheless, Crew Hamilton continued to deny
involvement in the murder.
-6- Crew Hamilton explained that people were upset believing that Hall was taking the
money from the Cash App account. Detective Sekely told Crew Hamilton that he did not think
“there was a person in the world that wouldn’t understand being angry with Treetop for what he
did” and expressed that what Hall had done in taking the money meant for Ciera’s funeral
expenses was “a new level of fucked up.”
After about a minute of silence, Crew Hamilton stated, “I’m ready to go, to be honest
with you. I’m tired of these cuffs, I’m tired . . . I want to see this magistrate person.” Detective
Perla replied, “Let me ask you this, alright? What conversation happened here between you and
Treetop? Give me a little bit on what transpired there.” Crew Hamilton paused and then said, “I
don’t know.” He then said that he was never “hot-headed” and repeatedly stated that he did not
know what happened to Hall.
After additional questioning and moments of silence, Crew Hamilton told the detectives,
“I’m just ready to go.” Detective Sekely told Crew Hamilton he knew that it was “hard to see a
path forward from this point.” However, the path forward began with them because they were
his voice “when it comes to court” since he had never seen a murder defendant testify at trial.
Detective Sekely told Crew Hamilton, “This is your only chance” and emphasized that he cared
more about getting it right than “throwing somebody in jail.”
Detective Perla asked if Crew Hamilton “mean[t] to do it” and Crew Hamilton said that
he did not pull the trigger. He continued to deny that he knew anything about what happened
that night. Crew Hamilton admitted that he drank “a whole bottle of Hennessey” the day Hall
was murdered. Eventually, Detective Sekely told Crew Hamilton there was a difference between
not knowing and not wanting to tell them, and “what you mean to say is you don’t want to talk
about it, which is, that’s fine if that’s what you choose to do.” Crew Hamilton did not respond.
Just over ten minutes later, Crew Hamilton said, “I’m just ready to go see the magistrate, and lay
-7- down in my cell.” Detective Perla replied, “So you don’t want us to give an answer to her mom?
You don’t want her mom to have closure?” Crew Hamilton did not respond.
The detectives continued speaking with Crew Hamilton, who largely sat and listened
without responding. At one point, Detective Sekely told Crew Hamilton, “If the option that
you’re leaning towards is to not talk anymore and say take me to the magistrate, and we go
forward with what we have, that’s your decision. I think our case is very strong.” Crew
Hamilton did not respond or request to be taken to the magistrate. A few minutes later, Crew
Hamilton told the detectives to take him to his cell, a request he reiterated a few seconds later.
Detective Perla asked, “You don’t want to do it for her, man, one last thing?”
Detective Perla asked Crew Hamilton if he felt “sorry” and Crew Hamilton said that he
was sorry “that happened to” Hall, but that he could not change the past. Crew Hamilton then
said that he did not know why Hall stole the money, did not know why Hall died, and knew
nothing about the situation. Later, Crew Hamilton said, “I need a cigarette for this shit” and then
he and Detective Sekely shook hands. The detective then told Crew Hamilton that he would help
him, but he needed to hear what happened from Crew Hamilton. Crew Hamilton said, “Will you
buy me a cigarette first and then I’ll say it?” Detective Sekely agreed and left the interview
room. He then asked Detective Perla, “So how does this go? I tell y’all what happened, and I
still goin’ to trial?” Detective Perla replied, “It may get to that point. I can’t predict the future,
we’re just dealing with the now.” Detective Perla explained the next steps in the court process.
When Detective Sekely returned, all three men exited the interview room so that Crew
Hamilton could smoke. After they returned, Crew Hamilton explained that he had confronted
Hall about stealing Ciera’s money, and Hall responded, “I paid for everything.” Crew Hamilton
said that he told Hall that’s not what he heard, and then his cousin shot Hall. Detectives Perla
and Sekely told Crew Hamilton that his story did not match what they saw on video cameras
-8- from neighborhood homes on the night of the murder, and Crew Hamilton finally admitted that
he shot Hall from the passenger seat of his cousin’s car. Crew Hamilton said that the gun he
used to shoot Hall belonged to his cousin.
Crew Hamilton told the detectives, “It feels kind of good to talk about it though.” Crew
Hamilton said he never wanted Hall to get hurt. He explained that killing Hall was not the plan
and that he wanted to understand why Hall would take Ciera’s money, which was causing stress
for her mother and sister. Crew Hamilton further explained that all he wanted was an honest
answer from Hall about the money, but Hall was “talking that stupid ass shit to me.” He then
admitted that he shot Hall in the front of his head, but said that he “tried to shoot up, like past
him” just to scare Hall. He also agreed that he should have stayed at the scene.
Motion to suppress
Before trial, Crew Hamilton moved to suppress the statements he made to Detectives
Perla and Sekely. His motion alleged that Crew Hamilton’s waiver of his rights was not
knowing, intelligent, or voluntary due to “defects” in Detective Perla’s recitation of his Miranda
rights. The motion also asserted that Crew Hamilton did not understand his right to counsel and
that the detectives did not acknowledge his “request to terminate the interview.” Crew Hamilton
later filed a second motion to suppress that raised the same legal issues, but added information
from a psychologist, Dr. Sharon Kelley, regarding Crew Hamilton’s reduced mental capacity and
inability to understand his rights. The Commonwealth filed written responses objecting to the
motions, and the matter was scheduled on the court’s docket for a suppression hearing.
Before the hearing, the Commonwealth submitted a copy of the video recording of Crew
Hamilton’s police interview, which the trial court reviewed in advance. At the hearing, the
Commonwealth called as its first witness Detective Sanz-Guerrero, who testified about his
interaction with Crew Hamilton in Washington D.C. Detective Sanz-Guerrero read from the
-9- card he had used to advise Crew Hamilton of his rights that day and testified that the speed at
which he read the card for the trial court was “[a]pproximately” the same speed at which he read
the card to Crew Hamilton. The detective confirmed that Crew Hamilton said he understood his
rights.
Detectives Perla and Sekely also both testified about their interview with Crew Hamilton.
Detective Perla described the tone of the interview as “pretty calm, surprisingly calm. Normal
adult conversation, non-confrontational, voices not being raised on either part. It was a very
calm interview.” Detective Perla said that during the interview, Crew Hamilton “would get quiet
at times” but that he did not “specifically ask[] to stop talking.” Detective Perla explained that
when a suspect grows silent during the discussion, his response may differ according to the
circumstances of the interview. He stated, “[s]ometimes you sit there and just sit in silence with
the person . . . or sometimes you continue questioning.” Detective Sekely likewise testified that
the interview was “calm and cordial” and confirmed that Crew Hamilton never told them he
wanted to “cease the interview.”
Detective Sekely stated that during moments of silence he also remained silent as an
“interview tactic” because “silence is awkward, and people tend to want to fill silence with their
own voice if no one else is talking. So it gives somebody the chance to start speaking again.”
Both detectives testified that Crew Hamilton never said he wanted to speak to a lawyer before
continuing to speak to them, and both detectives confirmed that Crew Hamilton took bathroom
and cigarette breaks throughout the interview. The detectives also “provided [Crew Hamilton]
water and some snacks.”
During cross-examination, Detective Perla agreed that Crew Hamilton asked to see the
magistrate multiple times over the course of the interview, but that Detective Perla did not
terminate the interview at those times. When the prosecutor asked Detective Perla in redirect
- 10 - why he did not take Crew Hamilton to the magistrate upon request, Detective Perla explained,
“Because the interview was ongoing, and we were eventually going to take him to the magistrate
after we were completed with the interview.” Detective Sekely also confirmed that Crew
Hamilton made several requests to see the magistrate or to “go to a cell,” but Detective Sekely
did not take Crew Hamilton to the magistrate until the interview ended.
Dr. Kelley testified on behalf of Crew Hamilton as an expert in clinical forensic
psychology. Dr. Kelley met with Crew Hamilton in the jail to perform a clinical evaluation.
Dr. Kelley administered the Wechsler Adult Intelligence Scale,6 reviewed Crew Hamilton’s
available mental health records, which included the results from IQ testing performed on Crew
Hamilton when he was a child, and she spoke with his grandfather. Dr. Kelley testified that
Crew Hamilton’s overall score of 64 on the Wechsler Adult Intelligence Scale “place[d] him in
the first percentile” and was “very consistent” with his childhood IQ score.
Dr. Kelley then went on to describe Crew Hamilton’s specific scores on subcomponents
of the test, including processing speed and verbal comprehension. Based on Crew Hamilton’s
scores, Dr. Kelley testified that he was in the “borderline intellectual functioning range” and
explained that “[a]n IQ score of 64 is well within the range of what we would think of for
individuals with intellectual disability.”
Dr. Kelley observed, however, that “[a] formal diagnosis of an intellectual disability
requires some other criteria that we don’t think Mr. Crew Hamilton meets. That main other
criterion is adaptive functioning,” which Dr. Kelley explained was “kind of how well he does
managing relationships, managing things like transportation and money.” Dr. Kelley said that “if
6 Dr. Kelley testified that the Wechsler Adult Intelligence Scale is “essentially the gold standard for IQ testing in the field” of psychology. - 11 - somebody has basic skills in those areas, they wouldn’t meet criteria for intellectual disability
regardless of what their IQ score is.”
Dr. Kelley testified that during her second meeting with Crew Hamilton, she
administered additional testing in “word reading” and “sentence comprehension” that she
thought was the most relevant to his ability to understand Miranda warnings. Crew Hamilton’s
reading result indicated that he was performing at a fourth-grade level and his sentence
comprehension result indicated a seventh-grade level.
Dr. Kelley also performed “Miranda rights comprehension instruments testing” and
explained how such testing was developed and how it was administered. The first component of
the testing was “a paraphrasing measure,” in which Dr. Kelley read each statement from the
Miranda warnings out loud, and after each one, asked Crew Hamilton to paraphrase the right that
he had just heard. Dr. Kelley could not score Crew Hamilton on this section of the test because
Crew Hamilton “didn’t do that task. He didn’t paraphrase the rights back to [her] despite
multiple efforts to kind of clarify and help him understand what [they] were asking him to do.”
Dr. Kelley explained that the statements Crew Hamilton provided “were more his kind of general
thoughts and reflections about police and being interrogated, but not, you know, literally
paraphrasing what those statements were.”
The second portion of the Miranda comprehension analysis was a test Dr. Kelley
described as “a recognition measure” which involved “taking the rights one at a time and now
presenting the rights with a series of three specific statements with each right.” For each of the
statements, the evaluator asked the person, “[D]oes this statement mean the same thing as the
right you’re seeing here or the right to remain silent, for example, or does this statement mean
something different[?]” Crew Hamilton scored “a bit lower than the average score of other
adults in the legal system generally who have average IQ’s” and “a bit lower than adults in the
- 12 - legal system who have a similar IQ” to him. However, Crew Hamilton “got at least one
recognition item correct for each of the rights, but he . . . made several mistakes . . . .”
Dr. Kelley opined that Crew Hamilton “did not understand that the right to remain silent
mean[t] the same thing as you don’t have to say anything about what you did” and said that Crew
Hamilton “also thought that if you won’t talk to the police, that will be used against you in court
has the same meaning as anything you say can be used against you in court.” However,
Dr. Kelley also stated that Crew Hamilton “was able to correctly say” that “anything you say can
be used against you in court and what you say might be used to prove you are guilty, have the
same meaning.” Dr. Kelley therefore concluded that Crew Hamilton was “correctly classifying
some of the statements within the same right” even though he was “also incorrectly classifying
some of the statements” as well.
The third component of the testing was a test that measured “an examinee’s appreciation
of the nature of the interrogation,” including “that the police are looking for evidence against
somebody.” The test also assessed the examinee’s “appreciation of the right to counsel” and “the
nature of the right to remain silent.” Crew Hamilton did “well” on that test, scoring
“twenty-eight out of thirty possible points on that particular subtest.”
The final component was “a basic vocabulary test that just asks individuals to define
relevant words that are common in Miranda rights.” Crew Hamilton “was able to define some of
[the words] without an issue, but he definitely struggled on other words.” Crew Hamilton scored
“slightly lower than most folks in the justice system with average IQ’s and slightly lower
compared to people with his IQ range or with his verbal IQ range specifically.” Crew Hamilton
“struggled with words like consult and attorney and questioning and the phrase ‘used against.’”
However, while Dr. Kelley testified Crew Hamilton “had a lot of trouble with right, just defining
- 13 - what a right is generally,” she also stated, “The right to remain silent is something that he
recognizes in some forms but not other forms.”
Dr. Kelley opined that, based on all of the testing, Crew Hamilton had “vulnerabilities in
his ability to understand what a right is generally just as a concept.” With respect to the right to
remain silent and the advisement that anything he said could be used against him, Dr. Kelley said
that Crew Hamilton’s “understanding is there, it’s present, it’s very basic, but it’s not very well
formed.” When asked if Crew Hamilton’s “difficulties . . . with vocabulary, verbal reasoning,
[and] sustained attention” “combined with the pace of the administration of the Miranda
warning, as well as his reading level” would “potentially cause a mismatch between his abilities
to process and respond,” Dr. Kelley replied, “Yes, absolutely.” Dr. Kelley elaborated, “So,
having to comprehend language, comprehend language that’s being delivered quickly and then
think about what that language means and make a decision about it, all of those would be
vulnerabilities he’s kind of walking into the room with.”
Dr. Kelley confirmed that she had reviewed the video of Crew Hamilton’s interview and
determined that it took about 20 seconds for Detective Perla to read Crew Hamilton his Miranda
rights, which “came out to about a rate of 260 words per minute.” Dr. Kelley said that
“benchmarks” “from other published research” indicated that “typical spoken language is about
150 words per minute,” and she explained that for a person with average intellectual functioning,
the “upper limit” for hearing and understanding would “be around 250 words per minute . . . .”
Defense counsel asked Dr. Kelley, “For someone with this borderline intellectual
functioning and a processing speed issue, would you expect comprehension of speech delivered
at that pace to be readily understood?” Dr. Kelley replied, “No. No, I would expect those
vulnerabilities to kind of magnify comprehension problems.” In her view, it “would be difficult
to reconcile” the detective’s answer to Crew Hamilton’s question, “[M]y lawyer will be at the
- 14 - magistrate place[?],” with the explanation, “[N]o, you can retain your own if you want to pay for
it or you’ll be appointed one, but that’s not until your arraignment which will probably be
tomorrow morning.” Dr. Kelley explained, “Those would maybe sound like opposites or at least
statements that are kind of contradictory or one might—the second statement would maybe be
understood as negating the first statement.”
Defense counsel asked Dr. Kelley whether, during her conversations with Crew
Hamilton, he could “ever spontaneously recall any of the Miranda warnings?,” to which
Dr. Kelley replied, “He could recall the right to remain silent and he knew about the right to
counsel. So, he was able to convey something, you know about, ‘they told me that I had the
right to a lawyer.’” Dr. Kelley testified that during her conversations with Crew Hamilton, he
“express[ed] a belief that he had asked for a lawyer” and did not believe he could have ended the
interview. Dr. Kelley opined that Crew Hamilton’s “understanding was it kind of doesn’t matter
what you say, the questioning just keeps going. There wasn’t anything he could come up with to
have said that would have ended the interview.”
During cross-examination, Dr. Kelley acknowledged that she knew that Crew Hamilton
“had prior police contact before this case” and that it was possible if during that prior contact
Crew Hamilton had a lawyer who explained the Miranda warnings to him, that could improve
his comprehension. Dr. Kelley said that she did not know that another detective had read Crew
Hamilton his Miranda warnings four days before Detective Perla’s recitation.
After hearing argument from both sides, the trial court denied the motion to suppress.
The trial court first found that there was no clear and unequivocal invocation of Crew Hamilton’s
rights to terminate the interview, to remain silent, or to have counsel present. The trial court
noted that the waiver issue was “a close call,” but highlighted that Crew Hamilton had been
advised of his Miranda rights and gave an explicit waiver when “he said he understood the rights
- 15 - and he agreed to talk.” The trial court also found that “there were subsequent implicit waivers by
him continuing to answer questions and talk.”
The trial court noted that Detective Sekely’s explanation about Crew Hamilton’s right to
counsel was not “an attempt to mislead him” and “was a pretty accurate recitation of what
happens in the real world, but didn’t go to the extent to say you understand that means you don’t
have to talk to us until after that lawyer gets here if you don’t want to.” The trial court found that
the “accommodation” could have been made, but also noted that “at least at that point in the
interview, there’s no indication whatsoever that the Defendant doesn’t understand or that he has
any significant deficit in his mental ability.”
The trial court found Crew Hamilton’s previous involvement with the criminal justice
system was particularly relevant since he was on probation at the time of the offense, had been in
jail in another jurisdiction, and was advised of his Miranda rights just four days before the
interview. The trial court also found that based on the demeanors of the detective as well as of
Crew Hamilton, “[t]here was nothing coercive in the conventional sense of the word coercive
that went on during the course of this interview.” The court expressly found that neither the
“long pauses” nor the “ultimate length of the interview” was coercive and described the overall
atmosphere during the interview as “friendly and congenial” and “a back and forth between the
detectives and the Defendant.” The court concluded, “So, based on the totality of the
circumstances, I find that there is a preponderance of the evidence that the Defendant did . . .
knowingly and intelligently waive his rights, [that] there was no coercion, [and] that the motion
to suppress should be denied.”
It is from that ruling that Crew Hamilton appeals.
- 16 - ANALYSIS
Crew Hamilton’s sole contention on appeal is that the trial court erred by refusing to
suppress the statements he made to Detectives Perla and Sekely. He maintains that the evidence
failed to prove he knowingly, intelligently, and voluntarily waived his Miranda rights or that his
statement was voluntary.7 We disagree.
“At a hearing on a defendant’s motion to suppress a confession, the Commonwealth must
prove by a preponderance of the evidence both that the accused knowingly, intelligently and
voluntarily waived his Miranda rights and that the confession itself was voluntary.” Rodriguez v.
Commonwealth, 40 Va. App. 144, 155 (2003). In reviewing a trial court’s denial of a motion to
suppress, the burden is on the appellant to show that the denial of his motion was reversible error.
McCain v. Commonwealth, 261 Va. 483, 489-90 (2001). Whether the waiver was knowing and
intelligent is a question of fact that “will not be disturbed on appeal unless plainly wrong” or
without evidence to support it.8 Rodriguez, 40 Va. App. at 156 (quoting Harrison v.
Commonwealth, 244 Va. 576, 581 (1992)). On the other hand, whether the confession was
7 Our dissenting colleague asserts a new and different argument on behalf of the appellant. Despite capable defense counsel never arguing to the trial court that appellant invoked his right to an attorney—neither in a written suppression motion nor during the suppression hearing—nor maintaining such a position before this Court—neither in briefing nor during oral argument, the dissent asserts this argument as the grounds for reversing the trial court. 8 While our dissenting colleague begins by stating the proper deference that must be afforded to a trial court’s finding of fact, the dissent ignores that requirement. “An appellate court may neither find facts nor draw inferences that favor the losing party that the factfinder did not. This remains so even when the factfinder could have found those facts or drawn those inferences but, exercising its factfinding role, elected not to do so.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). In fact, the dissent accuses the majority of “fail[ing] to properly weigh” the facts presented to the trial court in reaching our affirmance. Again, the dissent ignores that the application of the proper standard of deference “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Yearling v. Commonwealth, 71 Va. App. 527, 532 (2020) (emphasis added) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). - 17 - voluntary is “ultimately a legal rather than factual question, but subsidiary factual decisions are
entitled to a presumption of correctness.” Id. (quoting Commonwealth v. Peterson, 15 Va. App.
486, 487 (1992)).
The Fifth Amendment to the United States Constitution provides that “[n]o person shall . . .
be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Thus,
when an individual is taken into custody and subject to police questioning, he must be warned “that
he has the right to remain silent, that anything he says can be used against him in a court of law,
[and] that he has the right to the presence of an attorney . . . .” Miranda v. Arizona, 384 U.S. 436,
479 (1966). “After such warnings have been given, . . . the individual may knowingly and
intelligently waive these rights and agree to answer questions or make a statement.” Id. “But unless
and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against him.” Id. In fact, “[e]ven when a suspect
has waived his Miranda rights, his confession is inadmissible if it was involuntary for other
reasons.” Rodriguez, 40 Va. App. at 155. Thus, “[a]t a hearing on a defendant’s motion to suppress
a confession, the Commonwealth must prove by a preponderance of the evidence both that the
accused knowingly, intelligently and voluntarily waived his Miranda rights and that the confession
itself was voluntary.” Id.
A. Waiver
There are “two distinct dimensions” to a waiver. Thomas v. Commonwealth, 82 Va. App.
80, 105 (2024) (en banc) (quoting Berghuis v. Thompkins, 560 U.S. 370, 382 (2010)). A waiver
must be “voluntary in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception,” and it must be “made with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to abandon it.” Id. (quoting
Berghuis, 560 U.S. at 382-83). “Only if the totality of the circumstances surrounding the
- 18 - interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court
properly conclude that the Miranda rights have been waived.” Tirado v. Commonwealth, 296 Va.
15, 28 (2018) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). The totality of the
circumstances includes “the conduct of the police,” as well as “the defendant’s age, education,
language, alienage, experience with police, and whether the defendant stated that he understood his
rights as read to him.” Thomas, 82 Va. App. at 106 (quoting Tirado, 296 Va. at. 28-29). “A
defendant’s prior experience receiving Miranda warnings may also bolster the conclusion that a
later Miranda waiver was made voluntarily.” Id. at 110.
“Both the right to remain silent and the right to counsel require the suspect to
unambiguously invoke them.” Thomas v. Commonwealth, 72 Va. App. 560, 574 (2020). Indeed, if
a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74. However, “Miranda
should not be read so strictly as to require the police to accept as conclusive any statement, no
matter how ambiguous, as a sign that the suspect desires to cut off questioning.” Midkiff v.
Commonwealth, 250 Va. 262, 267 (1995) (quoting Lamb v. Commonwealth, 217 Va. 307, 312
(1976)).
“[A] clear and unambiguous assertion of the right to remain silent or to counsel is necessary
before authorities are required to discontinue an interrogation.” Green v. Commonwealth, 27
Va. App. 646, 653 (1998). “In the context of the right to counsel, ‘[A]mbiguity arises from the
circumstances leading up to the statement, along with the statement itself, rather than the words of
the statement alone.’” Thomas, 72 Va. App. at 574 (alteration in original) (quoting Stevens v.
Commonwealth, 57 Va. App. 566, 577 (2011)). “Similarly, in determining whether a suspect
unambiguously invoked his right to silence, we consider the substance of the statement as well as
the context in which it was made.” Id.
- 19 - In this case, the evidence supports the trial court’s factual finding that Crew Hamilton
waived his Miranda rights. At the time of the interview, Crew Hamilton was 31 years old, gainfully
employed, and on probation in Las Vegas. He had also spent time in jails in Arlington, Virginia,
and Washington, D.C. By all appearances, Crew Hamilton spoke and understood the English
language and there was nothing to suggest that he did not reasonably comprehend the questions
posed to him during his interrogation. Detective Sanz-Guerrero read Crew Hamilton his Miranda
warnings just days before his interview with Detectives Perla and Sekely. In addition, before
questioning on June 1, 2022, Detective Perla read from a preprinted Miranda rights card that was
nearly identical to the one used by Detective Sanz-Guerrero.
As Detective Perla read him his rights, Crew Hamilton sat across the table gazing at Perla
and appeared to be listening intently. On both days, Crew Hamilton said he understood his rights,
and on June 1 he expressly agreed to speak with Detectives Perla and Sekely without a lawyer
present. Moreover, the record is devoid of any police misconduct, overreaching, or coercion in
obtaining Crew Hamilton’s waiver. Although Crew Hamilton said multiple times that he was ready
to appear before the magistrate and wanted to return to his cell, he did not, as he contends,
affirmatively or unambiguously say that he wanted to cease the interview.
In past cases, we recognized that a “defendant’s relatively low intelligence and defective
education are factors which should be weighed, along with all surrounding circumstances, in
determining whether . . . his confession was voluntary.” Bottenfield v. Commonwealth, 25 Va. App.
316, 324 (1997) (alteration in original) (quoting Simpson v. Commonwealth, 227 Va. 557, 564
(1984)). These factors, however, are not dispositive. Simpson, 227 Va. at 564; see also Goodwin v.
Commonwealth, 3 Va. App. 249, 254-57 (1986). Indeed, “[a]n otherwise valid confession or
Miranda waiver is not rendered invalid because the defendant has a diminished mental capacity.”
Thomas, 82 Va. App. at 110. “For one thing, we have repeatedly held that persons with diminished
- 20 - mental capacities may still be capable of voluntarily confessing or waiving their Miranda rights.”
Id.
“For another thing, “‘while mental condition is surely relevant to an individual’s
susceptibility to police coercion,” [a defendant’s] “mental condition, by itself and apart from its
relation to official coercion” can never “dispose of the inquiry into constitutional ‘voluntariness.’”’”
Id. at 111 (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 227 n.10 (2018)).
“That is because ‘Miranda protects defendants against government coercion leading them to
surrender rights protected by the Fifth Amendment; it goes no further than that.’” Secret, 296 Va. at
227 n.10 (quoting Colorado v. Connelly, 479 U.S. 157, 170-71 (1986)). Thus, this Court has
“rejected challenges to the voluntariness of a confession or of a Miranda waiver by people with low
IQs when the police did not use coercive tactics to exploit such vulnerabilities.” Thomas, 82
Va. App. at 111.
The record does not support Crew Hamilton’s assertion that he was coerced by his
“borderline intellectual functioning” into waiving his Miranda rights; nor does the record show that
he failed to comprehend them. To the contrary, Crew Hamilton expressly stated that he understood
his rights and did not voice any confusion, ask any questions, or request any clarification. The
answers he gave during the interview were responsive and appropriate to the questions asked and
required no explanation. Furthermore, while Dr. Kelley testified that Crew Hamilton’s overall IQ of
64 was within the range for intellectual disability, she also noted that he did not meet the criteria for
such a diagnosis due to his level of adaptive functioning.
Dr. Kelley testified that Crew Hamilton performed well on some of the testing measures,
which indicated that he understood the nature of police interrogations as well as his appreciation of
the right to counsel and the right to remain silent. Crew Hamilton “got at least one recognition item
correct for each of the [Miranda] rights,” could define some of the relevant words “without an
- 21 - issue,” and had a basic understanding of the right to remain silent and the advisement that anything
he said could be used against him in court. Dr. Kelley also acknowledged that if Crew Hamilton’s
previous lawyers had explained the warnings to him, his comprehension of his rights under Miranda
may have been improved.
We therefore find, under the totality of the circumstances presented here, that Crew
Hamilton, despite his intellectual limitations, made “an uncoerced choice” with “the requisite level
of comprehension” of his rights to waive those rights and speak with law enforcement. Moran, 475
U.S. at 421. The trial court did not err in finding that Crew Hamilton knowingly and intelligently
waived his Miranda rights.
B. Free and Voluntary Confession
The test to be applied in determining the voluntariness of a defendant’s statement “is
whether the statement is the ‘product of an essentially free and unconstrained choice by its maker,’
or whether the maker’s will ‘has been overborne and his capacity for self-determination critically
impaired.’” Midkiff, 250 Va. at 268 (quoting Burket v. Commonwealth, 248 Va. 610, 611 (1994)).
“In determining whether a defendant’s will has been overborne, courts look to ‘the totality of all the
surrounding circumstances,’ including the defendant’s background and experience and the conduct
of the police.” Gray v. Commonwealth, 233 Va. 313, 324 (1987) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973)).
“Evidence of coercive police activity ‘is a necessary predicate to the finding that a
confession is not ‘voluntary.’’” Washington v. Commonwealth, 43 Va. App. 291, 303 (2004)
(quoting Peterson, 15 Va. App. at 488). “In other words, ‘some level of coercive police activity
must occur before a statement or confession can be said to be involuntary.’” Id. (quoting Peterson,
15 Va. App. at 488). “In considering the conduct of the police, we ‘must consider the interrogation
techniques employed, including evidence of trickery and deceit, psychological pressure, threats or
- 22 - promises of leniency, and duration and circumstances of the interrogation.’” Peterson, 15 Va. App.
at 488 (quoting Terrell v. Commonwealth, 12 Va. App. 285, 291 (1991)).
The record lacks any evidence suggesting that Detectives Perla and Sekely coerced Crew
Hamilton into confessing to the murder. Before questioning, Detectives Perla and Sekely gave
Crew Hamilton a bottle of water and allowed him to use the bathroom. They then asked if he
needed anything. During questioning, the detectives provided Crew Hamilton with snacks, more
water, and another bathroom break. Detective Sekely later purchased cigarettes and took Crew
Hamilton outside so he could smoke. The officers conducted the interview in a normal, quiet tone
of voice, remained calm and cordial throughout, and did not threaten Crew Hamilton or brandish
their weapons.
Despite that the interview lasted four hours, much of it covered matters unrelated to the
homicide, and the detectives at times listened in silence without interrupting Crew Hamilton, even
when they knew he was lying. Although Crew Hamilton himself grew quiet at times, he did not
specifically ask to stop talking, even when Detective Perla suggested that he could certainly decline
to tell his side of the story. The detectives endured the moments of silence to give Crew Hamilton a
“chance to start speaking again.” Detective Perla testified that he did not take Crew Hamilton to the
magistrate upon request because “the interview was ongoing,” and Crew Hamilton did not expressly
ask to end it.
The trial court reviewed the tape of the interview and considered testimony at the hearing
and ultimately found that Detectives Perla and Sekely did not attempt to mislead Crew Hamilton.
There was “no indication whatsoever” that Crew Hamilton did not understand his rights, and the
evidence failed to prove he had any significant deficit in his mental ability. The trial court also
found that Crew Hamilton had previous involvement with law enforcement and that the interview
was conducted in a friendly and cordial manner. These findings are not plainly wrong and support
- 23 - the legal conclusion that Detectives Perla and Sekely did not coerce Crew Hamilton’s voluntary
confession.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of Crew Hamilton’s suppression
motion and affirm his convictions.
Affirmed.
- 24 - Causey, J., dissenting.
Under a deferential standard of review, the facts here do not support a finding that Crew
Hamilton’s Miranda waiver was knowing, intelligent, or voluntary, as he did not understand the
complexities of his right to counsel, and the detectives did not acknowledge his seven
invocations of that right. See Rodriguez v. Commonwealth, 40 Va. App. 144, 156 (2003) (noting
whether a Miranda waiver was knowing, intelligent, or voluntary is a question of fact that “will not
be disturbed on appeal unless plainly wrong”). The trial court found that whether Crew Hamilton
waived Miranda was a “close call” but ultimately decided that Crew Hamilton’s waiver was
knowing and intelligent—a decision that was plainly wrong, especially given the facts established
by Dr. Kelley. Seven times Crew Hamilton expressed his desire to leave the interrogation room
to seek counsel, and the detectives ignored his requests, disregarding Crew Hamilton’s Fifth
Amendment right against self-incrimination.
A. Invocation of the right to counsel
Given Crew Hamilton’s (1) diminished intellectual capacity and, (2) the police officer’s
statement that Crew Hamilton would be appointed a lawyer before the magistrate at his arraignment
the following morning, the trial court erred in finding that Mr. Crew Hamilton did not invoke his
right to counsel. While the right to counsel must be “unambiguously” invoked, laypeople—
especially those with diminished intellectual capacity—must be given the benefit of context when
invoking their right to counsel. Midkiff v. Commonwealth, 250 Va. 262, 267 (1995) (“Miranda
should not be read so strictly as to require the police to accept as conclusive any statement . . . as a
sign that the suspect desires to cut off questioning.” (quoting Lamb v. Commonwealth, 217 Va. 307,
312 (1976))); Thomas v. Commonwealth, 72 Va. App. 560, 574 (2020). Here, the trial court
considered “the substance of the statement” but failed to consider “the context in which it was
made.” Id. It therefore erroneously denied Crew Hamilton’s motion to suppress.
- 25 - The first invocation of counsel occurred twenty minutes after Detective Perla advised
Crew Hamilton of his Miranda rights. Crew Hamilton asked, “So my lawyer is going to be at
the little magistrate place, huh?” Detective Sekely, the second detective in the room, asked Crew
Hamilton, “Do you have one already?” And Crew Hamilton replied, “No.” Detective Sekely
then said, “No, so you can retain your own one if you want to pay for it, or you’ll be appointed
one, but that’s not until your arraignment, which will probably be tomorrow morning.”
Detective Sekely clarified that arraignments were at 8:30 a.m.
Thirty minutes later, Detective Perla asked if Crew Hamilton had any questions for them.
Crew Hamilton invoked for the second time when he responded, “I’m just ready to go see the
magistrate, man, so I can go lay back down in the cell. Holler at this lawyer tomorrow. Take it
from there.”
After Crew Hamilton had been in the interview room for an hour and a half, Crew
Hamilton mentioned that he thought he would see a magistrate but instead was forced to answer
questions. After he answered a few more questions, Crew Hamilton invoked for the third time
when he stated, “Alright, I’m ready to go see this magistrate now.” Detective Sekely ignored his
unambiguous invocation, replying, “I get you man, I get you, we’re getting there.” Detective
Perla noted that it was “a slow process.”
About fifteen minutes later, Detective Sekely told Crew Hamilton that once he went
before the magistrate, Crew Hamilton’s opportunity to “tell [his] side of the story” would end
because his lawyer would likely not let him testify at a murder trial given the risks of
cross-examination. Crew Hamilton stated, “I’m ready to go, to be honest with you. I’m tired of
these cuffs, I’m tired . . . I want to see this magistrate person.” Detective Perla ignored this
fourth invocation of his right to terminate the interview, replying, “Let me ask you this, alright?
- 26 - What conversation happened here between you and Treetop? Give me a little bit on what
transpired there.” Crew Hamilton paused and then said, “I don’t know.”
After additional questioning and moments of silence, Crew Hamilton for the fifth time
tried to terminate the interview, telling the detectives, “I’m just ready to go.” Detective Sekely
told Crew Hamilton he knew that it was “hard to see a path forward from this point,” and that,
“This is your only chance.”
Two hours and twenty minutes into the interrogation, Detective Sekely seemed to
acknowledge that Crew Hamilton no longer wanted to speak to the detectives when he said there
was a difference between not knowing and not wanting to tell them, and “what you mean to say
is you don’t want to talk about it, which is, that’s fine if that’s what you choose to do.” Crew
Hamilton did not respond. Ten minutes later, Crew Hamilton for the sixth time invoked his right
to counsel, saying, “I’m just ready to go see the magistrate, and lay down in my cell.” Detective
Perla replied, “So you don’t want us to give an answer to her mom? You don’t want her mom to
have closure?” Crew Hamilton did not respond.
Fifteen minutes later, Detective Sekely told Crew Hamilton, “If the option that you’re
leaning towards is to not talk anymore and say take me to the magistrate, and we go forward with
what we have, that’s your decision. I think our case is very strong.” Crew Hamilton did not
respond. A few minutes later, Crew Hamilton told the detectives to take him to his cell, a
request he reiterated a few seconds later. This was his seventh and final attempt to end the
interrogation until after he had been to see the magistrate. In response, Detective Perla asked,
“You don’t want to do it for her, man, one last thing?,” disregarding Crew Hamilton’s request to
end the interrogation.
In uncontradicted evidence presented to the trial court, an expert in clinical forensic
psychology, Dr. Kelley, noted that it “would be difficult to reconcile” the detective’s answer to
- 27 - Crew Hamilton’s question, “[M]y lawyer will be at the magistrate place[?],” with the
explanation, “[N]o, you can retain your own if you want to pay for it, or you’ll be appointed one,
but that’s not until your arraignment which will probably be tomorrow morning.” Dr. Kelley
explained that for a person with Crew Hamilton’s diminished capacity, “Those would maybe
sound like opposites or at least statements that are kind of contradictory or one might—the
second statement would maybe be understood as negating the first statement.”
The majority argues that Crew Hamilton did not “affirmatively or unambiguously” say he
wanted to terminate the interrogation. To defend its position, the majority highlights how both
detectives denied that Crew Hamilton ever tried to end the interrogation or speak to a lawyer,
though both detectives admitted Crew Hamilton asked to see the magistrate multiple times over
the course of the interrogation. When asked why he did not take Crew Hamilton to the
magistrate upon request, Detective Perla merely explained, “Because the interview was ongoing,
and we were eventually going to take him to the magistrate after we were completed with the
interview.” In relying on Officer Perla’s testimony, the majority fails to consider the context in
which Crew Hamilton invoked his right to counsel.
Crew Hamilton was questioned by Detectives Perla and Sekely for over four hours, in the
middle of the night, before he confessed. Over the course of that long evening, Crew Hamilton
invoked his right to counsel a total of seven times. Early on, he was told that he would get a
lawyer at his arraignment, in front of the magistrate, in the morning. He then repeatedly asked to
see the magistrate, which is again where he was told he would get his lawyer. In response, Crew
Hamilton asked to go back to his cell to go to bed, in an effort to wake up and seek counsel at his
arraignment the following morning. Crew Hamilton began asking to go back to his cell after
officers repeatedly ignored or brushed aside his requests to see the magistrate. In context,
Hamilton’s seven statements can only be understood as a request for an attorney, or to end the
- 28 - interview somehow. This is different from the many ambiguous-invocation cases where
defendants state they “maybe” want a lawyer or “might” call one. Given Crew Hamilton’s (1)
diminished intellectual capacity and (2) the detective’s statement that his lawyer would be at the
magistrate, it is unambiguous that each time he asked to see a magistrate or, when that did not
yield a result, to go to his cell, Crew Hamilton was asking to see a lawyer—or, at the very least,
that the interrogation needed to end until after a lawyer was appointed to him.
Stating that Hamilton’s words were ambiguous subjects Crew Hamilton to an unjust
quest for some magic words that would trigger an end to his interrogation.9 He told Detective
Perla he wanted to “[h]oller at this lawyer tomorrow.” He then restated, forty minutes later, “I’m
ready to go see the magistrate now.” Detective Sekely responded that, when Crew Hamilton
went to see the magistrate, he would not get to “tell [his] side of the story,” indicating Detective
Sekely understood what Crew Hamilton was asking for: a lawyer to represent his interests. All
laypersons, but especially those with diminished mental capacity, cannot be expected to know
which words must be uttered to end their interrogation. As with any constitutional right, context
is key. This principle has led to a longstanding requirement that courts give context to a
defendant’s statements. And the context here shows Crew Hamilton asking detectives to end his
interview, to go to bed so he can wake up and see the magistrate, who in turn will provide him a
lawyer. The record shows that the detectives ignored those requests in a deliberate disregard for
the safeguards of Crew Hamilton’s Fifth Amendment rights.
9 The majority is, by all intents and purposes, upholding the following finding of the trial court: “The whole issue I think is not whether or not there was . . . a clear and unequivocal invocation of his rights. I find that there was not. That he did not clearly and unequivocally say, ‘I want to stop this interview, I want to remain silent’ or ‘I don’t want to talk anymore before I have counsel.’” Even disregarding their intellectual capacities, a layperson like Crew Hamilton, who did not even attend high school, cannot possibly be held to such a high standard when invoking their Miranda rights. “Hollar at this lawyer tomorrow” and “I’m done” followed by ten minutes of silence is and should be enough of an invocation to tell police that the interrogation must end. - 29 - B. Waiver
Combined with Crew Hamilton’s seven invocations of counsel, the trial court was also
plainly wrong to find a voluntary waiver. The totality of the circumstances show Crew Hamilton
did not voluntarily waive his right to counsel. As discussed below, Detectives speed-read the
Miranda warnings to Crew Hamilton, a man with an IQ of 64. Crew Hamilton’s first question
about where his lawyer would be demonstrated to detectives an obvious misunderstanding of the
right to counsel, and he repeatedly asked to either (1) go to the place where he would be appointed
counsel or (2) go to his cell. These factors, combined with the record evidence of Crew Hamilton’s
inability to comprehend the Miranda warning, show that Crew Hamilton did not knowingly,
intelligently, or voluntarily waive his right to counsel.
In Thomas v. Commonwealth, 82 Va. App. 80, 105 (2024) (en banc), we held that a waiver
must be “the product of a free and deliberate choice . . . made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon it.” (Emphasis
added) (quoting Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010)). The totality of the
circumstances to determine knowingness, intelligence, and voluntariness of such a waiver includes
“the defendant’s age, education, language, alienage, experience with police, and whether the
defendant stated that he understood his rights as read to him.” Thomas, 82 Va. App. at 106 (quoting
Tirado v. Commonwealth, 296 Va. 15, 29 (2018)).
The record contradicts the majority’s contention that “there was nothing to suggest that
[Crew Hamilton] did not reasonably comprehend the questions posed to him during his
interrogation.” Supra, at 20. The facts established by the uncontradicted testimony of Dr. Kelley,
the sole expert witness at the suppression hearing, show that Crew Hamilton did not make a
deliberate choice with full awareness of the consequences of his continuing to speak after each of
his seven invocations of his right to counsel.
- 30 - First, Dr. Kelley testified that Crew Hamilton was in the “borderline intellectual
functioning range” with an IQ score of 64 and that “this category of borderline intellectual
functioning is basically one tick above having an intellectual disability.” During his “word
reading” and “sentence comprehension” tests—the “most relevant” test to show his ability to
understand Miranda warnings—Crew Hamilton performed at a fourth-grade level in reading and
a seventh-grade level in sentence comprehension.
As the majority conveniently fails to mention, Dr. Kelley also noted that Crew Hamilton
“had a history of special education that started in second grade” and that Crew Hamilton left
school “during or after ninth grade.” And Dr. Kelley opined that a history of special education
could be relevant to Crew Hamilton’s “ability to understand this [Miranda] language and kind of
limited education opportunities would influence that as well.”
Second, Dr. Kelley testified that Detective Perla administered the Miranda warning at
260 words per minute. The average rate of speed of typical spoken language is 150 words per
minute. Per Dr. Kelley, a person with average intellectual functioning can comprehend language
with an “upper limit” of 250 words per minute, but with Crew Hamilton—with diminished
intellectual capacity—the processing speed is much lower. This led Dr. Kelley to testify that she
“would expect those [intellectual] vulnerabilities to kind of magnify comprehension problems.”
Dr. Kelley was then asked whether Crew Hamilton would understand, given his “processing
speed issues,” the detective’s answer to his question, “So my lawyer will be at the magistrate
place, huh?” In response to the question, the detective said, “No. You can retain your own if
you want to pay for it or you’ll be appointed one, but that’s not until your arraignment which will
probably be tomorrow morning.” Dr. Kelley testified that “with [his] level of cognitive
functioning, those two statements would be difficult to reconcile.”
- 31 - Third, after a Miranda comprehension test, Dr. Kelley found that Crew Hamilton
“struggled with words like consult and attorney.” She also noted that he “had a lot of trouble
with right, just defining what a right is generally . . . [He] only was able to define right as being
correct, not as the idea of a protected privilege that somebody has.” Dr. Kelley found that Crew
Hamilton scored lower than average on this test among adults in the legal system generally and
“a bit lower” than those who have a similar IQ to him.
Finally, the majority asserts that Crew Hamilton surely did not fail to comprehend his
rights, as he “expressly stated that he understood his rights and did not voice any confusion, ask any
questions, or request any clarification.” Supra, at 21. This assertion is not supported by the
record. Crew Hamilton asked the detectives, “So my lawyer is going to be at the little magistrate
place, huh?” Detective Sekely asked Crew Hamilton, “Do you have one already?” And Crew
Hamilton replied, “No.” Detective Sekely then said, “No, so you can retain your own one if you
want to pay for it, or you’ll be appointed one, but that’s not until your arraignment, which will
probably be tomorrow morning.” Not only is this exchange arguably an invocation of the right
to counsel, but suggests a lack of understanding of how the right to counsel works—which was
not corrected by the officer. Dr. Kelley testified that Crew Hamilton “express[ed] a belief that he
had asked for a lawyer” and, given the detectives’ responses to those requests, did not believe he
could have ended the interrogation. Dr. Kelley opined that Crew Hamilton’s “understanding was
it kind of doesn’t matter what you say, the questioning just keeps going. There wasn’t anything
he could come up with to have said that would have ended the interview.”
Given that Crew Hamilton struggled to understand his Miranda rights, the trial court was
plainly wrong, as Crew Hamilton did not have the requisite level of comprehension to conclude he
had waived his right to counsel. See Tirado, 296 Va. at 28 (“Only if the totality of the
circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite
- 32 - level of comprehension may a court properly conclude that the Miranda rights have been waived.”
(emphasis added) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986))). The trial court
overlooked this important comprehension element, focusing merely on the lack of coercion and
Crew Hamilton’s past experiences with the justice system.
While true that Crew Hamilton had also spent time in jails in Arlington, Virginia, and
Washington, D.C., and Detective Sanz-Guerrero read Crew Hamilton his Miranda warnings just
days before his interrogation, the totality of the circumstances test disallows any one factor to itself
close the inquiry. The facts established, as detailed above, show that Crew Hamilton did not have
the capacity to understand the Miranda rights read to him. In fact, when asked about the impact of
having heard Miranda warnings previously on his ability to comprehend them, Dr. Kelley
explained there was “no meaningful correlation or relationship between [comprehension and]
prior justice system experience.” The trial court therefore failed to balance the factors, instead
crediting Crew Hamilton’s past experiences in the criminal legal system and ignoring his
underlying ability to understand the warnings provided to him. Both comprehension and a lack
of coercion are needed to successfully waive Miranda, and neither was met here. See Tirado,
296 Va. at 28.
In response, the majority merely notes that this Court has recognized that a “defendant’s
relatively low intelligence and defective education” are mere factors to be weighed with the totality.
Bottenfield v. Commonwealth, 25 Va. App. 316, 324 (1997) (quoting Simpson v. Commonwealth,
227 Va. 557, 564 (1984)). See also Thomas, 82 Va. App. at 110 (“An otherwise valid confession or
Miranda waiver is not rendered invalid because the defendant has a diminished mental capacity.”
(emphasis added)). In Thomas, this Court held that “persons with diminished mental capacities may
still be capable of voluntarily confessing or waiving their Miranda rights.” Id. However, here,
unlike in Thomas, there are several factors that—coupled with Crew Hamilton’s diminished mental
- 33 - capacities—show he could not have possibly knowingly, intelligently, and voluntarily waived his
Miranda rights under a totality of the circumstances. The defendant in Thomas had this Miranda
warning read to him at a comprehensible speed and did not invoke his desire to seek an attorney.
See id. at 97-98. And, importantly, there was no indication that Mr. Thomas did not understand his
right to counsel, whereas Crew Hamilton asked many questions indicating that he did not
understand his rights. Id. The court in Thomas also relied on the defendant’s mother’s testimony
regarding his general history with special education, whereas Crew Hamilton was assessed by an
expert forensic clinical psychologist who observed him and was able to show his specific inabilities
to understand his Miranda rights during his interrogation. Id. The majority fails to contend with
this distinction and refuses to properly weigh Crew Hamilton’s limited mental capacity, history in
special education classes, the speed at which he was read the Miranda warning, his seven
invocations of counsel, and his inability to comprehend the Miranda warning. The trial court even
acknowledged that Crew Hamilton’s waiver of Miranda was a “close call.” But ultimately, its
decision was plainly wrong given the undisputed facts that Dr. Kelley established. No reasonable
factfinder could find, in the context of his specific interrogation, that Crew Hamilton knowingly,
intelligently, and voluntarily waived his right to counsel.
Lastly, the majority claims that Crew Hamilton “never argu[ed] to the trial court that
appellant invoked his right to an attorney—neither in a written suppression motion nor during
the suppression hearing—nor maintaining such a position before this Court.” (Emphasis added).
Inexplicably, the majority omits the following exchange that occurred during the argument over
the suppression hearing:
[The Court:] Do we agree that based on the evidence before the Court, there is no absolute, unequivocal, invocation of the right to counsel?
- 34 - [Defense counsel:] Your Honor, no. There are repeated references to wanting to leave the interrogation room to get to counsel.
...
[Defense counsel:] You know, is his vernacular exactly that which you or I would use? No, but is it unambiguous that what he wants to do is leave this interview room and get in touch with a lawyer as soon as possible. He believes that to be tomorrow, yes. That’s consistent with his language. So, I do not agree that there was no unambiguous indication of counsel.
(Emphases added). Additionally, the majority is also mistaken in claiming Hamilton failed to
maintain this position before this Court. In his opening brief, Crew Hamilton reiterated this
argument, noting that “Mr. Crew Hamilton attempted, within the limits of his intellectual
abilities, to terminate the interview and seek the assistance of a lawyer. These efforts were
thwarted by detectives who wouldn’t let him end the interview until they were finished.”
Because the majority has put form over substance, failing to protect Crew Hamilton from
being compelled to be a witness against himself, I respectfully dissent.
- 35 -
Related
Cite This Page — Counsel Stack
Devlon Crew-Hamilton, Sometimes Known as Devlon Crew Hamilton v. Commonwealth of Virginia, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devlon-crew-hamilton-sometimes-known-as-devlon-crew-hamilton-v-vactapp-2026.