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Murrell v. State

Court of Criminal Appeals of Tennessee, Jackson

March 6, 2018

BENJAMIN MURRELL
v.
STATE OF TENNESSEE

          Assigned on Briefs December 5, 2017

         Appeal from the Criminal Court for Shelby County No. 09-06930 Chris Craft, Judge

         The 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.

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

          Patrick E. Stegall, Memphis, Tennessee, for the appellant, Benjamin Murrell.

          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.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         In 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 trial.
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 trial:
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 Payment arrived.
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 ...

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