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Osby v. State

Court of Criminal Appeals of Tennessee, Jackson

December 29, 2016

BENNIE OSBY
v.
STATE OF TENNESSEE

          Assigned on Briefs August 2, 2016

         Appeal from the Criminal Court for Shelby County No. 11-02364 James C. Beasley, Jr., Judge

         Bennie Osby ("the Petitioner") was convicted after a jury trial of especially aggravated kidnapping, attempted second degree murder, aggravated robbery, and employing a firearm during the commission of a felony. He sought post-conviction relief alleging ineffective assistance of counsel. The post-conviction court denied relief. On appeal, we affirm the judgment of the post-conviction court.

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

          Carlissa Shaw, Memphis, Tennessee, for the appellant, Bennie Osby.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway Jr., J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY JR., JUDGE

         I. Factual and Procedural Background

         Trial

         This court provided a detailed summary of the testimony presented at trial in the opinion from the Petitioner's direct appeal. State v. Bennie Osby, No. W2012-00408-CCA-R3-CD, 2012 WL 5381371, at *1-4 (Tenn. Crim. App. Nov. 2, 2012), perm. app. denied (Tenn. Mar. 5, 2013). To summarize, the Petitioner and another person approached Marlon Toney and Eric Moody, pointed guns at them, and demanded that they exit Mr. Moody's truck. The Petitioner and his companion ordered Mr. Toney and Mr. Moody to lie on the ground and searched them. They then "marched" Mr. Toney and Mr. Moody into Mr. Toney's backyard, where they "ordered the victims onto the ground a second time and 'started duct-taping [their] hands behind [their] backs.'" Id. The Petitioner and his companion took money and a cellular phone from the victims and struck Mr. Toney in the head with their pistols. The Petitioner and his companion fled, but Mr. Toney followed them, so the Petitioner and his companion fired their guns at Mr. Toney. At that time, Mr. Toney observed the Petitioner fall to the ground and then run away limping. Id. at *1-2.

         Candis Bowman testified that she heard gunshots on the night in question. Within seconds of hearing the gunshots, the Petitioner knocked on her door and told her that he had been shot. She observed gunshot wounds to his left shoulder and right hip. The Petitioner told her that he had been shot by unknown assailants. Ms. Bowman called the police, and the Petitioner was transported to the hospital. Police investigated the Petitioner's claim that he was shot by an unknown person, but officers found no blood, shell casings, bullets, or any other evidence that a shooting had taken place at the location where the Petitioner claimed he was shot. Additionally, "only a single shooting was reported on that night, and [the Petitioner] was the victim." Id. at *3-4.

         The jury convicted the Petitioner of two counts of especially aggravated kidnapping, two counts of aggravated robbery, attempted second degree murder, and employing a firearm during the commission of attempted second degree murder. Id. at *4. The trial court imposed an effective sentence of life without the possibility of parole plus 105 years' incarceration. Id. This court affirmed the Petitioner's convictions on appeal. Id. at *10.

         Post-Conviction ...


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