Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County No. 13-00626 J. Robert Carter, Jr., Judge.
Harry E. Sayle III (on appeal), and Lisa Kutch and Jane Sturdivant Tillman (at trial), Assistant District Public Defenders, for the appellant, Marquize Berry.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., J., joined.
JAMES CURWOOD WITT, JR., JUDGE
In February 2013, the Shelby County Criminal Court grand jury charged the defendant with one count each of attempted first degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony. The trial court conducted a jury trial in November 2013.
The State's proof at trial showed that on the afternoon of June 15, 2012, Rodney Jamison visited an apartment complex on Kansas Street in Memphis, where he stood outside and observed a dice game between the defendant, known as "Fat Daddy, " and another man named Marco, who used the moniker, "Stink." Mr. Jamison had known the defendant since the two men were children.
During the course of the game of dice, Mr. Jamison came to believe that the defendant was cheating. Mr. Jamison expressed his belief to "Stink" and encouraged him to walk away from the game. A heated argument ensued between Mr. Jamison and the defendant, and a small crowd began to gather. The defendant threatened to retrieve "a strap, " which is slang for a handgun. Mr. Jamison questioned why a handgun was necessary and lifted his shirt to show the defendant that he was unarmed. Mr. Jamison suggested that they fight instead, but the defendant declined. The defendant again stated that he was going to get "a strap, " and the defendant walked away, disappearing behind the apartments. Mr. Jamison stayed where he was, believing the argument to be over.
A few minutes later, the defendant reappeared and confronted Mr. Jamison about their earlier disagreement. Mr. Jamison became concerned and ran toward a nearby car, turning back in time to see the defendant holding a black handgun. The defendant chased Mr. Jamison around the car, and Mr. Jamison attempted to run across the street. According to Mr. Jamison, the defendant fired three shots, striking Mr. Jamison in the lower back with the second shot. The defendant attempted to continue firing at Mr. Jamison, but the weapon would no longer fire, and the defendant fled the scene.
Mr. Jamison entered a small grocery store across the street from the apartments and collapsed. He was taken to the hospital and underwent surgery to repair the damage caused by the bullet. Mr. Jamison later spoke with Memphis Police Department ("MPD") officers and informed them that "Fat Daddy" had shot him. On June 25, Mr. Jamison viewed a photographic lineup and positively identified the defendant as his shooter.
Courtney Edwards, who was familiar with both Mr. Jamison and the defendant, was also visiting the apartments on Kansas Street on June 15 and observed the argument between the defendant and Mr. Jamison. Mr. Edwards saw the defendant leave the scene briefly and then return, and Mr. Edwards saw the defendant shoot Mr. Jamison. Mr. Edwards immediately left the scene, but he returned a few minutes later and informed MPD officers that he had witnessed the shooting. Mr. Edwards explained to the officers that he did not feel comfortable speaking with them in front of the crowd of people that had gathered at the grocery store. Officers then transported Mr. Edwards to the police station where he gave a signed statement and positively identified a photograph of the defendant as depicting the man who had shot Mr. Jamison.
MPD Officer Martrell Boswell responded to the call of the shooting on Kansas Street on June 15. Mr. Edwards informed Officer Boswell that the shooter was known as "Fat Daddy" and that the shooter's grandmother resided in the apartment complex where the shooting had occurred. Officer Boswell proceeded to the grandmother's residence, where he learned that the true identity of the shooter was Marquize Berry.
Norman Towaf, who was acting manager of the grocery story across the street from the apartments, testified that he was taking care of the store while his cousin, the owner, was on vacation out of the country. Mr. Towaf did not witness the shooting, but he allowed MPD officers to view the store's video surveillance footage. One of the store's video cameras captured the shooting. According to Officer Boswell, the video showed a group of men gathered across the street from the store. Shortly thereafter, Officer Boswell "saw a male black coming out of an abandoned apartment beginning to shoot at one of the male blacks and he ran off camera and the other guy ran off camera." MPD Sergeant Eric Kelly also viewed the surveillance footage and described a similar scene, testifying that one male left the gathered group and entered one of the apartments. A few moments later, a man dressed in all black approached the group and "there appear[ed] to be a commotion." Sergeant Kelly described the victim's ducking behind a vehicle to avoid the gunman and then running toward the grocery store as the man in black gave chase. Both Officer Boswell and Sergeant Kelly described ...