COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
TOMMIE HAYWOOD, JR.
v. Record No. 0401-94-1 OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA JULY 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Nelson T. Overton, Judge
Charles E. Haden for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Tommie Haywood, Jr. appeals his bench trial convictions of
two counts of attempted capital murder of a police officer based
upon his acts of driving his vehicle through two roadblocks. We
hold that the evidence was insufficient to prove the specific
intent required to convict Haywood of the attempted willful,
deliberate, and premeditated killing of the two police officers
and reverse his convictions.
Near dusk on April 21, 1993, after drinking heavily, Haywood
hauled his boat behind his truck to a Hampton city park where he
intended to go boating. However, Haywood was frustrated in his
attempt to get his boat into the water. About the same time,
another boater, Wolkowich, and his family were taking their boat
out of the water.
Upon hearing Haywood use profanity, Wolkowich told Haywood
to watch his language in front of children. Haywood became
belligerent and, arguing with Wolkowich, took a baseball bat out
of his truck and hit the hood of Wolkowich's vehicle. Haywood
then got in his truck and sped off toward the park exit pulling
his boat. Wolkowich promptly called the police on his cellular
phone.
Several Hampton police officers were near the park and
responded to the call. The first officer saw Haywood driving at
a high rate of speed down the middle of the park road. The
officer realized Haywood was not slowing down and pulled his car
to the road side.
A second officer confronted Haywood only a short distance
down the park road by putting his vehicle in Haywood's path as
Haywood attempted to exit the park. Haywood was going about
fifty-five miles-per-hour and did not appear to be slowing down
despite the officer's roadblock. Realizing this, the officer
pulled his vehicle out of the way, narrowly avoiding a collision.
As if oblivious to the officer's roadblock, Haywood drove on
without slowing down.
Finally, a third officer in the vicinity saw Haywood
approaching at a high rate of speed. Flashing her headlights and
activating her siren and red lights, the officer stopped her
vehicle in her lane of travel with the front end aimed toward the
middle so that Haywood would know to stop. Again, Haywood failed
to slow down and the third officer took evasive action to avoid
being hit head-on.
Haywood kept driving with police cars in pursuit, but
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eventually wrecked his truck and trailer in a ditch. Haywood
abandoned his truck and ran to his home where he barricaded his
front door with a sofa. Police later gained entrance to
Haywood's home and arrested him after they found Haywood naked,
hiding under his waterbed.
Based on Haywood's near collisions with the second and third
officers, Haywood was indicted on and, in a bench trial, found
guilty of two counts of attempted capital murder of a police
officer.
Code § 18.2-31.6 states that the "willful, deliberate, and
premeditated killing of a law-enforcement officer . . . when such
killing is for the purpose of interfering with the performance of
his official duties" shall constitute capital murder. A person
cannot be guilty of an attempt to commit murder unless he has a
specific intent to kill. Merritt v. Commonwealth, 164 Va. 653,
661, 180 S.E. 395, 398 (1935).
"`An attempt to commit a crime is composed of two elements:
(1) The intent to commit it; and (2) a direct, ineffectual act
done towards its commission.'" Id. at 657, 180 S.E. at 397
(citation omitted). "Intent is the purpose formed in a person's
mind and may be, and frequently is, shown by circumstances. It
is a state of mind which may be proved by a person's conduct or
by his statements." Barrett v. Commonwealth, 210 Va. 153, 156,
169 S.E.2d 449, 451 (1969); see Nobles v. Commonwealth, 218 Va.
548, 551, 238 S.E.2d 808, 810 (1977). "[A] person is presumed to
intend the immediate, direct, and necessary consequences of his
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voluntary act." Nobles, 218 Va. at 551, 238 S.E.2d at 810.
"[W]hether the required intent exists is generally a question for
the trier of fact." Id.
In examining the issue in Merritt, which discussed both an
attempt and murder, the Supreme Court stated that "while a person
may be guilty of murder though there was no actual intent to
kill, he cannot be guilty of an attempt to commit murder unless
he has a specific intent to kill." 164 Va. at 660, 180 S.E. at
398.
A common example illustrating this principle is: "If
one from a housetop recklessly throw down a billet of
wood upon the sidewalk where persons are constantly
passing, and it fall upon a person passing by and kill
him, this would be by the common law murder. But if,
instead of killing, it inflicts only a slight injury,
the party could not be convicted of an assault with
intent to commit murder."
Id. at 660-61, 180 S.E. at 398.
"Where the substantive crime intended requires a
specific intent, though this intent does not in the
same sense as in the other case aggravate what is done,
still it adds a culpability which mere general
malevolence could not give. . . . When we say that a
man attempted to do a given wrong, we mean that he
intended to do it specifically; and proceeded a certain
way in the doing. The intent in the mind covers the
thing in full; the act covers it only in part.
* * * To commit murder, one need not intend to take
life; but to be guilty of an attempt to murder, he must
so intend. It is not sufficient that his act, had it
proved fatal, would have been murder."
Id. at 661, 180 S.E. at 398-99 (emphasis added); also see Hancock
v. Commonwealth, 12 Va. App. 774, 783, 407 S.E.2d 301, 306
(1991).
Therefore, the question in this case is not whether
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Haywood's acts might have resulted in the murder of the police
officers. Rather, the question is whether Haywood, while driving
his truck, formed the specific intent to use his vehicle as a
weapon for the unequivocal purpose of murdering the police
officers.
In finding Haywood guilty of attempted capital murder of the
police officers, the trial judge stated:
Under this evidence it can be inferred that at the same
time but in tandem [Haywood] reached a conclusion that
he was going to run over whoever was in front of him.
First it was Corporal Fullman and then Officer Bowman.
The trial judge inferred from Haywood's acts that he intended to
kill the police officers. However, Haywood's convictions were
based solely on circumstantial evidence and, therefore, all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence. Behrens v. Commonwealth, 3 Va. App.
131, 137, 348 S.E.2d 430, 433 (1986). Here, while the evidence
may support an hypothesis that Haywood acted with malice and
intended to run over or through anyone or anything that got in
his way, the Commonwealth's evidence failed to exclude another
reasonable hypothesis of Haywood's acts which, if true, would
exonerate him of the charges of attempted capital murder of the
police officers.
That Haywood, who was in trouble with the law, merely
attempted to run a roadblock to avoid apprehension is a
reasonable hypothesis of innocence which the Commonwealth's
evidence failed to exclude. At trial, Haywood testified that he
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fled from the park and drove at a high rate of speed because he
"was driving on a suspended driver's license and [] had been
drinking and [] was in ASAP and [] owned [his] own business []
didn't want to throw it all away." There was no evidence that
Haywood ever swerved or aimed his truck to hit the police cars
when they pulled out of his path or that he turned his truck
around in an attempt to hit the police cars after passing by
them.
"[W]here a fact is equally susceptible of two
interpretations one of which is consistent with the innocence of
the accused, [the trier of fact] cannot arbitrarily adopt that
interpretation which incriminates him." Corbett v. Commonwealth,
210 Va. 304, 307, 171 S.E.2d 251, 253 (1969). From the
Commonwealth's evidence, it is just as likely, if not more
likely, that Haywood attempted to avoid police apprehension by
driving toward their cars, indifferent to the consequences in
risking a collision, because he believed that he could crash
through any vehicle in his way or that the police would move out
of his way, which they did. Thus, because the Commonwealth
presented no direct evidence that Haywood in running the road
blocks intended to murder the police officers and because its
circumstantial evidence did not exclude a reasonable hypothesis
of innocence, we reverse Haywood's convictions.
Reversed.
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