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. 
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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, 
- 12 - 

 

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 
- 13 - 

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 
- 16 - 

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 
- 17 - 

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 
- 18 - 

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.