State of Tennessee v. Ricky Lee Womac - concurring and dissenting

07/30/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 29, 2020
STATE OF TENNESSEE v. RICKY LEE WOMAC
Appeal from the Circuit Court for McMinn County
No. 16CR181 Andrew Mark Freiberg, Judge
No. E2019-00643-CCA-R3-CD
ROBERT H. MONTGOMERY, JR., J., concurring in part and dissenting in part.
I dissent from the majority’s conclusion that the evidence is sufficient to support the
Defendant’s conviction in Count Two of attempted first degree murder of Deputy
Presswood. In my view, the evidence does not show that the Defendant took a substantial
step toward killing Deputy Presswood. See T.C.A. § 39-12-101(a)(3) (2018) (criminal
attempt). Viewed in the light most favorable to the State, the evidence shows that while
standing in a Walmart checkout aisle, the Defendant looked over his left shoulder and saw
Deputies Presswood and Redrup, who were in uniform, approaching him. Deputy Redrup,
who was wearing a body camera, stepped to the Defendant’s right side and advised him
that he was being arrested, and Deputy Presswood stood behind the Defendant. After some
discussion with Deputy Redrup about the Defendant’s desire to purchase a drink, the
Defendant put money that was in his hand into his pocket, produced a loaded gun with his
left hand, and pointed the gun at Deputy Redrup. By the time the Defendant pointed the
gun at Deputy Redrup, the hammer was cocked, and the Defendant had his finger on the
trigger. The struggle for the gun and to take the Defendant into custody ensued, during
which Deputy Redrup forced the web of his left hand into the gun’s breach in order to
thwart any attempt by the Defendant to pull the trigger and fire the gun. The gun’s hammer
was released, catching and injuring Deputy Redrup’s hand but preventing the gun from
discharging. During the struggle, Deputy Redrup was the first officer to engage with the
Defendant, who had turned to his right toward Deputy Redrup during the initial struggle
for the gun. Deputy Presswood first attempted to assist in restraining and disarming the
Defendant while standing behind Deputy Redrup and later moved to the Defendant’s side.
The Defendant fought against the deputies’ efforts to restrain him and held onto the gun
while Deputy Redrup kept his hand in the gun’s breach until a third deputy, who was in
civilian clothing, joined the struggle and struck the Defendant.
From these facts, I conclude that the evidence does not show that the Defendant
took a substantial step toward the commission of the first degree murder of Deputy
Presswood. In concluding otherwise, the majority has not identified any action the
Defendant took toward an attempt to kill Deputy Presswood which is distinct from the
evidence of the attempt to kill Deputy Redrup.
I note that our first degree murder statute permits a felony murder conviction based
upon a killing or an attempted killing of one person which results in the death of another.
See id. § 39-13-202 (2014) (subsequently amended). In the present case, the Defendant
was charged with attempted premeditated murder of Deputy Presswood. Attempted felony
murder was not a charging alternative available to the State. See State v. Kimbrough, 984
S.W.2d 888, 889-92 (Tenn. 1996); see also State v. Dickson, 413 S.W.3d 735, 747 (Tenn.
2013). I acknowledge that a defendant who intends to kill one person but whose actions
result in the death of another may be convicted of first degree premeditated murder because
his conscious objective was to kill a person, without regard to the identity of the person
actually killed. Millen v. State, 988 S.W.2d 164, 168 (Tenn. 1999). In the present case,
Millen is inapplicable because the Defendant successfully targeted his intended victim –
Deputy Redrup – by attempting to shoot him, thereby committing attempted first degree
murder. This is not a case in which the Defendant targeted an intended victim but, due to
intervening forces or mistake, committed the crime against an unintended victim.
The majority speculates that the Defendant would have shot both deputies in order
to avoid being taken into custody, had the deputies failed in restraining and disarming him.
However, opportunity does not equate to intent, and speculation does not equate to proof
beyond a reasonable doubt. My review of the evidence in the light most favorable to the
State shows that Deputy Redrup advised the Defendant that he was taking the Defendant
into custody, and the Defendant reacted by brandishing a gun at Deputy Redrup. Deputy
Presswood was, at this point, standing behind the Defendant and not involved in the
exchange. Deputy Presswood became actively involved after the Defendant produced the
gun, pointed it at Deputy Redrup, and the struggle ensued. Although the Defendant
struggled with Deputy Presswood during the affray, my review of the Walmart surveillance
footage and the body camera footage does not reveal any additional action or statement of
the Defendant which indicated an intent to kill Deputy Presswood beyond his initial
pointing the gun at Deputy Redrup, pulling the trigger, and the Defendant’s struggling to
extricate himself and to avoid arrest. Given the absence of evidence that the Defendant
had an intent to kill two people and took a substantial step toward a killing as to each of
them, and given the conviction in Count 1 of attempted first degree murder of Deputy
Redrup, I conclude that the evidence is insufficient to support the conviction in Count 2 of
attempted first degree murder of Deputy Presswood.
Relative to the charge of attempted first degree premeditated murder of Deputy
Presswood, the jury was instructed on the lesser included offenses of attempted second
-2-
degree murder and attempted voluntary manslaughter. My review of the elements of these
offenses and the facts of this case, however, lead me to conclude that a rational jury could
not find the Defendant guilty of either of these lesser included offenses. Again, the
evidence viewed in the light most favorable to the State does not show that the Defendant
took a substantial step toward the killing of Deputy Presswood, separate from his pointing
a loaded and cocked gun at Deputy Redrup when Deputy Redrup advised the Defendant
that he was being arrested, pulling the trigger and releasing the hammer while Deputy
Redrup had his hand in the gun’s breach, and struggling with the officers as they subdued
him and took him into custody.
That said, the State was not without recourse in charging the Defendant with a crime
relative to his actions as they involved Deputy Presswood. In my view, the facts as they
were developed at the trial would have supported a charge of aggravated assault of Deputy
Presswood. See T.C.A. § 39-13-102 (2014) (subsequently amended). However, the
Defendant was not charged with aggravated assault. I note, as well, that as indicted in this
case, aggravated assault is not a lesser included offense of attempted first degree murder
and was properly omitted from the jury charge. See id. § 40-18-110(f) (2012)
(subsequently amended).
Because I believe the evidence is insufficient for the Defendant’s conviction for
attempted first degree murder of Deputy Presswood, I would vacate the conviction and
dismiss the charge. In all other respects, I concur in the majority opinion.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
-3-