                                                                                          03/01/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 10, 2017

          HENRY THOMAS JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Montgomery County
                        No. 40700905      Jill Bartee Ayers, Judge
                        _____________________________
                              No. M2016-00820-CCA-R3-PC
                        _____________________________

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

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.

                                        OPINION

                                          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.”
                                            2
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 was “short . . .
almost shaved.”

       After waiving his Miranda rights, the [Petitioner] initially denied any
knowledge of the shooting. However, when he was advised that he had
been identified as the shooter, the [Petitioner] said that he shot the victim
because the victim was “disrespecting” him. The [Petitioner] 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 [Petitioner] found a
place but could not move in until April. When the [Petitioner] 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 [Petitioner] 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
                                      3
which he planned to sell to a friend. The [Petitioner] said that the victim
would not open the door, so the [Petitioner] kicked it open to retrieve his
belongings. The victim started calling the [Petitioner] derogatory names
and asserted that he would not give the [Petitioner] his PlayStation because
the [Petitioner] had damaged the door. The [Petitioner] 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 [Petitioner] said the
shooting happened after he and the victim walked to Chapel Street. The
[Petitioner] disclosed that he hid the gun under a shed behind a house on E
Street. Police found the rifle at the place the [Petitioner] described.

        The [Petitioner] also told police that after the shooting, Angela
Pittman picked him up “near Royal King.” Pittman confirmed that the
[Petitioner] asked her to pick him up at the end of E Street and that the
[Petitioner] spent the night at her residence. Pittman said the [Petitioner’s]
demeanor “was [the] same as always,” and he showed no indication that
something bad had happened. The [Petitioner] shaved his head while at
Pittman’s house.

        Police tested the [Petitioner] and his clothes for gunshot residue. No
residue was found on the [Petitioner’s] clothes. Tennessee Bureau of
Investigation (TBI) Agent Laura Hodge, who analyzed the gunshot residue
kit taken from the [Petitioner], 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
[Petitioner] 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 [Petitioner’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 [Petitioner] waved for Walter
to stop the vehicle. The [Petitioner] 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 [Petitioner], who acknowledged that his nickname was
                                      4
“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 [Petitioner] 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 [Petitioner] went to the back door. The [Petitioner]
knocked several times, but there was no answer. The door was locked, and
the [Petitioner] did not have a key.

       The [Petitioner] 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 [Petitioner] knocked on the front door to rouse
the victim, but the victim did not answer the door. The [Petitioner] kicked
the door, attempting to wake the victim, and the door “came open.” The
victim came to the door, asking why the [Petitioner] had kicked the door.
The [Petitioner] replied that it was an accident and that he would pay to
have the door repaired. The [Petitioner] asked the victim to go with him to
retrieve the [Petitioner’s] DVD player and PlayStation that the victim had
“loaned out.”

        The [Petitioner] and the victim started walking toward Chapel Street;
the [Petitioner] was carrying his rifle in his hand, pointing it downward.
The [Petitioner] asked what was bothering the victim, and the victim told
the [Petitioner] that it was none of the [Petitioner’s] business. The
[Petitioner] replied, “I ain’t going to have you talking to me like of some
kind of child.” The [Petitioner] told the victim that he was upset that the
victim had loaned his property in order to get drugs without the
[Petitioner’s] permission. The [Petitioner] said that the victim then “ma[d]e
a move” and that the [Petitioner] threw up his hand to avoid being hit in the
face. The victim hit the [Petitioner’s] arm, causing the [Petitioner] to lose
his grip on the rifle. The [Petitioner’s] finger accidentally caught the
trigger, and the rifle fired. The victim grabbed his left side, and the
[Petitioner] ran away. The [Petitioner] said that he felt bad and that he did
not intend to shoot the victim.

       Sometime after the shooting, the [Petitioner] asked someone whether
a warrant had been issued for his arrest, and he was told that he was wanted
for homicide. The [Petitioner] 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 [Petitioner] was arrested.

      The [Petitioner] said that he initially denied any knowledge of the
                                     5
       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
       [Petitioner’s] property without permission.

              The [Petitioner’s] former mother-in-law, Patricia Mize, testified that
       the [Petitioner] was a truthful person and that he took care of his children.
       Mize acknowledged that she was unaware that the [Petitioner] owned a
       gun.

             Based on the foregoing, the jury found the [Petitioner] guilty of first
       degree premeditated murder and aggravated burglary. The trial court
       imposed an effective sentence of life imprisonment.

Johnson, 2012 WL 1071809, at *1-4.

                                    B. Post-Conviction

       The Petitioner filed a timely petition for post-conviction relief, alleging in relevant
part that his trial counsel was ineffective because he failed to effectively cross-examine
multiple witnesses. At a hearing on the petition, the parties presented the following
evidence, as relevant to the issues maintained on appeal: The Petitioner testified that he
was concerned that the State presented evidence that the Petitioner intentionally killed
someone when he did not. He said that his attorney (“Counsel”) gained information from
discovery that corroborated his account of what had transpired between the Petitioner and
the victim. The Petitioner noted that multiple witnesses testified that the victim’s wound
was in his abdomen but that the evidence presented at trial showed that the bullet wound
was in the victim’s chest. The Petitioner opined that the victim’s wound being in his
abdomen, rather than his chest, showed that the killing was not intentional.

       The Petitioner complained that Counsel did not cross-examine Tennessee Bureau
of Investigation (“TBI”) Agent Hodge. He said that Counsel “really never sought to seek
the results or the documentation from these witnesses that he should have known would
have been testifying for the State.”

        During cross-examination, the Petitioner conceded that at trial multiple witnesses
testified that the victim stated that “Kojack” had shot him. The Petitioner said that
Detective Charvis never interviewed him and that he never gave the detective a statement
with regard to this shooting. The Petitioner agreed that he had testified to the jury that
the shooting was accidental.

                                              6
       TBI Agent Laura Hodge testified that she did not recall Counsel speaking with her
about this case before trial. She said that she routinely spoke with defense attorneys
regarding her scientific findings. During cross-examination, Agent Hodge testified that a
“low percentage,” maybe five percent, of defense attorneys sought to interview her before
trial.

      Linda Littlejohn, a witness who testified at trial, testified that she did not recall
speaking with Counsel before the Petitioner’s trial.

      Elizabeth Reid, a State witness at trial, testified that she did not speak with
Counsel before the trial. During cross-examination she testified that she spoke with
defense attorneys before trial in less than five percent of the cases in which she testified.

       James Russell Davis, a State’s witness at trial, testified that he did not recall
speaking with Counsel before trial. During cross-examination, Agent Davis testified that
he rarely spoke with either the prosecutor or defense counsel before trial.

       Counsel testified that the defense theory of the case was either that the Petitioner
had shot the victim accidentally or in self-defense. Counsel said he did not recall the
distinction between whether the gunshot wound was to the victim’s abdomen or chest.
Counsel said he did investigate the path of the bullet. He agreed that this information
would have been “[p]ossibly” important if the Petitioner and the victim were involved in
a struggle. He agreed that he could have questioned the doctor who performed the
autopsy about this information. He also agreed that he could have asked TBI Agent
Scott, a gun expert, hypothetical questions before trial and during the trial regarding the
distance the gun may have been from the victim.

        Counsel said that he thought that the evidence showing that the victim had
marijuana had been presented to the jury. He said he believed that the medical examiner
testified about that. Counsel said that he did not contact any of the TBI agents who
testified before trial to ask them hypothetical questions. He said he also did not request
that the victim’s clothing, other than his shirt, be tested for gun powder residue.

       Counsel agreed that the Petitioner wrote him letters before trial and that, in some,
he expressed concerns about the location of the gunshot wound. Counsel said that the
defense theory presented to the jury was that the shooting was an accident and that he
relied heavily on the Petitioner’s testimony to support this theory.

       During cross-examination, Counsel testified that he knew before trial that one of
the victim’s neighbors intended to testify that the Petitioner had threatened to kill the
victim three days before the shooting. He pointed out to the Petitioner that the
                                             7
Petitioner’s statement that the shooting was accidental conflicted with this witness’s
testimony. Counsel said that the most difficult aspect of this case was attempting to get
the Petitioner to maintain a consistent statement. Counsel opined that the location of the
bullet wound and the bullet’s path while inside the victim did not prove whether the
shooting was committed by accident or with premeditation.

      During redirect examination, Counsel agreed that any evidence of a struggle
between the Petitioner and the victim could have been relevant.

       During recross examination, Counsel testified that the State gave him the autopsy
report before trial. He reviewed that report and did not find any evidence that the victim
had defensive wounds.

       The post-conviction court took the matter under advisement and then issued an
order denying the Petitioner post-conviction relief. The order addressed each of the
issues raised by the Petitioner. On appeal, the Petitioner maintains only that Counsel
failed to effectively cross-examine the medical expert witnesses. About that issue, the
post-conviction court found:

            Failure to Cross-Examine Witnesses Adequately or Speak with
      Witnesses Before Trial

             In an issue related to those stated earlier, the [P]etitioner argues
      [Counsel] inadequately cross-examined witnesses, particularly Detective
      Charvis and Agents Hodge and Scott. Accordingly, the [P]etitioner argues,
      “Very little science was developed by the defense” and trial counsel’s
      failings left the jury with very little evidence which could have supported a
      verdict on a lesser offense.

              While the trial record reflects [Counsel] cross-examined several
      witnesses briefly or not at all, the [P]etitioner has not presented any
      evidence suggesting [Counsel’s] cross-examinations prejudiced him. Four
      of the five TBI forensic scientists who testified at the [P]etitioner’s trial
      testified at this hearing, but post-conviction counsel’s questions of these
      witnesses established only that [Counsel] did not speak with these agents
      before trial and that the agents would have been willing to talk to [Counsel]
      had he approached them. Furthermore, Agent Scott and Detective Charvis
      did not testify at the post-conviction hearing at all. Accordingly, nothing
      was presented at the post-conviction hearing regarding the manner of
      evidence which could have or should have been developed had trial counsel
      cross-examined these witnesses consistent with [the Petitioner’s] assertions.
                                            8
       Absent such evidence, this Court must conclude the [P]etitioner has not
       established [Counsel’s] cross-examining of these witnesses prejudiced him.
       And given the TBI agents’ testimony regarding the rarity of their pretrial
       discussions with defense attorneys, the Court cannot conclude [Counsel’s]
       failing to talk to the forensic analysts before trial constituted deficient
       performance. Accordingly, counsel did not render ineffective assistance as
       to this issue.

It is from this judgment that the Petitioner now appeals.

                                       II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred when it
denied his petition for post-conviction relief because Counsel failed to “effectively cross-
examine the medical expert witnesses.” He asserts that there was little or no
development from a defense standpoint, through the medical experts, of how the bullet
path might have been accomplished, or as to what posture or position the deceased may
have been in when he received the gunshot. This evidence, he asserts, would have
supported his account that the gunshot was the result of a struggle and was an accident.
The State counters that the Petitioner has not met his burden of showing that he received
the ineffective assistance of counsel. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
the evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court’s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
                                             9
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court's evaluation of a claim for ineffectiveness:

      First, the [petitioner] must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
      Amendment. Second, the [petitioner] must show that the deficient
      performance prejudiced the defense. This requires showing that counsel's
      errors were so serious as to deprive the [petitioner] of a fair trial, a trial
      whose result is reliable. Unless a [petitioner] makes both showings, it
      cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
deferential and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,
we note that a defendant in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “‘The fact that a
                                            10
particular strategy or tactic failed or hurt the defense, does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.’”
House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

        If the petitioner shows that counsel's representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

       In the case under submission, the Petitioner contends that Counsel was ineffective
in his cross-examination of the medical expert witnesses and the TBI agents. We agree
with the post-conviction court that the Petitioner has not met his burden of proof. The
witnesses who testified at the post-conviction hearing agreed that Counsel did not
approach them pretrial to ask hypothetical questions and that, had Counsel done so, they
would have answered any questions. They also said that generally they did not speak
with the State’s attorney or defense attorneys pretrial. Counsel said that he did not
approach the witnesses because the theory of the case was that the shooting was
accidental and that he intended to present this theory through the Petitioner’s testimony.
The Petitioner testified at trial and told the jury that the shooting was an accident.

       The Petitioner presented no evidence at the post-conviction hearing that Counsel
was ineffective for not speaking with the witnesses before trial. He further presented no
evidence at the post-conviction hearing about how any hypothetical questions posed to
the jury would have changed the outcome of the trial. The facts of the case remain that
the Petitioner threatened to kill the victim three days before he shot him. Before he died,
the victim identified the Petitioner as the shooter. The Petitioner gave a statement to
police saying that he shot the victim for disrespecting him. We conclude that,
considering the weight of the evidence, the Petitioner cannot prove that he was prejudiced
by Counsel’s failure to ask the witnesses about the location of the gunshot wound or the
path of the bullet. The Petitioner is not entitled to relief.

                                     III. Conclusion

      In accordance with the foregoing reasoning and authorities, we affirm the post-
conviction court’s judgment.

                                                  _________________________________
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     ROBERT W. WEDEMEYER, JUDGE




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