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Johnson v. State

Court of Criminal Appeals of Tennessee, Nashville

March 1, 2017


          Assigned on Briefs January 10, 2017

         Appeal from the Circuit Court for Montgomery County No. 40700905 Jill Bartee Ayers, Judge.

         A 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.

         Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

          R. 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.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.



         I. Facts

          A. Trial

         This 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 "rapidly deteriorating."
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 two."
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 ...

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