State of Tennessee v. Marcus Gergish, E2016-00279-CCA-R3-CD

Marcus Gergish was convicted by a jury of criminally negligent homicide and two counts of attempted aggravated robbery arising from an April 2–3, 2013 shooting in which the victim died; Gergish received an effective 21-year sentence.
Witnesses placed Gergish at Timbo Peregoy’s apartment shortly before the shooting where he purchased Suboxone; several witnesses later identified the person at the driver’s-side window during the robbery as wearing the same clothing and having the same voice/neck tattoo as Gergish.
During the attempted robbery three masked men in dark hoodies approached the victims’ vehicle; the victim struggled with the man at the driver’s side and was shot; family members (Timbo and Brandon Peregoy, Dawna Peregoy, and neighbor R.G.) provided identification and corroborating descriptions.
Gergish offered an alibi through his ex-wife Kimberly Delfino who testified they were together that night; police located and arrested Gergish the next day after cellphone location and witness information.
Post-trial procedural issue: Gergish filed a motion for new trial and a notice of appeal untimely; the Court of Criminal Appeals held the late motion waived all issues except sufficiency, and the court declined plain error review of the waived issues.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Gergish)	Held
Timeliness of motion for new trial and notice of appeal	Motion for new trial and notice were untimely; untimely motion is a nullity and waives issues	Trial court considered the late motion (an Agreed Order was entered); asks appellate review of trial errors	Motion for new trial was untimely; appellate court waives all issues except sufficiency and declined plain-error review of waived issues
Sufficiency of the evidence	Evidence (eyewitness ID, clothing, voice, tattoo, corroboration) supports convictions for attempted aggravated robbery and criminally negligent homicide	Identity not proven beyond reasonable doubt; dying declaration unreliable; valid alibi not disproved	Viewing evidence in light most favorable to State, jury properly credited witnesses; convictions affirmed
Alleged prosecutorial misconduct (destroying/misstating evidence; misleading jury)	Not addressed on merits due to waiver (untimely new-trial motion)	Misconduct claims deprived defendant of fair trial	Waived by untimely motion for new trial; no plain-error review exercised
Trial court rulings (denial of continuance, expert funding, witness calling, jury instructions, Thirteenth Juror)	Court acted within discretion; any error should be raised in timely motion for new trial	Denial of motions and instructions deprived Gergish of fair trial	These issues were waived by untimely new-trial motion and not reviewed for plain error

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for appellate review of sufficiency of the evidence)
State v. Martin, 940 S.W.2d 567 (Tenn. 1997) (untimely motion for new trial is nullity and trial court lacks jurisdiction)
State v. Keel, 882 S.W.2d 410 (Tenn. Crim. App. 1994) (failure to file or late filing of motion for new trial waives issues)
State v. Davis, 748 S.W.2d 206 (Tenn. Crim. App. 1987) (untimely motion for new trial does not toll notice of appeal)
State v. Bland, 958 S.W.2d 651 (Tenn. 1997) (jury verdict accredits State witnesses and resolves conflicts in favor of prosecution)
State v. Tuggle, 639 S.W.2d 913 (Tenn. 1982) (accused bears burden to show why evidence is insufficient)
State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011) (circumstantial-evidence sufficiency principles)
State v. Wagner, 382 S.W.3d 289 (Tenn. 2012) (circumstantial evidence may alone support conviction)
State v. Goodwin, 143 S.W.3d 771 (Tenn. 2004) (appellate standard: do not reweigh evidence)
State v. Elkins, 102 S.W.3d 578 (Tenn. 2003) (court affords prosecution the strongest legitimate view of the evidence)