Christopher D. Neighbours v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 13, 2016 Session

CHRISTOPHER D. NEIGHBOURS v. STATE OF TENNESSEE

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

No. M2015-01904-CCA-R3-PC – Filed November 14, 2016
___________________________________

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

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.
 OPINION

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

1
The Petitioner was indicted with two co-defendants, Jeffrey Downs and Mitchell Harrison.
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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
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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
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 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

2
It is unclear from the record why the Petitioner’s case languished in the trial court for almost
nine years before an amended petition was filed.
-5-
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 told, “We will make no promises to you, we
will just have to wait and see.”

In regards to a statement she made to the jury during closing argument, Ms.
Statom testified that the purpose of the statement was to summarize the evidence. Ms.
Statom testified that Mr. Downs told the truth “based on the facts of the case and the
other evidence in the case. His testimony was truthful.” When asked if she vouched for
the credibility of Mr. Downs, Ms. Statom responded that she “argue[d] the facts.”
Although she could not recall with certainty, Ms. Statom believed that she was no longer
working in the Davidson County District Attorney’s Office by the time of Mr. Downs’s
guilty plea to facilitation to commit felony murder and especially aggravated kidnapping.
She recalled that Mr. Downs received concurrent sentences of fifteen years for especially
aggravated kidnapping and twenty-five years for facilitation to commit felony murder.
Ms. Statom also remembered that the Petitioner’s trial counsel argued to the jury that Mr.
Downs would receive a plea deal from the State. She agreed that Mr. Downs’s likely
purpose in testifying was his “hope to get a reduced sentence[.]” However, she stated
that there was no implicit agreement between Mr. Downs and the State and that during
closing argument she was “arguing from the facts that had been testified to [on] the
witness stand.”

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 Assistant District Attorney General Roger Moore, the co-prosecutor in the
Petitioner’s case, testified that he had worked at the Davidson County District Attorney’s
Office since 1990. Mr. Moore stated that he currently served as the team leader in
Criminal Court Division V where he supervised three other prosecutors. He said that, as
team leader, he occasionally approves plea agreements, and he confirmed that plea
agreements on murder charges were discussed “all the way up” to the district attorney
general. He agreed that, at times, co-defendants are severed so that one can testify
against the other. Mr. Moore recalled that only once has he allowed a cooperating co-
defendant to plead guilty prior to testifying. He explained that if a cooperating co-
defendant pled guilty before testifying, there would be no recourse for the State if the co-
defendant decided not to cooperate after entering a plea. Mr. Moore stated that, when a
cooperating co-defendant agrees to testify against a defendant, the cooperating co-
defendant is “hoping for” consideration in exchange for truthful testimony but realizes
“that it will be [the prosecutor’s] decision . . . as to what that consideration will be.”

Trial counsel testified that he had practiced law for thirty-four years and that the
emphasis of his work had been on criminal defense. He stated that he was retained to
represent the Petitioner and that the case proceeded to trial in 1997. Regarding the facts
of the case, trial counsel explained:

[T]his was basically a situation involving several players, some were
charged, some were not, basically it was a marijuana transaction that ended
up unsatisfactorily to some of the individuals, three pounds of marijuana as
I recall was involved, one defendant from I believe out of town in essence
seemed to have ripped off the other individuals that were at the home of
Mr. Downs.

The testimony indicated that at some point in time [the Petitioner]
arrived in the apartment complex with his girlfriend who is a sister of an
individual, Mr. Terry Garvin, who later commits suicide.

The testimony indicated that when [the Petitioner] arrived that things
escalated as far as some acts of violence. [The Petitioner] had a weapon
that Mr. Downs I believe picked up a golf club and beat the victim and then
ultimately the victim in the case was placed into a car and ended up in Mill
Creek off of Nolensville Road where he was found several weeks later
deceased.

He agreed that there was no physical evidence that the Petitioner participated in the
murder but that the State’s theory was that the Petitioner was the “mastermind” “in
charge of the whole operation.”
-7-
 According to trial counsel, Mr. Downs’s testimony was the “lynchpin” of the
State’s case against the Petitioner. Trial counsel testified that his attack on Mr. Downs’s
credibility was the most significant part of the trial. Trial counsel cross-examined Mr.
Downs as vigorously as he could. He specifically asked Mr. Downs about whether there
was a plea offer prior to his testimony and asked Mr. Downs about his motivation for
testifying. Trial counsel recalled that he tailored his cross-examination to show that Mr.
Downs had a reason to testify as he did—to get leniency from the State.

Trial counsel testified that it was clear before trial that Mr. Downs would testify
against the Petitioner. Trial counsel received no information from the State regarding a
plea offer to Mr. Downs, which was not unusual. Trial counsel recalled that Mr. Downs
eventually received a fifteen-year sentence, despite facing a potential sentence of life
without parole. He said that he conveyed to the jury that “Mr. Downs surely must have
had an expectation of receiving favorable treatment,” even though Mr. Downs denied it
from the witness stand.

Trial counsel recalled that Mr. Moore said during closing argument that Mr.
Downs could be facing a sentence of life without parole. He did not believe that Mr.
Moore would deliberately make a false statement to the jury. He explained that an
attorney could advise a client to testify without a plea deal in place and that such advice
would be based on the attorney’s experience with and opinion of the prosecutor.

On cross-examination, trial counsel testified that the jury in the Petitioner’s case
was instructed regarding the credibility of witnesses. Additionally, the court instructed
the jury on accomplice testimony and the need for corroboration, and trial counsel argued
to the jury that Mr. Downs’s testimony was not sufficiently corroborated.

Appellate counsel testified that he had practiced law for twenty-six years and that
half of his practice was devoted to criminal cases, including criminal appeals. Appellate
counsel explained that, at trial, he represented the Petitioner’s co-defendant, Jeffrey
Downs, but that Mr. Downs’s case was eventually settled. Several years later, the
Petitioner’s family contacted appellate counsel and hired him to work on the Petitioner’s
direct appeal. Appellate counsel testified that he checked with the Board of Professional
Responsibility to ensure that he could ethically represent the Petitioner. He further
testified that the Petitioner waived any conflict in his representation.

Appellate counsel recalled that Mr. Downs had been charged with first degree
murder and faced a sentence of life without parole. Regarding a potential plea deal
between the State and Mr. Downs, appellate counsel testified that there “wasn’t a deal”
and that “there [were] no promises” made to Mr. Downs by the State. Appellate counsel
-8-
recalled that Ms. Statom and Mr. Moore indicated that they would consider Mr. Downs’s
request for a plea deal after the Petitioner’s trial. Appellate counsel explained that
because he had previously worked with Ms. Statom and Mr. Moore he “hoped” Mr.
Downs would get a deal. However, appellate counsel could not specifically recall any
conversations he had with Mr. Downs that led to Mr. Downs’s testifying at the
Petitioner’s trial.

Appellate counsel testified that there were no promises from the State as to a plea
offer, but appellate counsel might have had indications that there could be a deal if Mr.
Downs testified. Otherwise, appellate counsel would not have allowed Mr. Downs to
make incriminating statements at the Petitioner’s trial. Appellate counsel explained that
he wanted to get a plea deal in writing before Mr. Downs’s testimony, but the State
would not do so. Appellate counsel testified that the State “had a very strong case”
against the defendants and that several defendants, including Mr. Downs, had already
made statements to police. Appellate counsel stated that he had expected that Mr. Downs
would receive a plea deal, and counsel presumed that Mr. Downs also expected a deal.

Appellate counsel recalled that he raised the issue of the sufficiency of the
evidence on direct appeal in the Petitioner’s case, but he did not raise any argument
regarding the Petitioner’s sentence. He explained that he “had a legitimate shot at the
sufficiency [issue], and if I went into the sentencing the only thing in my professional
opinion it would have done was eliminated any real shot I had at the sufficiency.”
Appellate counsel stated that he wanted to divert the appellate court’s attention from the
sentencing hearing testimony which was damaging to the Petitioner and for the appellate
court to focus solely on the sufficiency argument that “you cannot kidnap a dead man.”
He stated that counsel on appeal must:

[W]ean out the stuff to keep the Court on focus as to what you really want
them to look at and in this case I had to make a choice and my professional
opinion was I had a shot at the sufficiency. I didn’t think in looking back
on it I still don’t think that I could have overcome the consecutive
sentencing issue.

On cross-examination, appellate counsel agreed that Mr. Downs gave a taped and
recorded statement to the police, and he stated that he went over that recorded statement
with Mr. Downs before Mr. Downs made the decision to testify against the Petitioner.

At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently entered a written order denying relief. This timely appeal
followed.

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 II. Analysis

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.

Due Process

The Petitioner first asserts that the State violated his constitutional right to due
process by failing to disclose what he claims was “an implicit agreement” between the
State and Mr. Downs. He argues that due process required the State to disclose prior to
trial “any potential plea deal” for Mr. Downs’s testimony so that such information could
be used to impeach Mr. Downs. The Petitioner also contends that his right to due process
was violated when the prosecutor failed to correct “false testimony” from Mr. Downs
concerning the lack of a deal with the State. The State responds that the Petitioner failed
to establish that any agreement existed between the State and Mr. Downs. Moreover, the
State argues that trial counsel was aware of Mr. Downs’s intention to testify, trial counsel
cross-examined Mr. Downs to expose his bias, and trial counsel specifically addressed
Mr. Downs’s hope for consideration for his testimony during that cross-examination.

In Brady v. Maryland, the United States Supreme Court held that “suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). In order to establish a
Brady violation, four prerequisites must be met:

- 10 -
 1. The defendant must have requested the information (unless the evidence is
obviously exculpatory, in which case the State is bound to release the information
whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). “The prosecution is not required to
disclose information that the accused already possesses or is able to obtain . . . or
information which is not possessed by or under the control of the prosecution or another
governmental agency.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992)
(citing State v. Caldwell, 656 S.W.2d 864, 897 (Tenn. Crim. App. 1983) and Banks v.
State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). The defendant must prove by a
preponderance of the evidence that a Brady violation has occurred. Edgin, 902 S.W.2d at
389.

In order to establish a Brady violation, the evidence need not be admissible; it only
needs to be favorable to the defendant. State v. Spurlock, 874 S.W.2d 602, 609 (Tenn.
Crim. App. 1993). Favorable evidence includes evidence that “provides some significant
aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story,
calls into question a material, although not indispensible, element of the prosecution’s
version of events, or challenges the credibility of a key prosecution witness.” Johnson v.
State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (internal quotation marks omitted). Evidence is
material under Brady “only if there is a reasonably probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985) (citing Strickland v. Washington, 466
U.S. 668, 694 (1984)). A “reasonable probability” is “a probability sufficient to
undermine the confidence in the outcome.” Id. (internal quotation marks omitted).

It is well-established law that “a conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall under the Fourteenth
Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959). As such, the State may not
knowingly present false testimony, and it has an affirmative duty to correct the false
testimony of its witnesses. State v. Giglio, 405 U.S. 150, 153-54 (1972). In order to be
granted a new trial based on the presentation of false testimony, the defendant must
establish that “the State presented false testimony; the State knew the testimony was
false, and the testimony was material.” State v. Cureton, 38 S.W.3d 64, 74-75 (Tenn.
Crim. App. 2000). If testimony is determined to be false, this court must determine
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whether the false testimony could have affected the jury’s judgment. Giglio, 405 U.S. at
154 (citing Napue, 360 U.S. at 271).

In rejecting this claim, the post-conviction court accredited the testimony of Ms.
Statom and appellate counsel and found there was no agreement, whether formal or
implied, between the State and Mr. Downs in advance of Mr. Downs’s testimony. The
court found that Mr. Downs was “simply following the advice of his attorney, who hoped
to be offered a deal after [Mr.] Downs testified (without any actual indication or promise
of a deal).” The court acknowledged that appellate counsel said that he might have had
an indication that there could be an offer if Mr. Downs testified but found that appellate
counsel was unsure on this point. The post-conviction court found that trial counsel
cross-examined Mr. Downs on the issue of his hope for leniency in exchange for his
testimony and that Mr. Downs’s motivation for testifying was before the jury. As such,
the post-conviction court determined that trial counsel mitigated any prejudice the
Petitioner might have faced by being unable to cross-examine Mr. Downs on specific
details of any deal.

Finally, the post-conviction court found that, even if there was an implicit
agreement between the State and Mr. Downs, the Petitioner failed to establish that the
information was material under Brady. The post-conviction court found that:

[T]he Petitioner has not shown that a reasonable probability exists that the
outcome of the proceedings would have been different had the evidence of
a plea agreement or expectations for lenienc[y] in anticipation of an
agreement been exposed. The Court finds that there was other evidence for
the jury to have convicted the Petitioner of felony murder—particularly the
testimony of Ronnie McAllister, who was not a co-defendant—and that
also corroborated [Mr.] Down[s]’s testimony.

On appeal, the Petitioner disputes the post-conviction court’s finding that no
agreement existed between the State and Mr. Downs and argues that “the protestation by
the State and [appellate counsel] that no deal had been reached belie[s] credulity.”
However, the post-conviction court resolved all questions concerning the credibility of
witnesses, the weight and value to be given their testimony, and the factual issues raised
by the evidence, Fields, 40 S.W.3d at 456, and this court is bound by the post-conviction
court’s factual findings unless the evidence preponderates against them, Kendrick, 454
S.W.3d at 457. In this case, the record does not preponderate against the post-conviction
court’s findings. Both Ms. Statom and appellate counsel testified that there was no plea
deal between the State and Mr. Downs in advance of Mr. Downs’s testimony at the
Petitioner’s trial. Ms. Statom testified that, although appellate counsel may have been
hoping that Mr. Downs would receive some consideration for his testimony, neither she
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nor Mr. Moore gave any indication that Mr. Downs would receive anything in exchange
for his testimony. Appellate counsel recalled that Ms. Statom and Mr. Moore indicated
that they would consider Mr. Downs’s request for a plea deal after the Petitioner’s trial,
and appellate counsel explained that because he had previously worked with Ms. Statom
and Mr. Moore he “hoped” Mr. Downs would get a deal. However, appellate counsel
testified that there “wasn’t a deal” and that “there [were] no promises” made to Mr.
Downs by the State.

Because there was no plea deal—implicit or otherwise—between the State and
Mr. Downs in advance of Mr. Downs’s testifying at the Petitioner’s trial, the Petitioner
has failed to establish that his due process rights were violated based on the State’s
failure to disclose a plea deal or the prosecutors’ failure to correct allegedly false
testimony from Mr. Downs that he had no plea deal. The Petitioner is not entitled to
relief on this basis.

Ineffective Assistance of Trial Counsel

The Petitioner next contends that he was denied the effective assistance of counsel
based on trial counsel’s failure to object when the prosecutor allegedly vouched for the
credibility of Mr. Downs during closing argument. He contends that trial counsel’s
“central theme of defense” was attacking the credibility of Mr. Downs, and as such, there
was no “valid tactical reason” for failing to object to the improper argument. The
Petitioner argues that the prosecutor’s comments were also intentionally misleading
because “the evidence showed that there had to have been at least an implicit deal or
reason Mr. Downs expected a deal in return for his testimony.” The State responds that
the Petitioner failed to establish that trial counsel’s failure to object was not a tactical
decision or that the prosecutor’s comments were improper.

The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
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effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

This court has recognized five general areas of prosecutorial misconduct in closing
argument: (1) intentionally misstating the evidence or misleading the jury as to the
inferences it may draw; (2) expressing personal beliefs or opinions as to the truth or
falsity of any testimony or as to the defendant’s guilt; (3) inflaming or attempting to
inflame the passions or prejudices of the jury; (4) injecting broader issues other than guilt
or innocence of the defendant; and (5) arguing or referring to facts outside the record
unless such facts are matter of common public knowledge. State v. Goltz, 111 S.W.3d 1,
6 (Tenn. Crim. App. 2003). Improper argument constitutes reversible error if “the
conduct was so improper or the argument so inflammatory that it affected the verdict to
the [defendant’s] detriment.” Goltz, 111 S.W.3d at 5. To determine the prejudicial
impact of any misconduct, this court should consider: (1) the facts and circumstances of
the case; (2) any curative measures undertaken by the court and the prosecutor; (3) the
intent of the prosecution; (4) the cumulative effect of the improper conduct and any other
errors in the record; and (5) the relative strength and weakness of the case. Judge v.
State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

The record on appeal does not include a transcript of closing arguments from the
Petitioner’s trial. However, it appears from the post-conviction court’s order that, in
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rebuttal argument, the prosecutor said that Mr. Downs “told the truth.” The prosecutor
also said that Mr. Downs “may not” get some consideration for his testimony and that
“there is no deal[.]” In denying relief on this issue, the post-conviction court found that
the Petitioner failed to present any evidence to suggest that trial counsel’s failure to
object to these statements was “anything but a tactical decision,” noting that trial counsel
was asked no questions on the issue at the post-conviction hearing. The post-conviction
court additionally concluded that, even if it assumed deficient performance, the Petitioner
failed to show that trial counsel’s failure to object “affected the verdict.”

This court has previously recognized that “[t]he decisions of a trial attorney as to
whether to object to opposing counsel’s arguments are often primarily tactical decisions.”
Derek T. Payne v. State, No. W2008-02784-CCA-R3-PC, 2010 WL 161493, at *15
(Tenn. Crim. App. Jan. 15, 2010), perm. app. denied (Tenn. May 11, 2010); see also
Lemar Brooks v. State, No. M2010-02451-CCA-R3-PC, 2012 WL 112554, at *14 (Tenn.
Crim. App. Jan. 11, 2012), perm. app. denied (Tenn. May 16, 2012). Trial counsel “often
choose not to object to damaging evidence for strategic reasons, such as to avoid
emphasizing [the unfavorable evidence] to the jury.” Derek T. Payne, 2010 WL 161493,
at *15 (internal quotation marks omitted) (alterations in original). As a result, “testimony
from trial counsel as to why he or she did not object to the allegedly prejudicial remarks
is essential to determine whether trial counsel was ineffective.” Lamar Brooks, 2012 WL
112554, at *14. Absent testimony from trial counsel or evidence indicating that
counsel’s decision was not tactical, “we cannot determine that trial counsel provided
anything other than effective assistance of counsel.” State v. Leroy Sexton, No. M2004-
03076-CCA-R3-CD, 2007 WL 92352, at *5 (Tenn. Crim. App. Jan. 12, 2007), perm. app.
denied (Tenn. May 14, 2007).

A review of the post-conviction hearing transcript shows that trial counsel was not
asked about his failure to object to the prosecutor’s allegedly improper comments.
Because trial counsel was not asked about his failure to object, we are unable to assess
whether counsel’s lack of an objection was a matter of trial strategy. As previously
discussed, the post-conviction court found that there was no plea agreement between the
State and Mr. Downs prior to Mr. Downs’s testimony, and when asked about her
statements in closing argument, Ms. Statom testified that she was summarizing the
evidence from trial, not vouching for Mr. Downs’s credibility. Without the transcript of
closing arguments, we are unable to consider the context of the prosecutor’s comments
within the overall argument and determine if “the conduct was so improper or the
argument so inflammatory that it affected the verdict to the [defendant’s] detriment.”
Goltz, 111 S.W.3d at 5. Thus, even if trial counsel were deficient in failing to object to
the prosecutor’s statements, the Petitioner has not established that any such deficiency
resulted in prejudice.

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 Ineffective Assistance of Appellate Counsel

The Petitioner asserts that he received ineffective assistance of appellate counsel
based on counsel’s failure to challenge the imposition of consecutive sentencing on direct
appeal. A defendant has a right to effective representation both at trial and on direct
appeal. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995) (citing Evitts v. Lucey,
469 U.S. 387 (1985)). The test for ineffective assistance of counsel is the same for both
trial and appellate counsel, under the Strickland standard set forth above. Id. That is, a
petitioner alleging ineffective assistance of appellate counsel must prove both that
appellate counsel was deficient in failing to adequately pursue or preserve a particular
issue on appeal and that, absent counsel’s deficient performance, there was a reasonable
probability that the issue “would have affected the result of the appeal.” Id. at 597; see
also Carpenter, 126 S.W.3d at 886-88.

Regarding claims of ineffective assistance by appellate counsel, our supreme court
has provided:

Appellate counsel are not constitutionally required to raise every
conceivable issue on appeal. Indeed, experienced advocates have long
emphasized the importance of winnowing out weaker arguments on appeal
and focusing on one central issue if possible, or at most a few key issues.

The determination of which issues to raise on appeal is generally
within appellate counsel’s sound discretion. Therefore, appellate counsel’s
professional judgment with regard to which issues will best serve the
appellant on appeal should be given considerable deference.

Carpenter, 126 S.W.3d at 887 (internal quotation marks and citations omitted).

When a petitioner alleges that counsel was deficient for failing to raise an issue on
direct appeal, the reviewing court must determine the merits of that issue. Id.
“Obviously, if an issue has no merit or is weak, then appellate counsel’s performance will
not be deficient if counsel fails to raise it.” Id. Further, when an omitted issue is without
merit, the petitioner suffers no prejudice from appellate counsel’s failure to raise the issue
on appeal and cannot prevail on an ineffective assistance of counsel claim. Id. at 887-88.

The post-conviction court found that the Petitioner failed to establish ineffective
assistance of appellate counsel because the Petitioner offered no evidence that appellate
counsel’s decision to forego challenging the trial court’s imposition of consecutive
sentences was not a strategic decision. The court noted that the Petitioner failed to
introduce a transcript of the sentencing hearing and found that “neither the exhibits
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offered at the hearing, nor the testimony of [appellate counsel] or any other witness, are
sufficient to prove . . . that the issue would have any merit.”

In this case, it is clear from the testimony at the post-conviction hearing that
appellate counsel’s decision not to raise the issue of consecutive sentencing on direct
appeal was a strategic one. Appellate counsel testified that he believed he had “a
legitimate shot” at the sufficiency issue and that he did not challenge the imposition of
consecutive sentences because he wanted to divert the appellate court’s attention from the
sentencing hearing testimony, which was damaging to the Petitioner. Appellate counsel
stated that he had intended for the appellate court to focus solely on the sufficiency
argument and that, in his professional opinion, the issue of consecutive sentencing had no
merit. Appellate counsel’s professional judgment is entitled to considerable deference
with regard to which issues best served the Petitioner on appeal. Carpenter, 126 S.W.3d
at 887. Moreover, as recognized by the post-conviction court, the Petitioner offered no
proof that the issue of consecutive sentencing had any merit. Accordingly, the Petitioner
has failed to establish either deficient performance or prejudice from appellate counsel’s
failure to raise the issue on direct appeal.

Finally, the Petitioner contends for the first time on appeal that appellate counsel
had an actual conflict of interest at the time of his representation of the Petitioner.
However, the Petitioner did not raise the issue in his petition for post-conviction relief,
and consequently, it was not addressed by the post-conviction court. This court will not
address claims raised for the first time on appeal. See State v. Alvarado, 961 S.W.2d
136, 153 (Tenn. Crim. App. 1996). The Petitioner is not entitled to relief.

III. Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed.

____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE

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