Marquize Berry v. State of Tennessee, W2016-02344-CCA-R3-PC

Marquize Berry was convicted by a Shelby County jury (2013) of attempted second-degree murder (lesser-included), aggravated assault (merged), and employing a firearm; effective sentence 16 years.
Store surveillance captured the shooting but the video was not preserved and later deleted; officers who viewed it testified they could not discern faces but described a shooter in "all black."
Victim and eyewitness testimony identified Berry and described different clothing (victim: blue jeans and white T-shirt). Photographic ID procedures identified Berry.
On post-conviction review Berry argued trial counsel was ineffective for not filing a pretrial motion under State v. Ferguson to address the destroyed video evidence and for other investigative/pretrial failures.
Trial counsel testified she knew the video was unavailable, secured officers to testify, and intentionally attacked inconsistencies between officers’ descriptions of the video and the eyewitness/victim testimony instead of filing a Ferguson motion as a tactical choice.
The post-conviction court denied relief; the Court of Criminal Appeals affirmed, finding Berry failed to prove deficient performance or prejudice under Strickland.

Issue	Berry's Argument	State's Argument	Held
Whether trial counsel was ineffective for not filing a Ferguson motion over destroyed surveillance video	Counsel’s failure to file a Ferguson motion deprived Berry of an informed strategy regarding potentially exculpatory destroyed evidence	Counsel made a reasonable, informed tactical decision to highlight inconsistencies in testimony and ensured officers who viewed the video testified; omission was not deficient or prejudicial	Court held counsel’s strategy was reasonable; Berry failed to show deficient performance or prejudice, so post-conviction relief denied

State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999) (balancing test for destroyed evidence and whether its loss renders trial unfair)
State v. Merriman, 410 S.W.3d 779 (Tenn. 2013) (standard of review and remedies for failure to preserve evidence)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance test: deficient performance and prejudice)
Goad v. State, 938 S.W.2d 363 (Tenn. 1996) (objective standard for counsel performance)
Finch v. State, 226 S.W.3d 307 (Tenn. 2007) (counsel must render reasonably effective assistance)