IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 14, 2011

STATE OF TENNESSEE v. HENRY T. JOHNSON

Direct Appeal from the Circuit Court for Montgomery County

No. 40700905 John H. Gasaway, III, Judge

No. M2010-02452-CCA-R3-CD - Filed March 28, 2012

A Montgomery County Circuit Court Jury convicted the appellant, Henry T. Johnson, of first

degree premeditated murder and aggravated burglary. The trial court imposed concurrent

sentences of life imprisonment in the Tennessee Department of Correction for the first degree

murder conviction and three years for the aggravated burglary conviction. On appeal, the

appellant challenges the sufficiency of the evidence sustaining his conviction for first degree

murder, arguing that the State failed to prove premeditation. Upon review, we affirm the

judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and

JAMES CURWOOD WITT, JR., JJ., joined.

Gregory D. Smith (on appeal) and Joel Wallace (at trial), Clarksville, Tennessee, for the

appellant, Henry T. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; John Wesley Carney, Jr., District Attorney General; and John Finklea and

Arthur Bieber, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The appellant was convicted of aggravated burglary and the premeditated first degree

murder of the victim, Michael Zabik, on March 15, 2007. The proof at trial revealed that

around 7:30 p.m., Anthony Thomas and Brian Spencer were at Brian’s sister’s apartment at
101B Chapel Street. The men heard a knock on the front door and a “commotion” outside.

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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 appellant’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 101A 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 appellant’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 appellant 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

Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to 1

utilize their first names. We mean no disrespect to these individuals.

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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 appellant’s shoes. Detective Galbraith said that the victim’s

apartment appeared to have been “ransacked.”

Police arrested the appellant the day after the shooting. Lieutenant David Crockarell,

one of the arresting officers, noticed that the appellant had a “very fresh haircut” and that the

appellant’s hair was “short . . . almost shaved.”

After waiving his Miranda rights, the appellant initially denied any knowledge of the

shooting. However, when he was advised that he had been identified as the shooter, the

appellant said that he shot the victim because the victim was “disrespecting” him. The

appellant said that he was homeless and that the victim allowed him to stay at the victim’s

apartment while he looked for a place to live. The appellant found a place but could not

move in until April. When the appellant started moving his belongings out of the victim’s

residence, he noticed that some of his things were missing. He confronted the victim, who

stated that he would get the items back for the appellant the following day. However, he

never did. The appellant said that on the day of the shooting, he went to the victim’s house

to get the rest of his belongings, including a PlayStation which he planned to sell to a friend.

The appellant said that the victim would not open the door, so the appellant kicked it open

to retrieve his belongings. The victim started calling the appellant derogatory names and

asserted that he would not give the appellant his PlayStation because the appellant had

damaged the door. The appellant told police, “It was disrespect to me. He act like he had

a gun like he was going to shoot me, but he was too slow, and then it happened.” The

appellant said the shooting happened after he and the victim walked to Chapel Street. The

appellant disclosed that he hid the gun under a shed behind a house on E Street. Police found

the rifle at the place the appellant described.

The appellant also told police that after the shooting, Angela Pittman picked him up

“near Royal King.” Pittman confirmed that the appellant asked her to pick him up at the end

of E Street and that the appellant spent the night at her residence. Pittman said the

appellant’s demeanor “was [the] same as always,” and he showed no indication that

something bad had happened. The appellant shaved his head while at Pittman’s house.

Police tested the appellant and his clothes for gunshot residue. No residue was found

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on the appellant’s clothes. Tennessee Bureau of Investigation (TBI) Agent Laura Hodge,

who analyzed the gunshot residue kit taken from the appellant, stated that the “[e]lements

indicative of gunshot residue were absent.” She explained that due to the fragility of gunshot

residue, “[t]hese results cannot eliminate the possibility the [appellant] could have fired,

handled or was near a gun when it fired.” She stated that the results can be affected by the

length of time between the event and testing. The appellant’s hands were tested two and onehalf hours after the shooting, and his clothes were tested the day after the shooting.

Walter Spencer testified that on March 12 or 13, 2007, he was driving to the store with

his three children and the victim. The victim was riding in the passenger seat and the three

young children were in the backseat. As Walter turned onto E Street, the appellant waved

for Walter to stop the vehicle. The appellant approached the passenger side of the vehicle

and told the victim, “I want my shit or I’m going to kill you.” The victim responded, “I’m

not giving you anything.” Walter drove away, not wanting his children exposed to further

confrontation.

The appellant, who acknowledged that his nickname was “Kojack,” testified that on

the day of the shooting, he went to the victim’s home to retrieve some items he had stored

there until he could move into a new residence. The appellant removed some of his

belongings, including a rifle, from a shed behind the victim’s residence. Other items were

located in the residence, so the appellant went to the back door. The appellant knocked

several times, but there was no answer. The door was locked, and the appellant did not have

a key.

The appellant went around to the front door, taking his belongings with him. He

looked in the victim’s bedroom window and saw that the victim was sleeping. The appellant

knocked on the front door to rouse the victim, but the victim did not answer the door. The

appellant kicked the door, attempting to wake the victim, and the door “came open.” The

victim came to the door, asking why the appellant had kicked the door. The appellant replied

that it was an accident and that he would pay to have the door repaired. The appellant asked

the victim to go with him to retrieve the appellant’s DVD player and PlayStation that the

victim had “loaned out.”

The appellant and the victim started walking toward Chapel Street; the appellant was

carrying his rifle in his hand, pointing it downward. The appellant asked what was bothering

the victim, and the victim told the appellant that it was none of the appellant’s business. The

appellant replied, “I ain’t going to have you talking to me like of some kind of child.” The

appellant told the victim that he was upset that the victim had loaned his property in order

to get drugs without the appellant’s permission. The appellant said that the victim then

“ma[d]e a move” and that the appellant threw up his hand to avoid being hit in the face. The

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victim hit the appellant’s arm, causing the appellant to lose his grip on the rifle. The

appellant’s finger accidentally caught the trigger, and the rifle fired. The victim grabbed his

left side, and the appellant ran away. The appellant said that he felt bad and that he did not

intend to shoot the victim.

Sometime after the shooting, the appellant asked someone whether a warrant had been

issued for his arrest, and he was told that he was wanted for homicide. The appellant said

that he “prepared for jail; I cut my braids off, because I knew I didn’t have no one to do my

hair [in jail.]” Shortly thereafter, the appellant was arrested.

The appellant said that he initially denied any knowledge of the shooting because he

was “a little confused.” He denied telling police that he shot the victim because the victim

disrespected him, explaining that he meant to say that the victim had been disrespectful by

loaning the appellant’s property without permission.

The appellant’s former mother-in-law, Patricia Mize, testified that the appellant was

a truthful person and that he took care of his children. Mize acknowledged that she was

unaware that the appellant owned a gun.

Based on the foregoing, the jury found the appellant guilty of first degree

premeditated murder and aggravated burglary. The trial court imposed an effective sentence

of life imprisonment. On appeal, the appellant challenges the sufficiency of the evidence

sustaining his first degree murder conviction.

II. Analysis

On appeal, a jury conviction removes the presumption of the appellant’s innocence

and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to

this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

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In order to convict the appellant of first degree premeditated murder, the State was

required to prove beyond a reasonable doubt that the appellant committed the “premeditated

and intentional killing of [the victim].” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation

“is an act done after the exercise of reflection and judgment” and “means that the intent to

kill must have been formed prior to the act itself. [However,] [i]t is not necessary that the

purpose to kill pre-exist in the mind of the accused for any definite period of time.” Id. at

(d). Although there is no concrete test for determining the existence of premeditation,

Tennessee courts have relied upon certain circumstances to infer premeditation. See State

v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). Specifically, the following factors have been

used to support a jury’s inference of premeditation: (1) the appellant’s prior relationship to

the victim which might suggest a motive for the killing; (2) the appellant’s declarations of

intent to kill; (3) the appellant’s planning activities before the killing; (4) the manner of the

killing, including the appellant’s using a deadly weapon upon an unarmed victim, killing the

victim while the victim is retreating or attempting escape, or killing the victim in a

particularly cruel manner; (5) the appellant’s demeanor before and after the killing, including

a calm demeanor immediately after the killing. See Pike, 978 S.W.2d at 914-915; State v.

Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Additionally, this court has suggested that facts

concerning the prior relationship between the appellant and the victim from which motive

could be inferred is indicative of premeditation. See State v. Gentry, 881 S.W.2d 1, 5 (Tenn.

Crim. App. 1993).

The appellant contends that the State failed to sufficiently prove premeditation. He

argues that in Tennessee, all homicides are presumed to be second degree murder. However,

in State v. Jackson, 173 S.W.3d 401, 406 (Tenn. 2005), our supreme court clarified that the

presumption was based upon common law. The court explained that following the revision

of the criminal statutes in 1989, “no presumption is engaged to place a killing within any of

the categories of criminal homicide” and that “the presumption is no longer applicable and

is, therefore, obsolete.” Id. at 407.

Moreover, we note that the State’s proof reflected that two or three days prior to the

shooting, the appellant threatened to kill the victim if the victim did not return the appellant’s

belongings. Immediately prior to the shooting, two witnesses heard a “commotion” during

which the appellant said, “I’m not going to keep telling you about my shit.” Thereafter, the

appellant shot the unarmed victim. The appellant told police that he shot the victim because

the victim was “disrespecting” him. Additionally, Pittman testified that the appellant did not

act differently after the shooting. We conclude that the evidence is sufficient to sustain the

appellant’s conviction of first degree premeditated murder.

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III. Conclusion

In sum, we conclude that there was sufficient evidence for the jury to convict the

appellant of first degree murder. Accordingly, we affirm the judgments of the trial court.

_________________________________

NORMA McGEE OGLE, JUDGE

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