Haywood v. Com., 0401-94-1

• Citation: 20 Va.App. 562,458 S.E.2d 606
• Decision Date: 05 July 1995
• Docket Number: No. 0401-94-1,0401-94-1
• Parties: Tommie HAYWOOD, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 606

458 S.E.2d 606

20 Va.App. 562

Tommie HAYWOOD, Jr. v. COMMONWEALTH of Virginia.

Record No. 0401-94-1.

Court of Appeals of Virginia Norfolk.

July 5, 1995.

Charles E. Haden, Hampton, for appellant.

Kathleen B. Martin, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and WILLIS and BRAY, JJ.

MOON, Chief Judge.

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 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 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...