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Hamby v. State

Court of Criminal Appeals of Tennessee, Knoxville

August 25, 2014

ANNETTE TRAN HAMBY
v.
STATE OF TENNESSEE

Session June 24, 2014

Appeal from the Criminal Court for Bradley County No. M-10-739 Carroll L. Ross, Judge

R. Wylie Richardson, Cleveland, Tennessee, for the appellant, Annette Tran Hamby.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Steven Bebb, District Attorney General; and A. Wayne Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Joseph M. Tipton, P.J., and Robert W. Wedemeyer, J., joined.

OPINION

D. KELLY THOMAS, JR., JUDGE

FACTUAL BACKGROUND

The Petitioner appealed her first degree murder conviction, and this court affirmed the conviction and summarized the facts of the case as follows:

This case relates to the June 10, 2007, shooting death of Jerry Burris, which occurred at the hands of his cousin, the [Petitioner], at the [Petitioner]'s Bradley County home. Bradley County Sheriff's Deputy Kristi Barton testified at trial that she pulled into the [Petitioner]'s driveway behind Deputy Jody Musselwhite, who left his vehicle and ran to the victim. She said a man standing on the residence's porch informed her that he had put the gun away and pointed upwards. She stated that when she looked up, she saw a gun lying sideways in the porch rafters.
Deputy Barton testified that she entered the home and found the [Petitioner] sitting calmly in a chair with a cigarette in one hand and a telephone in the other. She said she instructed the [Petitioner] to hang up the phone and put out her cigarette, but the [Petitioner] instead handed the phone to her. Deputy Barton stated that she discovered her dispatcher on the other end of the line, informed him that she was on the scene, and again told the [Petitioner] to put out her cigarette. She said that as she was escorting the [Petitioner] to an ashtray, the [Petitioner] spontaneously announced, "I shot that son-of-a-bitch, " and, as she was handcuffing her, protested: "I shot him. These ain't necessary. I don't need these cuffs. I'm not hiding from it. I'm not running from it. I told you I did it."
Deputy Barton testified that as she and the [Petitioner] walked past the victim, the [Petitioner] turned around and yelled to the emergency medical personnel, "Don't try to save him. He deserves to die. Don't try to save him." She said the [Petitioner] continued her spontaneous comments during the twenty-minute trip to the criminal justice center, saying, "I shot him. I shot that son-of-a-bitch; I shot him; hope he's dead." She said the [Petitioner] kept asking her if the victim was dead and when she finally replied yes, the [Petitioner] commented, "Thank the Lord."
Deputy Barton characterized the [Petitioner]'s non-stop talk during the trip to the justice center as "babbling, " testifying that the [Petitioner] continually repeated that she had shot the victim, that she meant to do it, that she was thankful he was dead, and that she had shot him because he had killed her mother. She clarified, however, that the [Petitioner]'s speech was not slurred and that her words made sense in the context in which they were uttered. She said that she could smell alcohol on the [Petitioner]'s breath but that the [Petitioner] was able to stand, walk, and put out her cigarette in a normal fashion, neither staggering nor fumbling in her actions.
Deputy Barton testified that as she and the [Petitioner] were walking into the justice center, the [Petitioner] told her that she would "get off" because she had been to Moccasin Bend Mental Health Institute and could prove she was crazy. She stated that she was present during Detective Hernandez's interview with the [Petitioner] and that the [Petitioner] said in the interview that her father would be next and that she should have shot him first. On cross-examination, Deputy Barton acknowledged that the [Petitioner] made no attempts to flee or hide, commented after learning the victim was dead that her mother could now rest in peace, told the officers that her father had beaten both her mother and herself, and expressed anger toward the victim.
Linda Ballew, a paramedic with Bradley County Ambulance Service, testified that the victim was already dead when she arrived. She stated as she began her evaluation of the victim, the [Petitioner], who was being escorted to a patrol car, announced that she had killed the victim and that he had killed her mother. According to Ballew, the [Petitioner] used an obscenity to refer to the victim, spoke clearly, and exhibited no difficulty walking. On cross-examination, she agreed that the [Petitioner] appeared angry.
Detective Scotty Hernandez of the Bradley County Sheriff's Department testified that he interviewed the [Petitioner] at the justice center on June 10, 2007. He stated that the [Petitioner] told him that the victim had harmed her mother years ago and had to pay. The [Petitioner] then related the following: that she planned to shoot the victim when he returned from a trip to the lake with the [Petitioner]'s husband; that she retrieved a gun from the residence when she saw the victim walking up the driveway; that she went outside and waited until the victim got closer; that she closed the distance in order not to miss; that she said to the victim, "You killed my mother and now I'm going to kill you, you son-of-a-bitch"; and that she then shot the victim. Detective Hernandez testified that the [Petitioner] told him that after the victim was on the ground, she walked back into the house and called 9-1-1.
On cross-examination, Detective Hernandez acknowledged that the [Petitioner] expressed anger toward both the victim and her father during the interview. He also acknowledged the [Petitioner] related an incident that occurred several years earlier in which the victim had struck the [Petitioner]'s mother in the head. He said the [Petitioner] also told him that her father had abused both her mother and herself. He stated that he did not perform a blood-alcohol concentration test on the [Petitioner] because he did not think it necessary, testifying that although he could smell that the [Petitioner] had been drinking, "she was able to speak clearly, walk under her own power, perform motor skills, write her name, remember dates, remember times."
Tennessee Bureau of Investigation (TBI) Special Agent Forensic Scientist Laura Hodge testified that elements of gunshot residue were present on the [Petitioner]. TBI Special Agent Forensic Scientist Shelly Betts, an expert in firearms identification, testified that the weapon involved in the case was a Ruger, single-action, .44 Magnum revolver. She said that in order to fire a single-action revolver, one has "to first manually cock or thumb back the hammer" before squeezing the trigger.
Ross McNabb, the [Petitioner]'s father, testified in the [Petitioner]'s behalf. He said that approximately twelve years earlier, the victim threw a concrete duck at him after becoming angry at something he said. He said the duck missed him but struck his wife, the [Petitioner]'s mother, in the head. He testified that his wife was in a coma for approximately two weeks after the incident, remained hospitalized for four months, and sustained permanent brain damage as a result of the injury. He said that during the two years that elapsed before her death, the [Petitioner] helped him care for her by giving her baths and attending to her personal grooming. He stated that, in his opinion, the victim was responsible for his wife's death.
Robert Wayne Hamby, the [Petitioner]'s husband, testified that on the day of the shooting, he was outside on the swing and had cleaned and reloaded his revolver, when he saw the victim approaching the house with the victim's girlfriend, Colleen Bryant. He said he hid the gun in the cushion because the victim was a thief. He stated that the victim asked to borrow his car dolly and he refused but that the victim kept hanging around the house. He testified that he finally asked the victim to accompany him on his boat because he knew that the [Petitioner] did not like the victim and he wanted to get the victim away from the house.
Hamby testified that he and the victim returned home approximately two hours later. He said he had dropped the victim at the end of the drive and was in the process of backing up his boat when he heard a crack, got out to see if he had run over anything, and then saw Bryant running up the road yelling that the [Petitioner] had just shot the victim. He stated that he ran to the house to find the victim lying on his back and the [Petitioner] inside calling 9-1-1. He described the [Petitioner] as having the look of a wounded animal and said ...

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