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Berry v. State

Court of Criminal Appeals of Tennessee, Jackson

October 10, 2017

MARQUIZE BERRY
v.
STATE OF TENNESSEE

          Assigned on Briefs September 7, 2017

         Appeal from the Criminal Court for Shelby County No. 13-00626 J. Robert Carter, Jr., Judge

         The 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.

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

          James E. Thomas, Memphis, Tennessee, for the appellant, Marquize Berry.

          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 Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J. and Norma McGee Ogle, J., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         A. Trial Proceedings and Direct Appeal

         In 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).[1] 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 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 ...

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