Marcus Gergish, 42, is serving a total of 21 years for shooting and trying to rob Timothy Peregoy Sr., 46, of Kingsport, outside Peregoy’s son’s apartment on Nathaniel Drive on April 3, 2013. He was originally charged with first-degree murder and two counts of attempted aggravated robbery, but the jury decided on lesser criminally negligent homicide with the two counts of attempted aggravated robbery.
Gergish was sentenced to 21 years in prison — six years on the homicide, to be served at 60 percent, and 15 years on the two attempted robbery convictions, which was concurrent and served at 45 percent. The 15 years is consecutive to the six years for an effective 21-year sentence. Gergish is also serving a six-year sentence for prior forgery and identity theft convictions. He was on probation from those convictions at the time of Peregoy’s murder.
The first step in appealing a guilty verdict is to file a motion for new trial within 30 day of when the judge signs the judgment forms. Gergish’s trial attorney, David Robbins, was late filing the motion, but prosecutors agreed Judge Lisa Rice could still hear it. She denied the motion and the case went to the Tennessee Court of Criminal Appeals.
The CCA panel confirmed Gergish’s conviction and 21-year prison sentence in the case. But the CCA ruled that issues raised in the appeal were waived because Gergish didn’t file the motion for new trial by the 30-day deadline after his sentencing. After the CCA’s ruling, the case was presented for the Tennessee Supreme Court for consideration, but that panel refused to hear it.
Ultimately the case was sent back to the trial court level for a proper hearing on a motion for new trial, and Gergish was appointed a new attorney — Casey Sears — to represent him. Rice heard that motion on Tuesday, which included testimony from Robbins about things he did and did not do during trial.
One thing Sears asked Robbins about was why he didn’t ask for a jury instruction about an alibi witness — Gergish was with a woman named Kimberly Delfino that evening — as well as a police investigator’s failure to preserve video from a gas station where Gergish was near at the time of the killing or any key card activity at a hotel where Gergish was staying.
“My focus all along has been ineffective assistance of counsel,” Sears told the judge. “Jury instructions are important and the vehicle everything is transported through it” to the jury.
Assistant District Attorney General Erin McArdle said the two jury instructions about an alibi and unpreserved evidence would not have changed the jury’s verdict.
Rice will file a written order on the hearing at a later date.