Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 10, 2017
from the Circuit Court for Montgomery County No. 40700905
Jill Bartee Ayers, Judge.
Montgomery County jury convicted the Petitioner, Henry Thomas
Johnson, of premeditated first degree murder and aggravated
burglary. On appeal, this Court affirmed the sufficiency of
the convicting evidence. State v. Henry T. Johnson,
No. M2010-02452-CCA-R3-CD, 2012 WL 1071809, at *1 (Tenn.
Crim. App., at Nashville, Mar. 28, 2012), perm. app.
denied (Tenn. May 16, 2012). The Petitioner filed a
timely petition for post-conviction relief in which he
contended that he had received the ineffective assistance of
counsel at trial. After a hearing, the post-conviction court
denied the petition. On appeal, the Petitioner maintains his
contention, arguing that his trial counsel was ineffective
because his trial counsel failed to effectively cross-examine
multiple witnesses. After review, we affirm the
post-conviction court's judgment.
R. App. 3 Appeal as of Right; Judgment of the Circuit Court
Allan Thompson, Clarksville, Tennessee, for the appellant,
Henry Thomas Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Leslie
E. Price; Senior Counsel; Robert W. Wilson, Assistant
Attorney General; John W. Carney, Jr., District Attorney
General; and Arthur F. Bieber, Assistant District Attorney
General, for the appellee, State of Tennessee.
W. Wedemeyer, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr.,
W. WEDEMEYER, JUDGE
case arises from the shooting and killing of the victim,
Michael Zabik, on March 15, 2007. This Court summarized the
facts presented at the Petitioner's trial as follows:
The proof at trial revealed that around 7:30 p.m., Anthony
Thomas and Brian Spencer were at Brian's sister's
apartment at 101 B Chapel Street. The men heard a knock on
the front door and a "commotion" outside. The
sister asked who was at the door, and the victim, who lived
nearby, identified himself. Brian and Thomas heard someone
outside say, "I'm not going to keep telling you
about my shit." Brian recognized the voice as the
[Petitioner's]. Thereafter, the men heard a single
gunshot. Brian opened the door, and the victim "fell
in" the apartment. Brian saw someone run away but could
not identify the person because it was dark.
Walter Spencer, Brian's brother who lived next door at
101 A Chapel Street, heard the gunshot and went to his
sister's apartment to make sure she was okay. He saw the
victim lying on the floor "with a hole in his stomach,
" and he was moaning and bleeding. The men gathered
around and asked the victim who shot him. The victim replied,
"Kojack, " which was the [Petitioner's]
nickname. The sister called 911 to report the shooting, and
emergency medical services (EMS) and law enforcement
responded within minutes.
Agent Gregory Beebe, a narcotics agent with the Clarksville
Police Department Major Crimes Unit, was the first officer to
respond to the scene. He saw the victim lying just inside the
front door of the apartment. The victim was moaning and
rocking back and forth. Agent Beebe saw a red, wet spot in
the center of the victim's chest. Agent Beebe asked the
victim who shot him, and the victim said, "Kojack."
Detective David R. Galbraith arrived in time to hear the
victim name the [Petitioner] as his assailant.
When Montgomery County Emergency Medical Technician Larry
Nolan arrived at the apartment, he immediately noticed that
the victim was in critical condition. The victim had been
shot in the chest, lost a great deal of blood, and complained
of difficulty breathing. The EMS workers placed the victim in
the ambulance and transported him to the hospital. When they
neared the hospital, the victim's condition started
He became agitated and repeatedly said that he did not want
to die. As the ambulance pulled up to the hospital, EMS
workers performed chest compressions to try to increase the
victim's heart rate. Shortly after the victim was
transferred to the emergency room, he went into cardiac
arrest and died.
Medical Examiner Adele Lewis performed the autopsy of the
victim. She determined that the cause of death was a gunshot
wound to the torso; the bullet entered just below the left
nipple and traveled to the right, downward, and toward the
back of the body. The bullet fractured two ribs on the left
side and injured the liver and gall bladder. The bullet also
injured the vena cava, a major blood vessel that drains blood
from the abdomen. Dr. Lewis described the injury to the vena
cava as "more often th[a]n not a devastating
injury." She estimated that someone with that type of
injury could possibly remain conscious for "an hour or
Police examined the scene at 101B Chapel Street and the
victim's residence at 2112 North Ford Street, which were
approximately twenty to twenty-five yards from each other.
Detective Galbraith noticed that the victim's front door
had been kicked open; three partial shoe prints were left on
the door, and the door jamb was damaged. Testing revealed
that the shoe prints were made by the [Petitioner's]
shoes. Detective Galbraith said that the victim's
apartment appeared to have been "ransacked."
Police arrested the [Petitioner] the day after the shooting.
Lieutenant David Crockarell, one of the arresting officers,
noticed that the [Petitioner] had a "very fresh
haircut" and that the appellant's hair ...