Court of Criminal Appeals of Tennessee, Nashville
CHRISTOPHER D. NEIGHBOURS
STATE OF TENNESSEE
Session September 13, 2016
from the Criminal Court for Davidson County No. 97-B-1229 J.
Randall Wyatt, Jr., Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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.
L. Holloway, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Timothy L. Easter, JJ.,
L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
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. 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
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
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
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
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
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. 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
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
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.
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 ...