         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 23, 2009

                  STATE OF TENNESSEE v. ANNETTE HAMBY
                        aka ANNETTE TRAN-MCNABB

                      Appeal from the Criminal Court for Bradley County
                             No. M-07-269   Carroll Ross, Judge



                    No. E2008-02030-CCA-R3-CD - Filed December 1, 2009


The Defendant, Annette Hamby, appeals as of right from her Bradley County jury conviction for first
degree premeditated murder. She contends that the evidence, which included proof of her
intoxication, was insufficient for the jury to find beyond a reasonable doubt that she premeditated
the crime. We affirm the judgment of the trial court.

      Tenn. R. App. P. Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and NORMA MCGEE OGLE , JJ., joined.

Charles Richard Hughes, Jr., District Public Defender (at trial), and John P. Fortuno, Assistant Public
Defender (on appeal), for the appellant, Annette Hamby aka Annette Tran-McNabb.

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

                                             OPINION

        This case relates to the June 10, 2007, shooting death of Jerry Burris, which occurred at the
hands of his cousin, the Defendant, at the Defendant’s Bradley County home. Bradley County
Sheriff’s Deputy Kristi Barton testified at trial that she pulled into the Defendant’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 Defendant sitting calmly in
a chair with a cigarette in one hand and a telephone in the other. She said she instructed the
Defendant to hang up the phone and put out her cigarette, but the Defendant 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 Defendant to put out her cigarette. She
said that as she was escorting the Defendant to an ashtray, the Defendant 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 Defendant walked past the victim, the Defendant
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 Defendant 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 Defendant kept asking her if the victim was dead and when
she finally replied yes, the Defendant commented, “Thank the Lord.”

        Deputy Barton characterized the Defendant’s non-stop talk during the trip to the justice center
as “babbling,” testifying that the Defendant 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 Defendant’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 Defendant’s breath but that the Defendant 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 Defendant were walking into the justice center,
the Defendant 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 Defendant and that the Defendant 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 Defendant 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
Defendant, 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 Defendant used an obscenity to refer to the
victim, spoke clearly, and exhibited no difficulty walking. On cross-examination, she agreed that
the Defendant appeared angry.

        Detective Scotty Hernandez of the Bradley County Sheriff’s Department testified that he
interviewed the Defendant at the justice center on June 10, 2007. He stated that the Defendant told
him that the victim had harmed her mother years ago and had to pay. The Defendant then related
the following: that she planned to shoot the victim when he returned from a trip to the lake with the
Defendant’s husband; that she retrieved a gun from the residence when she saw the victim walking


                                                 -2-
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 Defendant 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 Defendant expressed
anger toward both the victim and her father during the interview. He also acknowledged the
Defendant related an incident that occurred several years earlier in which the victim had struck the
Defendant’s mother in the head. He said the Defendant 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
Defendant because he did not think it necessary, testifying that although he could smell that the
Defendant 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 Defendant. 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 Defendant’s father, testified in the Defendant’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 Defendant’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 Defendant 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 Defendant’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 Defendant 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 Defendant had just shot the victim. He stated that he ran to the house to find the


                                                 -3-
victim lying on his back and the Defendant inside calling 9-1-1. He described the Defendant as
having the look of a wounded animal and said that she was running in circles and “babbling” that
she had shot the victim and was glad but that she had not meant to shoot him.

        Hamby testified that the Defendant was an alcoholic and regularly took the mood
stabilization drug, Seroquel. He said she had been “drinking some” before the victim and his
girlfriend arrived at the house but was not drunk. He testified that he had seen the Defendant
intoxicated numerous times in the past and that when she was drunk, she frequently talked of her
childhood and wept for her mother. He stated that the Defendant received disability benefits for
mental issues, was “not the brightest bulb in the pack,” and sometimes exercised poor judgment.
However, in his opinion, she was not “crazy.”

       Hamby further testified that he found a prescription bottle of Oxycontin on the porch after
the shooting. He said that he took the bottle to the sheriff’s department but that officers told him it
was not relevant to their investigation. He claimed, however, that Bryant was an Oxycontin addict
and had been seen by the Defendant’s brother putting Oxycontin in the Defendant’s beer. On cross-
examination, Hamby repeated that the Defendant was not drunk at the time of the shooting.

       Alvin McNabb, the Defendant’s brother, testified that the Defendant began drinking at
approximately 9:30 a.m. on the day of the shooting. He stated that the victim and Bryant came to
the Defendant’s house at approximately 3:00 p.m. and that Hamby purchased the Defendant an
additional twelve-pack of beer before leaving for the lake with the victim. McNabb said that he left
the Defendant’s house at about 5:30 p.m., before the shooting occurred. He testified that the
Defendant blamed the victim for her mother’s death and became upset about her mother whenever
she drank alcohol.

        The forty-six-year-old Defendant testified that she was disabled with bipolar disorder and
schizophrenia, for which she had been prescribed Seroquel and Citalopram. She stated that she woke
in a foul mood on the day of the shooting, drank heavily all day, and remained irritated and upset
throughout the day. She said she was angry that her brother brought Bryant and the victim to her
house and explained that she and the victim had been close before the 1995 incident with her mother
but that she did not like him afterward. She also claimed that the victim was trying to get her hooked
on methamphetamine and that his girlfriend kept “popping” hydrocodone pills and offering them to
her. She could not, however, remember if she had taken any hydrocodone on the day of the shooting.
She said that her anger toward the victim had been building for a long time but that she had not
planned to shoot him and had not known that the gun was on the swing until she sat on top of it.
Finally, she stated that she was just “fed up with everything” at the time she fired the shot. On cross-
examination, she acknowledged having told her husband in a telephone conversation after her arrest
that she was going to tell the police she could not remember what had happened.

         Dr. Troy Gilson, a psychiatrist who conducted a forensic evaluation of the Defendant,
testified as a rebuttal witness for the State that he had determined the Defendant to be competent to
stand trial and that an insanity defense could not be supported. He further testified that the


                                                  -4-
Defendant had been diagnosed in the past with bipolar “NOS” and alcohol and cannabis dependence,
but there was no record of her having ever been diagnosed with schizophrenia. On cross-
examination, he conceded that individuals with bipolar disorder can sometimes exhibit impaired
judgment.

        Detective Scotty Hernandez, recalled as a rebuttal witness by the State, testified that one to
two days after the shooting, Hamby brought him an Oxycontin bottle that he wanted collected as
evidence. He said that he refused to do so because, to his knowledge, there had not been any
prescription pill bottles at the scene of the shooting. Detective Hernandez also identified the audio
recording of the Defendant’s telephone conversation with her husband, which was subsequently
admitted as an exhibit. In the conversation, the Defendant stated that she hated the victim, planned
to plead not guilty by reason of insanity, and was going to tell the police that she could not remember
what had happened.

       The jury convicted the Defendant of first degree premeditated murder, and the trial court
sentenced her to life imprisonment.

        On appeal, the Defendant challenges the sufficiency of the convicting evidence, arguing “that
the record establishes a killing premised on anger, passion, prescription medication, and alcohol
rather than a premeditated and deliberate murder.” The State argues that the evidence is more than
sufficient to show premeditation. We agree with the State.

        Our standard of review when the sufficiency of the evidence is questioned on appeal is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence but presume that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in
favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Any questions about the credibility of the witnesses were resolved
by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       First degree murder is defined as the unlawful, premeditated, and intentional killing of
another. T.C.A. §§ 39-13-201, -202(a)(1) (2006). “Premeditation” is defined as

               an act done after the exercise of reflection and judgment.
               “Premeditation” means that the intent to kill must have been formed
               prior to the act itself. It is not necessary that the purpose to kill
               pre-exist in the mind of the accused for any definite period of time.
               The mental state of the accused at the time the accused allegedly
               decided to kill must be carefully considered in order to determine
               whether the accused was sufficiently free from excitement and
               passion as to be capable of premeditation.



                                                 -5-
Id. § 39-13-202(d). The element of premeditation is a question for the jury and may be established
by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d at 660. Our supreme
court has noted the following factors that demonstrate the existence of premeditation: the use of a
deadly weapon upon an unarmed victim, the particular cruelty of the killing, declarations by the
Defendant of an intent to kill, evidence of procurement of a weapon, preparations before the killing
for concealment of the crime, and calmness after the killing. Id. In addition, “[e]stablishment of a
motive for the killing is a factor from which the jury may infer premeditation.” State v. Leach, 148
S.W.3d 42, 54 (Tenn. 2004).

         We conclude that the evidence, viewed in the light most favorable to the State, was sufficient
to sustain the Defendant’s conviction for first degree premeditated murder. The Defendant appeared
calm immediately after the shooting, made spontaneous comments to a sheriff’s deputy and to a
paramedic that she had shot the victim because he had killed her mother, and expressed on two
separate occasions her belief that she would be able to claim insanity as a defense to the crime. She
also admitted in her formal statement that before the fatal shot was fired, she had planned to shoot
the victim, retrieved the weapon, waited for him to get close, moved closer to ensure the accuracy
of her shot, and informed him that she was going to kill him and her reason for doing so. In addition,
proof was presented that she would have had to cock the murder weapon in order for it to be fired.
Finally, several witnesses, including the Defendant’s own husband, testified that although the
Defendant had been drinking, she did not appear intoxicated at the time of the shooting. From all
of this evidence, a rational jury could have reasonably concluded that the Defendant premeditated
the killing.

                                          CONCLUSION

        Based on the foregoing and the record as a whole, we affirm the Defendant’s conviction for
first degree premeditated murder.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




                                                 -6-
