                                                                                         10/10/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2017

                MARQUIZE BERRY v. STATE OF TENNESSEE

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

                           No. W2016-02344-CCA-R3-PC
                       ___________________________________


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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.
and NORMA MCGEE OGLE, J., joined.

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.

                                       OPINION

                              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]

       1
          Upon review, our supreme court summarily granted the petitioner’s Rule 11 application in order
to address the confusion among the courts as to how “a single ‘merged conviction’ should be recorded on
the resulting judgment document or documents.” State v. Berry, 503 S.W.3d 360, 362 (Tenn. 2015). To
that end, our supreme court issued an order stating “when two jury verdicts are merged into a single
conviction, the trial court should complete a uniform judgment document for each count.” Id. at 364. In
the order, our supreme court also affirmed this Court’s judgment as to the sufficiency of the evidence
supporting the petitioner’s attempted second degree murder conviction.

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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
photographic lineup and positively identified the [petitioner] as his shooter.

        Courtney Edwards, who was familiar with both Mr. Jamison and the
[petitioner], was also visiting the apartments on Kansas Street on June 15
and observed the argument between the [petitioner] and Mr. Jamison. Mr.
Edwards saw the defendant leave the scene briefly and then return, and Mr.
Edwards saw the [petitioner] shoot Mr. Jamison. Mr. Edwards immediately
left the scene, but he returned a few minutes later and informed MPD
officers that he had witnessed the shooting. Mr. Edwards explained to the
officers that he did not feel comfortable speaking with them in front of the
crowd of people that had gathered at the grocery store. Officers then
transported Mr. Edwards to the police station where he gave a signed
statement and positively identified a photograph of the [petitioner] as
depicting the man who had shot Mr. Jamison.

       MPD Officer Martrell Boswell responded to the call of the shooting
on Kansas Street on June 15. Mr. Edwards informed Officer Boswell that
the shooter was known as “Fat Daddy” and that the shooter’s grandmother
resided in the apartment complex where the shooting had occurred. Officer
Boswell proceeded to the grandmother’s residence, where he learned that
the true identity of the shooter was Marquize Berry.

       Norman Towaf, who was acting manager of the grocery story (sic)
across the street from the apartments, testified that he was taking care of the
store while his cousin, the owner, was on vacation out of the country. Mr.
Towaf did not witness the shooting, but he allowed MPD officers to view
the store’s video surveillance footage. One of the store’s video cameras
captured the shooting. According to Officer Boswell, the video showed a
group of men gathered across the street from the store. Shortly thereafter,
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Officer Boswell “saw a male black coming out of an abandoned apartment
beginning to shoot at one of the male blacks and he ran off camera and the
other guy ran off camera.” MPD Sergeant Eric Kelly also viewed the
surveillance footage and described a similar scene, testifying that one male
left the gathered group and entered one of the apartments. A few moments
later, a man dressed in all black approached the group and “there appear[ed]
to be a commotion.” Sergeant Kelly described the victim’s ducking behind
a vehicle to avoid the gunman and then running toward the grocery store as
the man in black gave chase. Both Officer Boswell and Sergeant Kelly
described seeing muzzle flashes or “puffs of smoke” emanating from the
gun the man in black was holding, but neither officer could discern any
faces on the video. Because both Mr. Towaf and Sergeant Kelly were
unfamiliar with the video surveillance system, the video was not preserved
and was later deleted.

        Less than two weeks after the shooting, Mr. Jamison encountered the
[petitioner] at a local shopping mall. According to Mr. Jamison, the
[petitioner] approached him, admitted having shot him, and threatened to
do it again. The [petitioner] even instructed Mr. Jamison to “meet [him] on
Kansas [Street]” where the shooting had taken place.

       With this evidence, the State rested. Following the trial court’s
denial of the [petitioner’s] motion for judgment of acquittal and
a Momon colloquy, the [petitioner] elected not to testify but did choose to
present proof.2 MPD Officer Dustin Kennedy testified that he spoke with
both Mr. Jamison and Mr. Edwards after the shooting and that neither man
provided a description of the shooter, only identifying him as “Fat Daddy.”
MPD Sergeant Lorenzo Young testified that he, too, spoke with both Mr.
Jamison and Mr. Edwards and that he had taken a statement from Mr.
Edwards.

        Based on this evidence, the jury convicted the [petitioner] of the
lesser included offense of attempted second degree murder. In addition, the
jury convicted the [petitioner] as charged of both aggravated assault and
employing a firearm during the commission of a dangerous felony.
Following a sentencing hearing, the trial court merged the aggravated
assault verdict with the attempted second degree murder conviction and
sentenced the [petitioner] as a standard offender to a term of 10 years’

2
See Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999).

                                       -4-
        incarceration. In addition, the trial court imposed a sentence of six years’
        incarceration for the conviction of employing a firearm during the
        commission of a dangerous felony, to be served consecutively to the 10-
        year sentence, for a total effective sentence of 16 years’ incarceration.

Id. *1-2 (footnotes omitted).

   B.       Post-Conviction Proceedings

        On February 5, 2016, the petitioner filed a pro se petition for post-conviction relief
asserting a violation of his protection against double jeopardy and that his “conviction
was based on action of a grand or petit jury that was unconstitutionally selected and
impaneled.” The petitioner also claimed he received ineffective assistance of counsel.
As to his ineffective assistance of counsel claims, the petitioner alleged trial counsel
failed to relay a guilty plea offer from the State, failed to argue against an alleged double
jeopardy violation in his indictment, and failed to effectively inform the petitioner of the
strengths and weaknesses of his case thus rendering him unable to make an informed
decision as to trial. The post-conviction court appointed counsel, and the petitioner filed
an amended petition for post-conviction relief, alleging trial counsel: (1) “was ineffective
for failing to properly investigate the case and prepare the matter for trial;” and (2) “was
ineffective for failing to file and litigate all appropriate pretrial motions and include all
errors in the motion for new trial.” The petitioner also alleged appellate counsel failed to
“raise all appropriate issues on appeal.”

       The petitioner later filed a second amended petition for post-conviction relief
wherein he alleged additional failures of trial counsel, as follows: (1) “[t]rial counsel was
ineffective for failing to file and litigate all appropriate pretrial motions, including a
motion pursuant to State v. Ferguson and State v. Merriman, and include all errors in the
motion for new trial;”3 (2) “[t]rial counsel was ineffective for failing to make all
appropriate hearsay objections during trial;” and (3) “[t]rial counsel was ineffective for
advising [the] [p]etitioner not to testifiy.” The post-conviction court held an evidentiary
hearing wherein both trial and appellate counsel testified.


        3
         State v. Ferguson, 2 S.W.3d. 912 (Tenn. 1999) (adopting a balancing approach to determine
whether the exculpatory nature of destroyed evidence renders a defendant’s trial fundamentally unfair);
State v. Merriman, 410 S.W.3d 779, 797 (Tenn. 2013) (holding “the standard of review of a trial court’s
determination as to whether a defendant was deprived of a fundamentally fair trial is de novo with no
presumption of correctness” and “[a] trial court’s determination of the appropriate remedy for
the State’s failure to preserve the evidence is reviewed under an abuse of discretion standard”).


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        Initially, appellate counsel only briefly testified, stating he challenged the
sufficiency of the evidence on direct appeal. Trial counsel then testified primarily about
the video evidence at issue in this appeal. Trial counsel explained that prior to trial she
learned police officers examined video footage of the shooting captured from a nearby
store. Trial counsel was aware the officers were unable to download the video, and it was
later erased. As a result, trial counsel never viewed the video footage of the shooting.
Instead, she relied on “the narrative of the police officers who reviewed it” and devised a
strategy for trial aimed at attacking the inconsistencies between the officers’ description
of the shooter in the video and the victim’s description. According to trial counsel, the
officers’ narrative described a shooter “dressed all in black” whereas the victim stated the
shooter “was wearing blue jeans and a white T-shirt.”

      Based on the inconsistencies, trial counsel chose to highlight the differences
between the officers’ and the victim’s descriptions of the shooter rather than file a
Ferguson motion, stating:

              The impact of the visually observing the shooting and that would
       have on the jury versus the officer’s plain testimony that he saw the shooter
       wearing black and then the victim describing the shooter in different
       clothing I thought was the better route to take.

Trial counsel further explained that her strategy emerged based upon additional evidence
produced against the petitioner at trial, stating: “based on the other evidence available to
the [trial] [c]ourt with the witnesses, multiple witnesses identifying [the petitioner], it was
our decision to forgo [a Ferguson motion] and show the jury the inconsistencies in the
testimony and the evidence.” Trial counsel believed a Ferguson motion “would probably
have been unlikely to succeed.” Additionally, trial counsel explained she filed a motion
to continue to ensure the officers’ presence at trial and proceeded with the strategy
detailed above. The petitioner did not testify at the hearing.

       After taking the petitioner’s claims under advisement, the post-conviction court
found the petitioner failed to prove ineffective assistance of counsel, and denied relief.
This timely appeal followed.

                                          Analysis

       On appeal, the petitioner asserts the trial court erred in denying his petition for
post-conviction relief, alleging trial counsel’s “strategy of not filing a Ferguson motion
when she knew the evidence that was not preserved was potentially exculpatory evidence
[was] not an informed strategy.” The State asserts the petitioner failed to present clear

                                             -6-
and convincing evidence demonstrating trial counsel was deficient or how her alleged
deficiency prejudiced his trial. Upon our review, we agree with the State.

       To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden
of proving his allegations of fact by clear and convincing evidence. See Tenn. Code Ann.
§ 40-30-110(f). “‘Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

       Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State,
245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter
entrusted to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). When an evidentiary hearing is held in the
post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497,
500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the
facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which
presents mixed questions of fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court’s findings of fact. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution both require that criminal defendants receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted).
When a petitioner claims he received ineffective assistance of counsel, he has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466
U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:



                                            -7-
              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
With regard to the standard, our supreme court has held:

              [T]he assistance of counsel required under the Sixth Amendment is
       counsel reasonably likely to render and rendering reasonably effective
       assistance. It is a violation of this standard for defense counsel to deprive a
       criminal defendant of a substantial defense by his own ineffectiveness or
       incompetence . . . Defense counsel must perform at least as well as a lawyer
       with ordinary training and skill in the criminal law and must
       conscientiously protect his client’s interest, undeflected by conflicting
       considerations.

Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at
934-35).

       When reviewing trial counsel’s performance, this Court “must make every effort
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that
time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at
689). The fact that a trial strategy or tactic failed or was detrimental to the defense does
not, alone, support a claim for ineffective assistance of counsel. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is given to sound tactical
decisions made after adequate preparation for the case. Id.

       To satisfy the prejudice prong of the test, the petitioner “must establish a
reasonable probability that but for counsel’s errors the result of the proceeding would
have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
                                            -8-
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). In
order to prevail, the deficient performance must have been of such magnitude that the
petitioner was deprived of a fair trial and that the reliability of the outcome was called
into question. Finch, 226 S.W.3d at 316.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

        Here, the petitioner has failed to present any evidence supporting his assertion that
trial counsel’s failure to file a Ferguson motion was ineffective. As identified by the
post-conviction court, the alleged ineffectiveness highlighted by the petitioner is not
supported by the proof presented. Rather, at the evidentiary hearing, trial counsel
testified as to why she did not file a Ferguson motion, explaining she instead chose to
address the video evidence during the police officers’ and the victim’s testimony at trial.

         As detailed above, trial counsel was aware of the video footage that captured the
shooting prior to trial and was also aware that police officers were unable to properly
download the video for later use. Upon learning the video footage was not available for
trial, trial counsel ensured the police officers who viewed the video were available to
testify at trial by filing a motion to continue. Trial counsel then presented inconsistencies
between the officers’ description of the shooter’s appearance on the video, believing the
shooter to be wearing all black, and the victim’s description of the petitioner’s
appearance at the time of the shooting, stating the petitioner was wearing blue jeans and a
white T-shirt. Nothing in the record indicates this strategy was not sound, and the
petitioner failed to present additional evidence in support of his claims. See Strickland,
466 U.S. 689. Simply because trial counsel’s strategy was unsuccessful does not render
her assistance ineffective. Cooper, 847 S.W.2d at 528. As such, the petitioner has failed
to show by clear and convincing evidence how trial counsel’s failure to file a Ferguson
motion constituted ineffective assistance of counsel. See Strickland, 466 U.S. at 694.
This argument is without merit.

        In denying post-conviction relief, the post-conviction court stated, “[the]
[p]etitioner has failed to demonstrate that he received ineffective assistance of counsel.”
We agree with the post-conviction court’s assessment of the petitioner’s claims. No
evidence exists in the record to support his attack on trial counsel’s performance or how
the alleged deficient performance affected the outcome of his trial. See Strickland, 466
U.S. at 687. The petitioner is not entitled to post-conviction relief for his claim of
ineffective assistance of counsel.
                                            -9-
                                 CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.



                                         ____________________________________
                                         J. ROSS DYER, JUDGE




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