Assigned on Briefs December 5, 2017
from the Criminal Court for Shelby County No. 09-06930 Chris
petitioner, Benjamin Murrell, appeals the denial of his
post-conviction petition, arguing the post-conviction court
erred in finding he received effective assistance of counsel
regarding the jury instructions presented at trial. Following
our review, we affirm the denial of the petition.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Patrick E. Stegall, Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Jose Leon, Assistant District
Attorney General, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Alan E. Glenn, JJ., joined.
ROSS DYER, JUDGE
2009, the petitioner and his co-defendant engaged in a
shooting that resulted in their victim being paralyzed. After
a mistrial, a Shelby County jury ultimately convicted the
petitioner of criminal attempt to commit voluntary
manslaughter and employing a firearm during the commission of
a dangerous felony for his participation in the shooting. The
trial court imposed an effective eighteen-year sentence for
the convictions, and the petitioner subsequently challenged
the sufficiency of the evidence supporting his convictions on
direct appeal. In denying his challenge, this Court
summarized the underlying facts leading to the
petitioner's convictions, as follows:
In September 2009, a Shelby County grand jury indicted [the
petitioner] and the co[-]defendant, Melvin Jackson, for
criminal attempt to commit first degree murder and employing
a firearm during the commission of a dangerous felony. The
trial court held a jury trial that resulted in [the
petitioner's] acquittal for criminal attempt to commit
first degree murder and a hung jury as to the lesser-included
offense of criminal attempt to commit voluntary manslaughter.
The trial court declared a mistrial and reset the case for
The court held a retrial August 15-18, 2011, on the charges
of criminal attempt to commit voluntary manslaughter and
employing a firearm during the commission of a dangerous
felony. The parties presented the following evidence at
Officer Clarence Neal with the Memphis Police Department
testified that on June 6, 2009, he responded to a "man
down" call at 589 Mississippi Boulevard, in the area of
the Foote Homes Housing Project ("Foote Homes").
When he arrived at the scene, he observed the victim, "a
male black [who] was in front of a Lincoln Town Car."
The victim was lying on the ground unconscious. Officer Neal
said that the victim's mouth was open, that his eyes were
closed, and that he appeared to be dead. He saw that the
victim was bleeding and covered the victim's wounds with
a towel "to keep [them] from bleeding out." He
asked the victim who had injured him, but the victim was
unresponsive. Officer Neal called paramedics to the scene,
and the paramedics transported the victim to the hospital.
After the paramedics transported the victim to the hospital,
Officer Neal searched for witnesses. After speaking with
family members of the victim, he developed a suspect. He gave
the information about the suspect to other officers, and they
attempted to find the suspect.
Officer David Payment with the Memphis Police
Department's Crime Scene Investigation Unit testified
that when he arrived at the scene in this case, he observed
"a vehicle parked on the street with spent casings and
possible blood around it." He stated that officers had
secured the scene with crime scene tape. Paramedics had
already transported the victim to the hospital when Officer
Officer Payment identified several photographs of the crime
scene, including photographs of the spent casings. He also
identified five spent .380 casings and a spent bullet
fragment that he recovered from the scene.
Officer Payment testified that he did not find [the
petitioner's] fingerprints or DNA at the scene. He
further testified that he did not find a gun at the scene. He
said that a camera outside the store where the shooting took
place captured surveillance video; however, officers were
unable to download the video.
Trena Jenkins testified that the victim, Marques Jenkins, was
her son. On June 6, 2009, she went to the birthday party of
her nephew, Damon Collier, inside an apartment in Foote
Homes. Two of her other sons, Anthony and Tashun, were at the
party as well. Ms. Jenkins said she knew [the petitioner] as
"BAM." She further said that she knew [the
petitioner] because [the petitioner's] sister and Mr.
Collier had dated for seventeen years. Ms. Jenkins was
friendly with [the petitioner] and did not have any problems
with him before the day of this incident.
Ms. Jenkins stated that the party was going well when [the
petitioner] arrived. However, at some point during the party,
Ms. Jenkins' sister screamed, "Stop BAM!"
According to Ms. Jenkins, her sister was "frantic"
and "scared like something was fixing to happen."
After speaking with her sister, Ms. Jenkins became concerned
about what [the petitioner] was going to do and the safety of
the victim. Ms. Jenkins asked [the petitioner] what happened,
but he did not reply. Ms. Jenkins said [the petitioner] went
to his uncle's apartment, and she went to find the
victim. The victim arrived at Ms. Jenkins' location, and
she asked him what was happening. She said there was "a
lot of screaming going on." She further said the victim
was trying to talk to her, but he was focused on [the
petitioner], who ...