State v. Berry, 503 S.W.3d 360

Background

Defendant Marquize Berry was indicted for attempted first-degree murder, aggravated assault, and employing a firearm during a dangerous felony; a jury convicted him of the lesser-included attempted second-degree murder (count 1), aggravated assault (count 2), and the firearm offense (count 3).
Trial court sentenced Berry to an effective 16-year term (10 years on count 1, 6 years on count 3), and used uniform judgment forms for each count; the count 2 form noted that count 2 merged into count 1.
On direct appeal Berry challenged only the sufficiency of the evidence as to attempted second-degree murder; the Court of Criminal Appeals (Berry panel) affirmed the conviction but concluded the judgment forms contained errors and vacated the count 2 judgment, instructing the trial court to enter a single judgment for the merged conviction per State v. Addison.
Berry applied to the Tennessee Supreme Court under Tenn. R. App. P. 11; the Supreme Court agreed the evidence was sufficient but disagreed with the Berry panel’s remedy regarding judgment forms.
The Tennessee Supreme Court held that when jury verdicts are merged, the trial court should complete a uniform judgment document for each count, indicating the verdict and sentence for each and noting in the “Special Conditions” box that the lesser conviction merges into the greater; it reversed the portion of the CCA judgment that vacated the aggravated assault judgment form.
The Court also advised best practice: impose and record a sentence on each count at trial (notwithstanding the merger notation) so that if the greater conviction is reversed on appeal, the lesser conviction and its sentence are ready to take effect without a new sentencing hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a uniform judgment form is required for a merged (lesser) jury verdict	CCA/State: No separate judgment form needed for the merged lesser offense; enter a single judgment reflecting merger (relying on Addison)	Berry: Trial court may and should complete a uniform judgment document for each count and note merger	Tennessee Supreme Court: Complete a uniform judgment document for each count; note merger on both the lesser and the surviving count; reversed CCA insofar as it vacated the lesser-count judgment form
Sufficiency of evidence for attempted second-degree murder conviction	State: Evidence supports conviction	Berry: Evidence insufficient	Tennessee Supreme Court: Evidence was sufficient; affirmed conviction

Key Cases Cited

State v. Addison, 973 S.W.2d 260 (Tenn. Crim. App. 1997) (adopted approach that jury verdicts should be preserved by merging counts into one judgment of conviction while noting merger)
State v. Davis, 466 S.W.3d 49 (Tenn. 2015) (lesser-included conviction properly merges into greater offense)
State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998) (discusses merger where counts are alternative theories of same offense)
State v. Cooper, 336 S.W.3d 522 (Tenn. 2011) (modified judgments to merge separate DUI convictions)
State v. Watkins, 362 S.W.3d 530 (Tenn. 2012) (adopted Blockburger test for double jeopardy analysis)
State v. Feaster, 466 S.W.3d 80 (Tenn. 2015) (discusses retroactivity of Watkins)