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Gregory Berry

Other Wayne County, Michigan CIU exonerations
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At about 4:30 a.m. on September 5, 2003, 18-year-old Octavio Hernandez was fatally shot at a Mobil gas station on Springwells Street near the Fisher Freeway in Detroit, Michigan.

Jimmy Hamood told police he was working at the station when Hernandez walked out of the store. Hamood said he heard a popping noise and saw Hernandez lying on the pavement. Hamood said he saw someone wearing a hooded sweatshirt jump into the back seat of a car as it drove off.

On September 7, police arrested 18-year-old Antonio Hamilton after a woman reported overhearing a conversation between Shaquita Mack and Mack’s mother. During that conversation, Mack told her mother that Hamilton had admitted committing a shooting.

Hamilton ultimately signed a statement admitting that he shot Hernandez. He also said that 20-year-old Gregory Berry drove the car, gave him the gun, and told him to shoot Hernandez.

Police looked for Berry and on October 18, 2003, arrested him in Tennessee. Both men were charged with murder, assault with intent to rob while armed, and use of a firearm in the commission of a felony.

Hamilton agreed to plead guilty to second-degree murder and use of a firearm in the commission of a felony, and to testify against Berry. In return, Hamilton was sentenced to 16 to 25 years in prison.

On October 18, 2004, Berry went to trial in Wayne County Circuit Court. Shaquita Mack testified that she was at a house with her boyfriend in the early morning hours of September 5, 2003 and that Hamilton and Berry were there. Mack said that they left the house and she went to bed. She said that later in the day, she heard Berry tell Hamilton that he didn’t have to shoot the man. She said Hamilton replied that he had to shoot him because the “guy got cocky.” Mack testified that Hamilton and Berry talked about the shooting occurring at a gas station. She said she later discussed the conversation with her mother.

Kathy Carthron testified that she gave police a statement after overhearing Mack tell her mother that Hamilton had admitted to the shooting. Carthron also said—despite an objection by the defense—that she heard Mack say that a “white guy” told Hamilton to shoot Hernandez.

Hamilton testified that he and Berry were hanging out at the house, which was a place where people went to buy and use drugs. Hamilton said that when he and Berry left the house, he thought they were going to buy more drugs to sell. He said they drove around for a while and eventually pulled into the Mobil station.

He said that Berry handed him a gun and told him to rob a man who was standing by one of the gas pumps. Hamilton testified that he got out of the car, held the gun to the man’s head, and demanded money. When the man—Hernandez—did not respond, Hamilton admitted to getting scared and pulled the trigger. Hamilton said that Berry was already driving away, and that he had to run and jump through an open passenger side window to get back in the car.

Hamilton said he later gave the gun back to Berry. Hamilton also testified that while he was being held in the Wayne County Jail, Berry attacked him.

Detroit Police Detective Barbara Simon said that Hamilton gave her a written statement. The statement was similar to Hamilton’s testimony.

Dr. Leigh Hlavaaty of the Wayne County Medical Examiners Office testified that the cause of death was a single gunshot wound to the face.

Donald Stewart testified for the defense that he was an inmate in the same unit as Berry and that he also knew Hamilton. Stewart said that Hamilton told him that at the time of the shooting, Hamilton went into the store at the Mobil station to buy cigarettes. He noticed Hernandez, who was pumping gas, was wearing a Rolex watch. Stewart said Hamilton told him that he wanted the wristwatch, so he asked Hernandez to hand it over at gunpoint. When Hernandez refused, Hamilton shot him.

Stewart said Hamilton told him that Berry was trying to leave the station, forcing Hamilton to run to the car and dive through the window. Stewart also testified that he spoke with Berry in the jail. Berry said he gave $5 to Hamilton to buy cigarettes and the next thing he knew, Hamilton shot Hernandez. Stewart said Berry told him he tried to leave without Hamilton, but that Hamilton managed to dive through the window.

Marvel Daniels testified that he knew Hamilton and Berry from the streets. He said that he saw them in the jail as well. Daniels told the jury that Hamilton admitted shooting Hernandez while he was trying to rob him and that Berry had nothing to do with it. Daniels also testified that he was present when Hamilton bought the gun—that Berry did not give it to him.

On October 21, 2004, the jury convicted Berry of felony murder, assault with intent to rob while armed, and use of a firearm in the commission of a felony. He was sentenced to life in prison without parole.

The Michigan Court of Appeals upheld his convictions in 2006. The Michigan Supreme Court denied an application for leave to appeal.

A motion for relief from judgment filed in 2007 was denied as having no merit. A petition for leave to appeal to the Michigan Court of Appeals was denied as was a similar petition to the Michigan Supreme Court.

Berry subsequently filed a federal petition for a writ of habeas corpus. That was denied in 2012. The dismissal was upheld by the Sixth Circuit U.S. Court of Appeals.

In 2016, Hamilton recanted. He signed an affidavit saying that he had lied in his statement and in court. In 2017, Hamilton testified during a hearing on a motion for relief from judgment. He said that he gave the statement after a detective physically abused him. Hamilton said that he was slapped in the face, punched in the shoulder, and choked.

“He kept asking me questions,” Hamilton testified. “And I was getting irritated. So I told him, like look, man, ‘I don’t know what the (obscenity) you talking about man. It’s up to you whether you believe me or not.’ I guess he got mad….He slapped me with his right hand.”

Hamilton said, “I raised my left arm to block and try to anticipate his next punch. Well, it look (sic) like he was going to punch me in my face. But I moved to the side and he punched me in the shoulder.”

Hamilton said the detective, whose name he did not recall, yanked the chair out from under him. “He kicked me in my ribs,” Hamilton said.

Before he left, the detective “told me, man, this is not a game. I’m not playing with you,” Hamilton said.

The detective returned later and asked Hamilton if he was ready to cooperate. When Hamilton said, “I still don’t know what the hell you (sic) talking about,” the officer “grabbed me by my neck and start (sic) choking me.” When that ceased, the officer left the interrogation room.

A different officer then came in who told Hamilton that if he wanted to keep the other officer “from coming back,” Hamilton had to give some information about the murder.

Hamilton said he was scared. He said he had been a special education student who dropped out of school when he was 14 or 15 years old and that he could not read or write.

The detective, according to Hamilton, wanted him to admit that he robbed and killed Hernandez, and that Berry had given him the gun and instructed him to rob Hernandez.

“I made a decision to talk because I ain’t want the…very first police officer to step in there,” Hamilton said. “And I ain’t want to have to deal with him no more.” Ultimately, he gave a statement to Detective Barbara Simon. "I told Detective Simon of the assault upon me by one of the officers I spoke to earlier, but she did not believe me."

Hamilton testified that the police had a version of what happened from witnesses and they wanted Hamilton to give a statement that dovetailed with the police version. “Once they got they (sic) information, they wasn’t trying to hear nothing else,” Hamilton said.

He said that Berry did not give him the gun, that Berry did not tell him to rob Hernandez, and that he did not give the gun to Berry. He said he gave the gun to Jamie Briggs.

He said he testified falsely because “I felt I had no other choice but to take that offer at the time.” Hamilton admitted that he also lied about Berry attacking him in the jail. Actually, he said, he attacked Berry. Hamilton said he was disciplined by jail officials for the attack.

Asked why he was recanting, Hamilton said, “So I can get my life together. I don’t want nobody sitting in prison doing the rest of they (sic) life and they ain’t did nothing.”

The petition was denied when the judge ruled that the recantation was not credible.

In 2019, attorney James Lawrence wrote a letter to the Wayne County Prosecutors Office Conviction Integrity Unit (CIU) asking that Berry’s case be reviewed. The letter was accompanied by Hamilton’s affidavit, an affidavit from Briggs saying that Hamilton gave him the gun the day after the shooting, and jail records showing that Hamilton was disciplined for attacking Berry in the jail.

On December 18, 2020, following the CIU investigation, Berry’s convictions were vacated and dismissed. At the same time, he pled no contest to a charge of accessory after the fact for driving Hamilton away from the shooting. He was sentenced to one to five years in prison. Because he already had spent more than 17 years in prison since the day of his conviction, Berry was released immediately.

– Maurice Possley

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Posting Date: 2/8/2021
Last Updated: 2/8/2021
State:Michigan
County:Wayne
Most Serious Crime:Murder
Additional Convictions:Assault, Illegal Use of a Weapon
Reported Crime Date:2003
Convicted:2004
Exonerated:2020
Sentence:Life without parole
Race/Ethnicity:White
Sex:Male
Age at the date of reported crime:20
Contributing Factors:Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No