Assigned on Briefs September 7, 2017
from the Criminal Court for Shelby County No. 13-00626 J.
Robert Carter, Jr., Judge
petitioner, Marquize Berry, appeals the denial of his
post-conviction petition, arguing trial counsel's failure
to file a pre-trial motion regarding video evidence of the
crime pursuant to State v. Ferguson, 2 S.W.3d. 912
(Tenn. 1999), was ineffective. Following our review, we
affirm the denial of the petition.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
E. Thomas, Memphis, Tennessee, for the appellant, Marquize
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Dru Carpenter, Assistant
District Attorney General, for the appellee, State of
Ross Dyer, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J. and Norma McGee Ogle, J., joined.
ROSS DYER, JUDGE.
and Procedural History
Trial Proceedings and Direct Appeal
2013, a Shelby County Criminal Court jury convicted the
petitioner of attempted second degree murder, aggravated
assault, and employing a firearm during the commission of a
dangerous felony, for which he received an effective sentence
of sixteen years. This Court affirmed the sufficiency of the
evidence for the petitioner's attempted second degree
murder conviction on direct appeal, but remanded the case for
the trial court to correct "certain clerical amendments
to the judgments." State v. Marquize Berry, No.
W2014-00785-CCA-R3-CD, 2015 WL 1278415, at *1 (Tenn. Crim.
App. Mar. 18, 2015), appeal granted (Nov. 16, 2015),
aff'd in part, rev'd in part, 503 S.W.3d 360
(Tenn. 2015). On direct appeal, this Court recited the
following underlying facts and procedural history:
In February 2013, the Shelby County Criminal Court grand jury
charged the [petitioner] 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 [petitioner], known as
"Fat Daddy, " and another man named Marco, who used
the moniker, "Stink." Mr. Jamison had known the
[petitioner] since the two men were children.
During the course of the game of dice, Mr. Jamison came to
believe that the [petitioner] 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 [petitioner], and a small crowd began to
gather. The [petitioner] 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 [petitioner] that he was unarmed. Mr. Jamison
suggested that they fight instead, but the [petitioner]
declined. The [petitioner] again stated that he was going to
get "a strap, " and the [petitioner] walked away,
disappearing behind the apartments. Mr. Jamison stayed where
he was, believing the argument to be over.
A few minutes later, the [petitioner] 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 [petitioner] holding a black handgun.
The [petitioner] chased Mr. Jamison around the car, and Mr.
Jamison attempted to run across the street. According to Mr.
Jamison, the [petitioner] fired three shots, striking Mr.
Jamison in the lower back with the second shot. The
[petitioner] attempted to continue firing at Mr. Jamison, but
the weapon would no longer fire, and the [petitioner] fled
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 ...