        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.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J AMES C URWOOD W ITT, J R., 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.1 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 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


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