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Neighbours v. State

Court of Criminal Appeals of Tennessee, Nashville

November 14, 2016


          Session September 13, 2016

         Appeal from the Criminal Court for Davidson County No. 97-B-1229 J. Randall Wyatt, Jr., Judge

         Christopher D. Neighbours ("the Petitioner") appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief. The Petitioner contends that: (1) his due process rights were violated when the State failed to disclose a "potential plea deal" between the State and a cooperating co-defendant, who testified against the Petitioner at trial; (2) he received ineffective assistance of counsel based upon trial counsel's failure to object to the prosecutor's vouching for a witness during closing argument; (3) appellate counsel was ineffective based upon counsel's failure to appeal the imposition of consecutive sentencing; and (4) appellate counsel had an actual conflict of interest when he represented the Petitioner on direct appeal. Upon review, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Richard C. Strong (on appeal) and J. Alex Little (at hearing), Nashville, Tennessee, for the appellant, Christopher D. Neighbours.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn Funk, District Attorney General; and Amy Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.



         I. Factual and Procedural Background

         Following a trial, a jury convicted the Petitioner of first degree felony murder and especially aggravated kidnapping, for which the Petitioner received an effective sentence of life plus twenty-five years' incarceration.[1] On direct appeal, this court summarized the facts at trial, as follows:

On January 22, 1997, the victim, Marcus Deon Fortè, was living in Nashville with a longtime friend, Jerry Robinson, while they both attended American Baptist College. A friend of Fortè's from Ohio, "E, " arrived for a visit, and Fortè requested Robinson's help in locating three pounds of marijuana for "E" to purchase.
Robinson, Fortè, and "E" visited Kenji McEwen, a friend of Robinson's, at the Service Merchandise store where McEwen worked. Robinson asked McEwen to help locate someone who would be able to sell "E" three pounds of marijuana. Subsequently, the four men went to McEwen's apartment where McEwen eventually contacted Ronnie McAllister who agreed to obtain the marijuana. McAllister did not have the entire amount of marijuana available, so he in turn contacted Jeffrey Greg Downs. At some point that evening, McAllister, Fortè, and "E" decided to go to Downs' apartment to obtain the marijuana.
Approximately forty-five (45) minutes after the trio arrived at Downs' apartment, Jimmy Garvin and Mitchell Harrison arrived with the marijuana. Downs testified that he believed that Garvin obtained the marijuana from the [Petitioner] but conceded that he was not absolutely certain of that fact. Harrison waited downstairs while Downs, Garvin, McAllister, Fortè, and "E" gathered in Downs' upstairs bedroom to conduct the sale. Shortly after they assembled in the bedroom, "E" pulled a pistol from the waistband of his pants, pointed it at the group, and stole the marijuana. During his exit, "E" threatened Harrison's life if anyone tried to follow him.
After the robbery, Garvin made a cellular telephone call. Additionally, Fortè called Robinson at McAllister's apartment to advise him of the robbery. Robinson testified that Fortè sounded "upset, angry, and excited, all at the same time." Soon after the telephone calls, the [Petitioner] arrived at Downs' apartment with his girlfriend, Terry Garvin. The scene was relatively calm until the [Petitioner] arrived. When the [Petitioner] walked through Downs' bedroom door, he immediately pointed his .35 caliber pistol at Fortè and asked him "if [Fortè's] life was worth three pounds of marijuana." Downs related that, as Fortè tried to explain the events, the [Petitioner] became angry and started pacing, cursing, and waving his gun. Downs testified that, at that point, he became frightened of being blamed because the drug deal had gone awry, and, in order to take the focus off of himself, he hit Fortè on the head with a portable telephone. Garvin then obtained a golf club from Downs' closet and began hitting Fortè in the back with the club. Harrison also struck Fortè. After the golf club broke, Garvin grabbed a nearby piece of wood and struck Fortè on the head. When blood from Fortè's head began to get on the carpet, Downs told Garvin to stop hitting Fortè. McAllister estimated that the beating lasted one hour but was unsure of the exact amount of time; however, he agreed that "it seemed like it went on for a long time." In contrast, Downs testified that the beating lasted only five minutes from the time Fortè was first struck until Fortè's hands and feet were bound. According to McAllister, the [Petitioner] kept his gun pointed at Fortè throughout the beating; however, Downs related that the [Petitioner] kept his gun in his hand but he did not point it at anyone during the assault. McAllister testified that, during the beating, he remained on the bed, too frightened of attracting similar violence to move or say anything.
Downs testified that, after the beating, the [Petitioner] suggested that they bind Fortè's hands and feet with duct tape. Downs obtained the duct tape and, at the [Petitioner's] instruction, first wound the tape across Fortè's mouth and around the back of his head. Next, Downs, Garvin, and Harrison bound Fortè's hands together, followed by his feet. Finally, they bound Fortè's hands and feet together in what was referred to at trial as the "hog-tie position." McAllister related that the [Petitioner] "took the gun, while Marcus [Fortè] was laying on the ground there and they were tying him up, he put the gun to [Fortè's] head right there and asked him if he knew what that was." Additionally, McAllister maintained that he did not hear Fortè make any noise at that time. However, Downs asserted that Fortè groaned, grunted, and tried to pull his hands away from Downs during the taping.
After Fortè was bound, Harrison suggested that they put Fortè in the trunk of Harrison's car. Downs, Garvin, and Harrison carried Fortè downstairs, went out the back door, and placed Fortè in the trunk of Harrison's waiting car. The [Petitioner], Harrison, and Garvin left the apartment while Downs, Terry, and McAllister stayed behind to clean the apartment. The three individuals who remained at the apartment used cleaning chemicals to remove the bloodstains from the carpet and the walls. Approximately two hours later, the [Petitioner], Garvin, and Harrison returned to Downs' apartment. The [Petitioner] told Downs they needed to dispose of the duct tape, the golf club, and the stick that had been used during the offense. McAllister was allowed to leave, but, before he fled, Garvin told McAllister to pay the money that "E" should have paid or McAllister would be next. Later, Downs, Garvin, Garvin's girlfriend Keanuenue Kipilii, Harrison, Terry, and the [Petitioner] met at Garvin's house. Garvin, Harrison, and the [Petitioner] laughed and joked about a rap song that had been playing on the radio while they drove around with Fortè in the trunk. The lyrics in the song referred to a "body in the trunk" and a "murder after midnight." Soon the group dispersed.
The next day, McAllister, afraid for his life, packed to return home to West Virginia. He asked his mother to send him the money to pay Garvin for the stolen marijuana. Robinson, who had become concerned about Fortè, approached McAllister while McAllister was packing his truck. He pulled a gun and ordered McAllister to reveal what had happened to Fortè. The duo then went to a bank at Harding Place Mall so that McAllister could retrieve the money his mother had sent. A concerned bank teller called the police upon seeing McAllister so distressed. Through questioning McAllister and Robinson, the police then learned of Fortè's disappearance.
Detective Jeff West with the Metropolitan Nashville Police Department began the investigation into Fortè's disappearance. He first spoke with McAllister, who originally minimized his involvement so he could escape to his home in West Virginia. Detective West then contacted Fortè's mother, Gloria Fortè Butler, and learned that she had not heard from her son. In the course of the investigation, Detective West discovered that McAllister's original statement might not be entirely truthful. Accordingly, Detective West traveled to West Virginia and spoke with McAllister again. McAllister subsequently revealed more details of the offense. While Detective West was in West Virginia, other detectives in Nashville learned that Fortè's body had been dumped in Mill Creek.
After he returned to Nashville from West Virginia, Detective West went to Garvin's home to conduct an interview. Garvin initially agreed to take Detective West to Mill Creek to show the detective the location where Fortè's body had been dumped. Prior to leaving, Garvin requested permission to go into his bedroom to get his shoes. Garvin went into his bedroom, shut the door, and therein committed suicide.
The police began an extensive search of Mill Creek for Fortè's body. Detective West discovered the involvement of Harrison, Kipilii, and the [Petitioner]. On March 25, 1997, two fishermen discovered Fortè's "badly decomposed" body in the water approximately forty (40) miles from the location where Fortè had originally been left. There was duct tape around the mouth and head of Fortè's body, and the arms and legs were taped in a "hog-tie" fashion.
Dr. Emily Ward, a forensic pathologist working as a medical examiner for Davidson County, reviewed the autopsy records and photographs in this case. Dr. Ward opined that Fortè died as a result of "homicidal violence." She related that the manner in which Fortè was bound with his arms and legs pulled behind him could have restricted his airflow sufficiently to ultimately result in death. Additionally, the tape over his mouth would have completely occluded his airway. Because of the extensive decomposition of the body, she could not conclusively determine if Fortè had died as the result of strangulation, beating, or drowning. However, Dr. Ward vehemently maintained that Fortè's death resulted from homicidal violence.

State v. Christopher D. Neighbours, No. M2000-02594-CCA-R3-CD, 2002 WL 489223, at *1-3 (Tenn. Crim. App. Mar. 28, 2002) (footnotes omitted), perm. app. denied (Tenn. Oct. 7, 2002). This court affirmed the Petitioner's conviction on direct appeal. Id. at *1.

         On October 7, 2003, the Petitioner filed a timely petition for post-conviction relief. Following the appointment of counsel, the Petitioner filed an amended petition in September 2012 and a second amended petition in November 2014.[2] At a hearing on the petition, Lila Statom testified that she served as the lead prosecutor in the Petitioner's case during her tenure with the Davidson County District Attorney's Office, where she worked from 1989 to 1998. Ms. Statom recalled that, over the years, she occasionally used the testimony of cooperating witnesses or co-defendants at trial. She testified that, when calling such witnesses, she "wanted them to tell the truth" and that she would not call them if she thought they would be dishonest. She stated, "I think as a prosecutor you do not want to hide anything from the jury. You want to be upfront with the jurors and so most all of the time we would bring out any shortcomings that the witness might have like felony convictions and the like." Ms. Statom agreed that cooperating co-defendants have an interest in helping themselves.

         Ms. Statom testified that the cooperating co-defendant in the Petitioner's case, Jeffrey Downs, entered a guilty plea after testifying at the Petitioner's trial. Ms. Statom explained that she would request that a trial court sever co-defendants for "any number of reasons" but that, in the Petitioner's case, she made a "tactical decision" to try the Petitioner's case first. Ms. Statom agreed that Mr. Downs testified at the Petitioner's trial without a plea agreement from the State and implicated himself in the victim's murder. She stated:

But [Mr. Downs's] attorney was hoping . . . that we would give [Mr. Downs] some consideration, because it was clear that each of these individuals were guilty and I believe he was hoping that we would give some consideration.

         However, she testified that neither she nor the co-prosecutor on the case gave any indication that Mr. Downs would receive anything in exchange for his testimony. She explained, "I am sure [Mr. Downs] was hoping to convince us . . . that he deserved some consideration for [his testimony][, ]" but she had "no idea what [Mr. Downs's] hope was based on." She recalled that Mr. Downs was ...

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