Brown v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia

LOUIS BROWN, JR.
OPINION BY
v. Record No. 1225-99-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge

William J. Baker for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

Louis Brown appeals from his convictions of rape, two

counts of forcible sodomy, abduction with intent to defile, and

attempted abduction with intent to defile. On appeal, he

contends the trial court erred: 1) in denying his challenges

for cause to jurors Speight and Judd; 2) in overruling his

motion to suppress DNA evidence purportedly obtained as the

result of an illegal arrest; 3) in denying his motion to

suppress evidence purportedly obtained from an illegal search of

his home; 4) in denying his motion to strike the Commonwealth's

evidence on the charge of attempted abduction with intent to

defile; and 5) by refusing to give his proposed instructions D

and E. For the reasons that follow, we reverse the convictions

and remand for a new trial.
 FACTS

"On appeal, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Tibbs v. Commonwealth,

31 Va. App. 687, 691, 525 S.E.2d 579, 581 (2000) (citation

omitted). On the evening of July 7, 1998, Y.W. and J.M., two

fourteen-year-old girls, were going door to door in a townhouse

community on Lynn Street, in Prince William County, selling

subscriptions to The Potomac News. Their supervisor, Karen

Davenport, drove them to this location, where they were

dispatched to sell subscriptions.

Y.W. knocked on the door of Brown's home and inquired

whether he wished to purchase a subscription. He invited her

inside. Y.W. stood near the door and Brown sat on a couch on

the other side of the room. Brown agreed to purchase a

subscription, so Y.W. walked across the room, showed him the

necessary forms, and accepted his personal check as payment.

Brown then got up, walked to the front door, shut and locked it,

and said, "You're going to do what I tell you to do." He stood

in front of the door and told her to go upstairs. Y.W. became

frightened and confused and initially could not move. Brown

repeated his command, and Y.W. walked upstairs because she was

afraid of what he might do to her if she refused to comply.

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 Once upstairs, Brown took Y.W. by the arm and led her into

a bedroom. He ordered her to remove her shirt. She backed up

to a wall and said, "No, God. Please leave me alone. Let me

go." Brown walked toward her and again demanded that she remove

her shirt. When she refused, he knocked the subscription folder

from her hands, grabbed her so that her face was pressed against

his chest, and fell with her onto the bed. He said, "Shut up

and don't scream and if you do, I'll kill you." She then

complied with his order to remove her shirt. Brown grabbed her

shorts and tore them as he removed them. He then ordered her to

perform oral sex on him, and she reluctantly did so.

After Y.W. submitted to his demand for oral sex, Brown

raped her. Afterward, he ordered her to perform oral sex on him

again. Brown next performed oral sex on her. Finally, he told

Y.W. to get dressed, and he took her into the master bedroom,

where he told her to look out the window with him. They could

see J.M. sitting on the curb across the street. Brown asked,

"Is that your friend out there?" Y.W. answered affirmatively.

Brown then took a knife and said, "Come here, don't scream,

don't run. Do exactly what I tell you to do." He took her to

the front door, stood behind her, pressed the knife against her

back, and said, "Call your friend over here." Y.W. hesitated.

Brown pushed the knife against her and repeated his command.

Y.W. then called J.M. and gestured for J.M. to come to her.

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 J.M. walked toward the house, opened the screen door, and

saw that Y.W. was crying. J.M. asked what was wrong, and Brown

told her, "Get in here." J.M. did not comply, and Brown

repeated the command as he reached past Y.W. and grabbed the

strap of J.M.'s bib shorts. J.M. braced herself against the

doorframe and told Brown to release her. The strap of her

shorts tore, and Y.W. then saw Brown's knife lifted beside her

face, alerting her that he had released his grip on her. Y.W.

pushed him aside and stumbled out of the door, knocking J.M.

backward as Brown lost his grip on her. The girls fled from

Brown's house, returning to Davenport's van, where they reported

the attack. Davenport immediately called 911.

Officer Jason Kohl of the Prince William County Police

responded to the report. He met Y.W. in the rental office of

Brown's townhouse community at 7:25 p.m. and took Y.W.'s

description of her attacker. Y.W. also provided Kohl with the

signed check Brown had given her, which was imprinted with the

name, "Louis Brown." Kohl broadcast the description and name on

the police radio.

Officer John Mora was on uniformed bicycle patrol when he

received the report of a rape in progress on Lynn Street. He

was not in the vicinity when he heard the report, but he and

Officer Fall rode to Lynn Street where they met Kohl, who gave

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them Y.W.'s description of her assailant. Kohl also showed them

the personal check bearing Brown's name.

Mora and Fall set out in search of the suspect.

Approximately thirty minutes after hearing the report of the

rape, Mora saw a man matching the assailant's description at a

pay phone near the intersection of Mary's Way and Constellation

Place. When he approached the individual, the man hurriedly

walked away. Mora called to him to stop, and, explaining that

he was not under arrest, Mora asked the man if he could speak

with him concerning a report of a crime that had occurred

nearby. In response to Mora's request, the man produced a

Virginia identification card bearing the name, "Louis Brown."

Mora radioed other officers to come to the scene with a patrol

car. He then asked Brown if he would be willing to go to the

police station to discuss the incident. Brown agreed. Mora

told him again that he was not under arrest and that the police

only wanted to speak to him.

Officer Timothy Shaw arrived with a police car to convey

Brown to the police station. While en route, Shaw received a

request from another officer over the radio for Brown to go to

the middle school on Lynn Street for a "show up," so that Y.W.

could determine if Brown was the man who attacked her. Brown

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consented. After the show up was completed, 1 Brown was again

asked whether he was willing to go to the police station for

questioning, and he again gave his consent.

At the police station, Brown was interviewed by Detective

Steven Hayhurst. Detective Hayhurst placed Brown under arrest

approximately fifteen minutes after he began interviewing him.

Prior to this time, Brown was free to leave. The trial court

denied Brown's motion to suppress evidence gathered in the

course of the investigation prior to his arrest, finding that

his contact with the police until that point had been

consensual.

Brown was tried on January 29, February 1, 2, and 3, 1999.

The jury found him guilty of rape, abduction with intent to

defile, attempted abduction with intent to defile, and two

counts of forcible sodomy. This appeal followed.

TRIAL COURT'S REFUSAL TO DISMISS
JURORS SPEIGHT AND JUDD FOR CAUSE

Brown alleges that the trial court erred by denying his

motions to dismiss jurors Speight and Judd for cause. We agree

that the court erred in denying Brown's motion to dismiss Judd,

and reverse the convictions on that ground and remand for a new

trial. Because we reverse on that ground, we do not address the

court's denial of Brown's motion to dismiss juror Speight.

1
The record does not reveal whether Y.W. identified Brown
as her attacker at the show up.

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 In response to defense counsel's questions on voir dire,

Judd stated that she had been the victim of a sexual offense as

a child. When counsel asked if that experience could affect her

ability to decide the case impartially, she responded,

"Possibly." Counsel then asked her whether memories of her own

experience could come back to her during the course of the trial

and affect her judgment. She responded, "I don't know." The

Commonwealth's Attorney later questioned Judd, asking her

whether she could put aside her personal feelings to render a

fair and impartial verdict. Judd replied, "I don't know." The

prosecution then asked, "Do you think it would be impossible for

you to sit here and listen" to the evidence and give an

impartial verdict. Judd responded, "It would not be

impossible." Defense counsel moved to dismiss Judd for cause,

on the ground that she acknowledged having been the victim of a

sexual offense and could not state that her deliberations on the

case would be unaffected by her own experience. The court

denied the motion.

In assessing Judd's responses, the court observed that "Ms.

Judd . . . was somewhat ambiguous in her answers initially, but

. . . she did indicate that she could put [her experience] aside

and I think that's about as fair . . . an answer [as] one could

get. She didn't say emphatically yes or emphatically no. She

said she thought she could." The court thus interpreted Judd's

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answer to the Commonwealth's last question as meaning she

thought she was able to render an impartial judgment.

In fact, Judd said "[i]t would not be impossible" for her

to render an impartial verdict; she did not affirmatively state

she believed she could do so. It is evident from the record

that Judd's response was misunderstood by the trial court. The

double-negative construction "not impossible" logically and

semantically only means "possible." "Possible" means an

eventuality "that may or may not occur; that may chance;

dependent on contingency." Webster's Third New International

Dictionary 1771 (1981); see also Black's Law Dictionary 1166

(6th ed. 1990) ("possible" as denoting improbability). Judd's

statement, premised on possibility, chance, and contingency,

provided scant assurance that she was able to render a fair

verdict in this case. At best, her response was ambiguous and

equivocal. As such, it was insufficient as a basis "to dispel

the reasonable doubt . . . as to [Judd's] qualifications to

serve" as a juror in the case. Gosling v. Commonwealth, 7

Va. App. 642, 647, 376 S.E.2d 541, 545 (1989) (potential juror's

affirmation that "I don't think my impartiality would be

affected" by fact that defense witnesses were prison inmates

held insufficient to support trial court's determination that

juror could render an impartial verdict). Because "[a]ny

reasonable doubt regarding the prospective juror's ability to

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give the accused a fair and impartial trial must be resolved in

favor of the accused," Sizemore v. Commonwealth, 11 Va. App.

208, 212, 397 S.E.2d 408, 410 (1990), we hold that Judd's

response failed to provide a basis for the court's conclusion

that she could fairly and impartially hear the case.

In summary, because Judd's responses to voir dire

questioning were ambiguous and equivocal, we hold that the trial

court erred in denying Brown's motion to dismiss Judd for cause.

Because this violation is not harmless, see Justus v.

Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 90 (1980), we

reverse and remand for a new trial. 2

LEGALITY OF BROWN'S ARREST AND SUBSEQUENT SEIZURE
OF BODY FLUIDS AND HAIR

When a motion to suppress is reviewed on appeal, we must

examine the records of both the suppression hearing and the

trial to determine whether the evidence was lawfully seized.

2
Because "it is prejudicial error for the trial court to
force a defendant to use the peremptory strike afforded him by
Code § 19.2-262 to exclude a venireman who is not free from
exception," Justus, 220 Va. at 975, 266 S.E.2d at 90, the trial
court's failure to dismiss Judd for cause violated Brown's
statutory right to a panel of twenty venire members "free from
exception." See Code § 8.01-357; see also Griffin v.
Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 365 (1995).
Because the right to a panel of twenty jurors free from
exception is created by statute, this case is not controlled by
the recent decision of the United States Supreme Court in United
States v. Martinez-Salazar, 120 S. Ct. 774, 780 (2000) (so long
as jury that sits is impartial, fact that defendant had to use
peremptory challenge to achieve that result does not represent
violation of the Sixth Amendment).

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See Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d

543, 546 (1997). The evidence is viewed in the light most

favorable to the Commonwealth, granting to it all inferences

fairly deducible therefrom and discarding all evidence of the

accused that conflicts with that of the Commonwealth. See Burke

v. Commonwealth, 30 Va. App. 89, 91, 515 S.E.2d 777, 778 (1999).

The burden is on the appellant to demonstrate that, when the

evidence is so viewed, the trial court's ruling was plainly

wrong or without evidence to support it. See Mu'Min v.

Commonwealth, 239 Va. 433, 440, 389 S.E.2d 886, 891, aff'd, 500

U.S. 415 (1991). We review questions of reasonable suspicion

and probable cause de novo, as these are mixed questions of fact

and law. See McGee v. Commonwealth, 25 Va. App. 193, 197-98,

487 S.E.2d 259, 261 (1997) (en banc). However, the trial

court's findings of historical fact are binding unless plainly

wrong or without supporting evidence. See id. at 198, 487

S.E.2d at 261.

"[A] police officer may in appropriate circumstances and in

an appropriate manner approach a person for purposes of

investigating possibly criminal behavior even though there is no

probable cause to make an arrest." Parker v. Commonwealth, 255

Va. 96, 104, 496 S.E.2d 47, 51-52 (1998) (quoting Terry v. Ohio,

392 U.S. 1, 22 (1968)). "In order to justify a Terry seizure,

the police officer must be able to point to specific and

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articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion." Id. at

104, 496 S.E.2d at 52 (internal quotation omitted).

"[I]f there are articulable facts supporting
a reasonable suspicion that a person has
committed a criminal offense, that person
may be stopped in order to identify him, to
question him briefly, or to detain him
briefly while attempting to obtain
additional information." In determining
whether a police officer had a
particularized and objective basis for
suspecting that a person stopped may be
involved in criminal activity, a court may
consider the totality of circumstances.
This test is less stringent than probable
cause.

Id. (internal citations omitted). If a person matches the

physical description of a criminal suspect, the police have

reasonable suspicion to effect a Terry stop of that individual.

See Jones v. Commonwealth, 230 Va. 14, 18, 334 S.E.2d 536, 539

(1985). In conducting a Terry stop, the police must diligently

pursue a means of investigation likely to confirm or dispel

their suspicions quickly. See Thomas v. Commonwealth, 16

Va. App. 851, 857-58, 434 S.E.2d 319, 323 (1993), aff'd en banc,

18 Va. App. 454, 444 S.E.2d 275 (1994); Limonja v. Commonwealth,

8 Va. App. 532, 542, 383 S.E.2d 476, 482 (1989); DePriest v.

Commonwealth, 4 Va. App. 577, 587, 359 S.E.2d 540, 545 (1987).

Assuming arguendo that Brown was seized within the meaning

of the Fourth Amendment when he was approached by Officers Mora

and Fall, and later taken to the police station for questioning,

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we find that such a seizure was supported by reasonable

suspicion. When the officers first observed Brown talking on a

public telephone, they had just thirty minutes earlier been

given a physical description of Y.W.'s attacker by the victim

herself. Brown matched the attacker's description. The

officers encountered Brown no more than three blocks from the

scene of the crime, and they observed that his pants and shoes

were spattered with mud, suggesting that he had very recently

walked through the boggy wooded area behind Lynn Street. Also,

when Mora rode his bicycle past Brown and looked toward Brown

suddenly without speaking to him, Brown reacted by turning away

and "leav[ing] very fast." These facts, viewed in their

totality, supported Mora's decision to stop Brown and conduct a

limited investigation to determine whether Brown might be the

individual Y.W. identified as her attacker.

Mora first ascertained Brown's identity by asking Brown to

produce identification, and then, in furtherance of the

investigation, sought Brown's consent to go to the police

station for additional questioning. Mora informed Brown that he

was not under arrest, although he retained Brown's

identification card. 3 Brown consented. When Officer Shaw

3
The legality of Brown's seizure does not turn on the
retention of his identification card by the police, because the
seizure was supported by reasonable suspicion. Cf. Richmond v.
Commonwealth, 22 Va. App. 257, 468 S.E.2d 708 (1996) (police
officer's retention of defendant's driver's license constituted

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arrived, Shaw told Brown again that he was not under arrest,

and, although Brown's identification remained in the custody of

the police, Shaw again obtained Brown's consent to go to the

police station. En route, Brown also consented to a "show up"

at Fred Lynn Middle School, and thereafter he again expressly

consented to go to the police station for questioning. Brown's

consent to further questioning was properly obtained, because

the seizure was supported by reasonable suspicion. See Terry,

392 U.S. at 22; Thomas, 16 Va. App. at 857-58, 434 S.E.2d at 323

(because suspect's initial detention was supported by reasonable

suspicion, his participation in a show up and in further

questioning at the police station were authorized by his consent

"to those limited intrusions upon his personal

liberties . . ."); see also Greene v. Commonwealth, 17 Va. App.

606, 610, 440 S.E.2d 138, 140-41 (1994) ("Acquiescence in a

police request, which most citizens will do, does not negate the

consensual nature of the response.").

Within fifteen minutes of the commencement of the

questioning at the police station, Detective Hayhurst obtained

sufficient information to establish probable cause to arrest

Brown for the crimes charged. Brown was consequently arrested

and charged with the crimes at issue in this appeal; the

unlawful seizure of defendant's person, because officer lacked
reasonable suspicion to detain defendant).

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subsequent search and seizure of his body fluids and hair were

permissible adjuncts of a search incident to arrest. See

Commonwealth v. Gilmore, 27 Va. App. 320, 327, 498 S.E.2d 464,

468 (1997) ("One of the established exceptions to the Fourth

Amendment's warrant requirement is for a search incident to a

lawful arrest." (citing United States v. Robinson, 414 U.S. 218,

224 (1973))). The trial court, therefore, did not err in

denying Brown's motion to suppress this evidence.

SEARCH OF BROWN'S HOME

Brown contends that a security search of his home made by

the police prior to the issuance of a search warrant was

unlawful and that the court erred by refusing to suppress

evidence deriving from that search. We assume without deciding

that the search was unlawful, but hold the evidence recovered

from the house was admissible because it did not result from the

security search.

Officers Kohl and Muller went to Brown's home at 8:15 p.m.

on July 7, 1998. Brown's wife, Dewanna Brown, answered the

door, and the officers asked if they could come in. After

entering the house, the officers advised Mrs. Brown that the

house was a potential crime scene and that a detective was then

obtaining a search warrant. They told her she would have to

leave the house and could not go upstairs unaccompanied while

she remained in the house. They waited with her for

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approximately one hour until a friend came to get her. While

they waited, the officers conducted a security sweep of the

house to check for the presence of other persons or evidence

that might be easily destroyed. No evidence was found or seized

during this protective sweep. The search warrant was obtained

at 11:32 p.m. The warrant was executed at 2:00 a.m. on July 8,

1998, and the police seized three metal buttons, a Bic pen, a

lid to the pen, and a bedspread.

"[E]vidence will not be excluded as 'fruit' [of the

poisonous tree] unless the illegality is at least the 'but for'

cause of the discovery of the evidence. Suppression is not

justified unless 'the challenged evidence is in some sense the

product of illegal government activity.'" Segura v. United

States, 468 U.S. 796, 815 (1984). Evidence is not tainted as

"fruit of the poisonous tree" if there is no "poisonous tree."

Here, the evidence challenged by Brown was discovered upon the

execution of a duly issued search warrant, not as the result of

the "protective sweep" conducted by the police before the

warrant was issued.

SUFFICIENCY OF THE EVIDENCE TO PROVE ATTEMPT TO
ABDUCT WITH INTENT TO DEFILE

Brown contends the evidence at trial was insufficient to

prove he attempted to abduct J.M. with the intent to defile. He

bases his contention on the fact that "[t]he sole evidence

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introduced on this charge was that the defendant had grabbed the

victim and attempted to pull her into his residence."

Because we find grounds to reverse the case
on the basis of [the court's failure to
dismiss a juror for cause] and remand the
case for a new trial, we address [the
defendant's] claim that the Commonwealth
failed to present sufficient evidence of his
attempt to [abduct with intent to defile].
If the evidence adduced at trial was
insufficient to convict [the defendant], he
is entitled to an acquittal [on that
charge]; if he is so entitled, a remand for
retrial would violate the Constitution's
prohibition against double jeopardy.

Parsons v. Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 810,

812 (2000). "[A] full sufficiency analysis is required to

satisfy the mandate of the Double Jeopardy Clause of the federal

Constitution." Id. (citing Burks v. United States, 437 U.S. 1

(1978)); see Timbers v. Commonwealth, 28 Va. App. 187, 202, 503

S.E.2d 233, 240 (1998).

When sufficiency of the evidence is challenged on appeal,

the judgment of the trial court is presumed correct. See

Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384,

387 (1991). We consider the evidence in the light most

favorable to the Commonwealth, discarding all evidence offered

by the accused that conflicts with that of the Commonwealth, and

grant to the Commonwealth all inferences reasonably deducible

from the evidence. See Norman v. Commonwealth, 2 Va. App. 518,

520, 346 S.E.2d 44, 45 (1986). "A trial court's judgment

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approving a jury verdict is entitled to great weight on appeal

and will not be disturbed unless it is contrary to the law or

plainly wrong." Gray v. Commonwealth, 233 Va. 313, 344, 356

S.E.2d 157, 174, cert. denied, 484 U.S. 873 (1987).

To prove attempt, the Commonwealth must show 1) an intent

to commit the crime, and 2) some direct, but ineffectual, act

toward its commission sufficient to amount to the commencement

of the consummation of the crime. See Haywood v. Commonwealth,

20 Va. App. 562, 565, 458 S.E.2d 606, 607-08 (1995). "'Intent

is the purpose formed in a person's mind which may, and often

must, be inferred from the facts and circumstances in a

particular case.' The state of mind of an accused may be shown

by his conduct . . . ." Hughes v. Commonwealth, 18 Va. App.

510, 519, 446 S.E.2d 451, 457 (1994) (en banc) (citations

omitted).

In this case, Brown's intent to abduct and "defile" J.M.

may fairly be inferred from the evidence that he had just

abducted, raped, and sodomized Y.W. at the time he told Y.W. to

call J.M. to the door of his house. When J.M. approached the

door, where Brown held a knife to Y.W.'s back, Brown attempted

to seize J.M. by the strap of her bib shorts and pull her

inside. Such circumstantial evidence suffices to show intent.

Brown's act of grabbing J.M.'s shoulder strap also constituted a

direct, ineffectual act toward the completion of the crime of

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abduction, an act that failed only because the strap broke and

J.M. was able to flee. Thus, the jury had sufficient evidence

to conclude that Brown attempted to abduct J.M. with the intent

to defile, and the jury's conclusion was not plainly wrong. A

new trial will not violate the Constitution's Double Jeopardy

Clause. See Parsons, 32 Va. App. at 581, 529 S.E.2d at 812.

DENIAL OF BROWN'S JURY INSTRUCTIONS "D" AND "E"

Although we must consider a challenge to sufficiency of the

evidence when we reverse on other grounds, we need not examine

the propriety of proposed jury instructions in such a

circumstance. "In a case where a new trial is awarded [on other

grounds] . . . [if] after a mature consideration of the

questions dealing with the various [jury] instructions, we have

an abiding conviction that no error was committed, a seriatim

discussion is wholly unnecessary." Abdell v. Commonwealth, 173

Va. 458, 476, 2 S.E.2d 293, 300 (1939). We find no evidence to

support an instruction to the jury on either attempted rape or

attempted forcible sodomy, and hold the trial court's refusal to

give Brown's proposed jury instructions was appropriate.

For the reasons stated in this opinion, we reverse the

convictions and remand for a new trial if the Commonwealth be so

advised.

Reversed and remanded.

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