IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY SESSION, 1998
FILED STATE OF TENNESSEE, ) January 15, 1998 ) No. 02C01-9703-CC-00122 Appellee ) Cecil Crowson, Jr. Appellate C ourt Clerk ) HARDIN COUNTY vs. ) ) Hon. C. Creed McGinley, Judge ROBERT ZANDI, ) ) (Second Degree Murder) Appellant )
For the Appellant: For the Appellee:
Richard W. DeBerry John Knox Walkup Asst. District Public Defender Attorney General and Reporter P. O. Box 663 Camden, TN 38320 Janis L. Turner Assistant Attorney General Criminal Justice Division Guy T. Wilkinson 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493
G. Robert Radford District Attorney General
John Overton Asst. District Attorney General Hardin County Courthouse Savannah, TN 38372
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Robert Zandi, appeals his conviction for second degree
murder following a jury trial in the Hardin County Circuit Court.1 On appeal, he
contends that the evidence was insufficient to convict him of this offense.
After a review of the record, we affirm the judgment of the trial court.
Background
Shortly after midnight on December 14, 1995, Virginia Hamm was awakened
by three gunshots from outside her mobile home. Looking outside her window, she
observed the appellant “hollering” and “cussing” at William “Andy” Hamm and Bobby
Plunk. Virginia and Andy Hamm were married, however, they had separated and
were living in separate mobile homes located on adjacent lots. The appellant
resided with his mother, Virginia Hamm. Johnny Gilmore, who was staying with
Andy Hamm, also heard the gunshots. Moments later, Gilmore observed the
appellant carrying a rifle “hollering and fussing and carrying on.” He then heard the
appellant state that he was going to kill “Andy [Hamm] and Bobby [Plunk].” With the
victim following, the appellant then returned to his mother’s residence. Inside,
Hamm told his wife that “Robert is going to have to leave because I can’t have any
friends because of him.” The appellant asked his mother if she agreed with Andy
and she replied that she did. Without hesitation, the appellant, who was in
possession of the rifle, fired one shot, striking the victim in the chest.2 The bullet,
fired from an approximate distance of eight feet, entered the appellant’s chest,
traversing the lungs, aorta and spinal cord. Frantically, Ms. Hamm attempted to
1 The appellant was indicted for prem editated first degree murder.
2 The rifle was identified as a 7.62 caliber, Norinco Arms, SKS assault rifle.
2 telephone “911.” However, her efforts were thwarted when the appellant pulled the
telephone line from the wall. The appellant, at this point, grabbed a .22 pistol and
fled the scene in his 1982 Pontiac Firebird. He was finally apprehended on May 1,
1996, when an officer with the Illinois Commerce Commission Police in Rock Island,
Illinois, stopped a commercial moving van for various violations relating to federal
and state interstate commerce regulations.
The appellant testified in his own defense at trial. His testimony revealed a
rather unconventional familial relationship. In 1967, August and Virginia Zandi
adopted the appellant, who was six years old. In 1976, Andy Hamm, who was
sixteen years old, came to live in the Zandi household as a foster child. The
appellant was fourteen years old at this time. Sometime thereafter, the relationship
between Virginia Zandi and Andy Hamm became sexual. When Andy Hamm was
eighteen years old, the two “cleaned out” the Zandi’s bank account and left town. In
1981, when the victim was twenty-one years old and Ms. Hamm was thirty-eight,
they were married. Because of his mother’s affair with Hamm, the appellant refused
to speak with his mother for approximately twelve years after their marriage.
However, at the time of the murder, the appellant had “come to an understanding”
with his mother and had been residing, on and off, with her for three years. Virginia
Hamm testified that the appellant had never accepted Hamm.
The appellant testified that the initial reason for the encounter between
himself and the victim was because Andy and Bobby were working on a truck and
making too much noise. He stated that it was after midnight and “Plunk had held
the throttle down for, I know, at least ten minutes, just flooring it” and he couldn’t
sleep. He related, however, that what he was really upset about was the death of
his father, August Zandi, on September 30, his recent job lay-off on August 30, and
“the last twenty years.” In acknowledging his actions, he explained, “I just blew up
and I lost control and I shot him.”
3 Based upon this evidence, the jury convicted the appellant of second degree
murder.
I. Sufficiency of the Evidence
In his only issue, the appellant contends that the evidence is insufficient, as a
matter of law, to support a conviction for second degree murder. However, he
concedes that the proof establishes that he is guilty of voluntary manslaughter. The
trial court charged the jury on both offenses and the jury found the appellant guilty of
second degree murder.
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in
determining whether “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, 317, 99 S.Ct. 2781, 2789 (1979). We do not reweigh or re-evaluate the
evidence and are required to afford the State the strongest legitimate view of the
proof contained in the record as well as all reasonable and legitimate inferences
which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
Questions concerning the credibility of witnesses, the weight and value to be
given to the evidence, as well as factual issues raised by the evidence are solved by
the trier of fact, not this court. Cabbage, 571 S.W.2d at 835. A guilty verdict
rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
4 A defendant challenging the sufficiency of the proof has the burden of
illustrating to this court why the evidence is insufficient to support the verdict
returned by the trier of fact in his or her case. This court will not disturb a verdict of
guilt for lack of sufficient evidence unless the facts contained in the record and any
inferences which may be drawn from the facts are insufficient, as a matter of law, for
a rational trier of fact to find the defendant guilty beyond a reasonable doubt. State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In this case, the appellant was convicted of second degree murder or the
“knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1995 Supp.). He
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY SESSION, 1998
FILED STATE OF TENNESSEE, ) January 15, 1998 ) No. 02C01-9703-CC-00122 Appellee ) Cecil Crowson, Jr. Appellate C ourt Clerk ) HARDIN COUNTY vs. ) ) Hon. C. Creed McGinley, Judge ROBERT ZANDI, ) ) (Second Degree Murder) Appellant )
For the Appellant: For the Appellee:
Richard W. DeBerry John Knox Walkup Asst. District Public Defender Attorney General and Reporter P. O. Box 663 Camden, TN 38320 Janis L. Turner Assistant Attorney General Criminal Justice Division Guy T. Wilkinson 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493
G. Robert Radford District Attorney General
John Overton Asst. District Attorney General Hardin County Courthouse Savannah, TN 38372
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Robert Zandi, appeals his conviction for second degree
murder following a jury trial in the Hardin County Circuit Court.1 On appeal, he
contends that the evidence was insufficient to convict him of this offense.
After a review of the record, we affirm the judgment of the trial court.
Background
Shortly after midnight on December 14, 1995, Virginia Hamm was awakened
by three gunshots from outside her mobile home. Looking outside her window, she
observed the appellant “hollering” and “cussing” at William “Andy” Hamm and Bobby
Plunk. Virginia and Andy Hamm were married, however, they had separated and
were living in separate mobile homes located on adjacent lots. The appellant
resided with his mother, Virginia Hamm. Johnny Gilmore, who was staying with
Andy Hamm, also heard the gunshots. Moments later, Gilmore observed the
appellant carrying a rifle “hollering and fussing and carrying on.” He then heard the
appellant state that he was going to kill “Andy [Hamm] and Bobby [Plunk].” With the
victim following, the appellant then returned to his mother’s residence. Inside,
Hamm told his wife that “Robert is going to have to leave because I can’t have any
friends because of him.” The appellant asked his mother if she agreed with Andy
and she replied that she did. Without hesitation, the appellant, who was in
possession of the rifle, fired one shot, striking the victim in the chest.2 The bullet,
fired from an approximate distance of eight feet, entered the appellant’s chest,
traversing the lungs, aorta and spinal cord. Frantically, Ms. Hamm attempted to
1 The appellant was indicted for prem editated first degree murder.
2 The rifle was identified as a 7.62 caliber, Norinco Arms, SKS assault rifle.
2 telephone “911.” However, her efforts were thwarted when the appellant pulled the
telephone line from the wall. The appellant, at this point, grabbed a .22 pistol and
fled the scene in his 1982 Pontiac Firebird. He was finally apprehended on May 1,
1996, when an officer with the Illinois Commerce Commission Police in Rock Island,
Illinois, stopped a commercial moving van for various violations relating to federal
and state interstate commerce regulations.
The appellant testified in his own defense at trial. His testimony revealed a
rather unconventional familial relationship. In 1967, August and Virginia Zandi
adopted the appellant, who was six years old. In 1976, Andy Hamm, who was
sixteen years old, came to live in the Zandi household as a foster child. The
appellant was fourteen years old at this time. Sometime thereafter, the relationship
between Virginia Zandi and Andy Hamm became sexual. When Andy Hamm was
eighteen years old, the two “cleaned out” the Zandi’s bank account and left town. In
1981, when the victim was twenty-one years old and Ms. Hamm was thirty-eight,
they were married. Because of his mother’s affair with Hamm, the appellant refused
to speak with his mother for approximately twelve years after their marriage.
However, at the time of the murder, the appellant had “come to an understanding”
with his mother and had been residing, on and off, with her for three years. Virginia
Hamm testified that the appellant had never accepted Hamm.
The appellant testified that the initial reason for the encounter between
himself and the victim was because Andy and Bobby were working on a truck and
making too much noise. He stated that it was after midnight and “Plunk had held
the throttle down for, I know, at least ten minutes, just flooring it” and he couldn’t
sleep. He related, however, that what he was really upset about was the death of
his father, August Zandi, on September 30, his recent job lay-off on August 30, and
“the last twenty years.” In acknowledging his actions, he explained, “I just blew up
and I lost control and I shot him.”
3 Based upon this evidence, the jury convicted the appellant of second degree
murder.
I. Sufficiency of the Evidence
In his only issue, the appellant contends that the evidence is insufficient, as a
matter of law, to support a conviction for second degree murder. However, he
concedes that the proof establishes that he is guilty of voluntary manslaughter. The
trial court charged the jury on both offenses and the jury found the appellant guilty of
second degree murder.
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in
determining whether “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, 317, 99 S.Ct. 2781, 2789 (1979). We do not reweigh or re-evaluate the
evidence and are required to afford the State the strongest legitimate view of the
proof contained in the record as well as all reasonable and legitimate inferences
which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
Questions concerning the credibility of witnesses, the weight and value to be
given to the evidence, as well as factual issues raised by the evidence are solved by
the trier of fact, not this court. Cabbage, 571 S.W.2d at 835. A guilty verdict
rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
4 A defendant challenging the sufficiency of the proof has the burden of
illustrating to this court why the evidence is insufficient to support the verdict
returned by the trier of fact in his or her case. This court will not disturb a verdict of
guilt for lack of sufficient evidence unless the facts contained in the record and any
inferences which may be drawn from the facts are insufficient, as a matter of law, for
a rational trier of fact to find the defendant guilty beyond a reasonable doubt. State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In this case, the appellant was convicted of second degree murder or the
“knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1995 Supp.). He
argues that the evidence supports only voluntary manslaughter which is defined as
“the intentional or knowing killing of another in a state of passion produced by
adequate provocation sufficient to lead a reasonable person to act in an irrational
manner.” Tenn. Code Ann. § 39-13-211(a)(1991).
When the evidence is conflicting, the jury must resolve these conflicts, under
proper instructions, and decide whether the homicide is murder or manslaughter.
Thus, in this case, it was for the jury to determine whether the killing of Andy Hamm
by the appellant occurred in a state of passion produced by provocation from the
“last twenty years” or whether the appellant simply meant to violently end a long-
standing hostility. The jury found the latter and the trial judge approved this verdict.
We agree. The record establishes, beyond a reasonable doubt, that the appellant
(a) unlawfully killed the victim and (b) did so knowingly.
Accordingly, we conclude, as a matter of law, that the evidence is sufficient to
support a finding by the jury that the appellant is guilty of second degree murder.
Tenn. R. App. P. 13(e).
5 The judgment of the trial court is affirmed.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
_______________________________ JOE B. JONES, Presiding Judge
______________________________ JOE G. RILEY, Judge