"Man Put to Death for Gas Station Killings," by Stan Bailey. (August 8, 2003)

ATMORE - Nineteen years after he killed three men and a woman in a service station robbery near Attalla, Thomas J. Fortenberry drew his last breath shortly after 6 p.m. Thursday in the death chamber at Holman Prison.

Fortenberry, 39, died by lethal injection. He had no last words but smiled faintly, flashed an "I love you" hand sign to two prison ministry friends in an adjoining witness room, looked calmly toward the battery of fluorescent lights in the ceiling and appeared to go to sleep.

"The punishment is not in the dying, it's in the 19 years of hell he's lived through," said Ben Sherrod, a lay minister with the prison ministry Kairos, as the curtain was drawn after the execution. "You watched a Christian die, a man that's now in the arms of our Lord," Sherrod told reporters afterward. A dozen of the victims' family members watched the execution from a separate witness room through a large glass window on one side of the death chamber. "Maybe they'll find some peace. I hope so. I prayed for them," Sherrod said later.

Fortenberry was on Death Row for just more than 17 years, convicted of murdering four people during the course of a $400 robbery of the Guest Service Station on Aug. 25, 1984. Jurors found Fortenberry guilty in 1985 of murdering the station owner's son, Ronald Michael Guest, clerk Wilbur T. Nelson, customer Robert William Payne and Payne's wife, Nancy. Jurors unanimously recommended the death penalty for Fortenberry after finding him guilty of two counts of capital murder: one for robbery-murder and the other for the murder of more than one person.

Freda Andrews, Nancy Payne's sister, said she was in the witness room Thursday night but chose not to watch Fortenberry die because she was afraid she would never be able to forget the scene. The murders 19 years ago opened a book in which the final chapter was written Thursday with Fortenberry's execution, "and is not to be opened again," she said. "I feel that justice was completed today. I have peace about it." Andrews said the hearts of the victims' family members go out to Fortenberry's family. "They're victims, too," she said.

David Payne, son of the Paynes, said, "I feel in my heart that justice was done today ... I know their family's got sorrow, now. I know what we've been through. I feel for their family. My prayers are with them." Bonnie Ingram, daughter of victim Robert Payne who was 17 when her father was killed, said she still misses him, but "I've forgiven this boy and pray that God will give peace to his mother and peace to us."

Prison spokesman Brian Corbett said Fortenberry slept well Wednesday night, his last night, awoke about 5 a.m. Thursday and refused to eat breakfast. He went back to sleep until about 7:30 a.m., when he got up, showered and dressed, and had more visits with family and friends. For his final meal, Fortenberry requested shrimp but it wasn't available in the prison kitchen. He ate snacks from the vending machines in the visitation area.

Corbett said Fortenberry gave his Bible to his mother, his TV to a nephew, a cup and other items to fellow Death Row inmates. The state Department of Forensic Science picked up Fortenberry's body at the prison gate and after an autopsy was to turn it over to his family for burial in Gadsden.

ProDeathPenalty.Com

TheDeathHouse.Com

"Killer of Four Executed in Alabama," by Robert Anthony Phillips. (August 7, 2003)

ATMORE, AL - A man convicted of killing four people during a gas station robbery in 1984 was executed by lethal injection at the Holman Correctional Facility Thursday night. Tommy Fortenberry, a 39-year-old former nursing school graduate, was pronounced dead at 6:16 p.m. He became the third condemned killer executed in Alabama in 2003.

All four victims were shot during the robbery at the gas station in Attalla. Police later found the murder weapon and traced it to a gun repair shop partly owned by Fortenberry's father. During questioning by police, Fortenberry led lawmen to the location where he had disposed of the pistol after the slayings. It was the exact area that police had recovered the weapon, court documents stated. However, Fortenberry also gave several stories about the murders. In one statement, he confessed. In another, he blamed the murders on another man, who he claimed was named Harvey Underwood.

Tried To Sell Murder Weapon

In two of his statements, Fortenberry claimed he had gone to the station to rob it because he needed gambling money, giving different versions of the chain of events that led him to shoot the four people. Later at his trial, he again said that Underwood had committed the murders. But, prosecutors had Fortenberry's initial confession and the fact that a witness had testified that Fortenberry had tried to sell the murder weapon to him. The jury convicted Fortenberry and sentenced him to death in 1986. Fortenberry, only 20-years-old at the time of the murders, was a nursing school graduate, court documents stated. Fortenberry's defense lawyers said he suffered from psychological and alcohol problems.

Doom Sealed

Gov. Bob Riley had refused to grant Fortenberry clemency, sending a legal advisor to hear a pleas to save the beefy murderer's life. The Alabama Supreme Court also refused to block the execution, sending Fortenberry's lawyers to the U.S. Supreme Court in a last-ditchy attempt to halt Fortenberry's execution. Fortenberry's doom was sealed when the high court rejected his plea for a stay of execution.

National Coalition to Abolish the Death Penalty

Tommy Fortenberry, Alabama - August 7, 2003

The state of Alabama is scheduled to execute Tommy Fortenberry Aug. 7 for four murders at the Guest Service Station in Attalla. Fortenberry, a white man, allegedly shot Ronald Guest, Wilbur Nelson, and Bobby and Nancy Payne while robbing the station on Aug. 25, 1984.

In the days following the murders, Fortenberry gave several versions of the story to police investigators and court reporters; in some, he confessed to the murders, and in others, he blamed a man named Harvey Underwood. A jury convicted Fortenberry on Feb. 15, 1986. However, immediately after the verdict, the court moved on the penalty phase of the trial, for which Fortenberry’s attorneys were thoroughly unprepared.

Years later, the U.S. 11th Circuit Court of Appeals agreed that Fortenberry received ineffective assistance of counsel at the penalty phase of his trial. However, the court held that he would not have been able to provide sufficient additional mitigating evidence to alter his death sentence. Here, the court ignored critical evidence that could have been presented, namely mitigating evidence of Fortenberry’s psychological problems and struggles with alcohol addiction.

In June, the U.S. Supreme Court handed down a landmark decision in Wiggins v. Smith, ruling that a defense attorney’s failure to investigate and present available mitigating evidence in a Maryland death penalty case constituted ineffective assistance of counsel. The Wiggins ruling should certainly apply to Fortenberry’s case; the penalty phase of his trial lasted just 45 minutes, and his attorney called only one witness.

Fortenberry also has a substantial Batson claim – an argument that the state used its peremptory strikes to prevent African Americans from serving on the jury. The appellate courts found that Fortenberry failed to prove that the state’s strikes were based on race, ignoring the blatant pattern of racial discrimination in jury selection processes throughout the nation in the 1980’s.

The state of Alabama has executed two people in 2003, and 27 since the reinstatement of the capital punishment in 1976. By state law, the governor has the sole authority to grant clemency to death row inmates. Please contact Gov. Bob Riley and urge him to commute Tommy Fortenberry’s sentence to life in prison.

Tuscaloosa News

"Fortenberry Executed by Lethal Injection for Murder of Four," by Bob Johnson. (AP August 8, 2003)

The execution of Tommy Jerry Fortenberry was described as the end of a nightmare for him and the families of the four victims he was convicted of gunning down 19 years ago at an Attalla service station.

"Justice has been served," said Kelly Hathaway, niece of Nancy Payne, one of the victims of the shootings in 1984 at Guest Service Station following Fortenberry's executeion Thursday evening. "Punishment is not in the dying. It's in the 19 years of hell he's lived through," said his spiritual adviser, Ben Sherrod. Sherrod made the comment as the curtain on the window separating the witness room from the death chamber at Holman Prison was pulled shut, indicating that Fortenberry was dead.

Fortenberry died quietly. His only words were "no last words" moments before he was administered the first of three different drugs that comprised a lethal injection that took his life. Fortenberry, 39, was pronounced dead at 6:16 p.m. His body was immediately turned over to the Alabama Department of Forensic Science for an autopsy and will later be released to his family, Department of Corrections spokesman Brian Corbett said.

As the execution began at 6 p.m., Fortenberry lay mostly still on a white gurney in the stark white execution chamber. He said nothing else, but motioned twice to Sherrod of Kairos Prison Ministry, and another witness, showing them the international hand sign for "I love you." Fortenberry nodded several times to the witnesses, but mostly lay still as the color slowly drained from his face. After a few minutes, his eyes closed and his chin quivered several times. Finally, he was still. There were no sounds in the death chamber.

Twelve family members of the four victims of the Aug. 25, 1984 shootings at Guest Service Station in Attalla sat in another witness room during the execution. Freda Andrews, whose 29-year-old sister, Nancy Payne, was shot as she tried to run for help after watching her husband and two others die, said she couldn't look at Fortenberry during the execution. "I chose not to watch. This has been such a traumatic experience. The last five days I have just been sick," she said. "I feel that justice was completed today." Hathaway said Fortenberry's death in the quiet death chamber, with witnesses and ministers and a doctor standing by, was in contrast to the death of her aunt and the other three victims in a flurry of gunfire at the isolated rural service station. "I can't imagine what Aunt Nancy must have felt. She was innoceent and full of life and love," Hathaway said. "There were no appeals for her life." The execution was carried out after Fortenberry's appeals to the U.S. Supreme Court and the Alabama Supreme Court were rejected.

Fortenberry was convicted and sentenced to die for the deaths of the station owner's son, Mike Guest, 21, store clerk Wilbur Nelson, 51, and customers Bobby Payne, 43, and his wife, Nancy, 29, who had come to the station to buy soft drinks and cigarettes.

Bobby Payne's son, David, after watching the execcution, said he believed justice was done, but feels sorry for Fortenberry's mother, Betty Fortenberry. "I know she's got sorrow. She knows what we've felt for the last 19 years," David Payne said. Sherrod said Fortenberry became a Christian on death row. "You just watched a Christian die. You watched a man who is now in the arms of our lord," Sherrod said.

Gov. Bob Riley on Tuesday declined to stop the execution a day after his legal adviser, Troy King, held a clemency hearing. Fortenberry's appeal to the Supreme Court was based partly on the fact that Riley did not personally attend the clemency hearing. Fortenberry had been on death row for 17 years and in recent years was housed at Donaldson prison in Jefferson County. He was transferred to Holman on July 3 and moved into a holding cell inside the concrete block building that houses the death chamber.

Department of Corrections spokesman Brian Corbett said Fortenberry declined to eat breakfast, then was moved to a visitation area at about 8:30 a.m. and spent the day meeting with family members, including his parents, Betty and Jerry Fortenberry. Corbett said Fortenberry ate his last meal from vending machines while visiting with his family. Fortenberry had earlier said he wouldn't mind eating shrimp, but that it wasn't available from the prison cafeteria.

Fortenberry, 20 at the time of the murders, told police he needed money because of a gambling habit and was robbing Nelson at gunpoint when Guest tried to talk him into giving up his weapon and the Paynes drove up to the station, according to trial testimony and evidence at the clemency hearing. Fortenberry told police he shot Guest and Payne outside the station, returned inside to shoot Nelson, and then fired what he called a "pot" shot at Nancy Payne, who was trying to run for help. Fortenberry later claimed he was at the station, but another man shot the four victims.

WSFA-TV12

"Alabama Executes Quadruple Murderer" - August 7, 2003 6:47pm

Tommy Jerry Fortenberry has been executed by lethal injection for the deaths of four people in a 1984 robbery at an Attalla service station. The 39-year-old Fortenberry died at 6:16 p-m central time at Holman Prison in Atmore Thursday after his appeals to the U-S Supreme Court and the Alabama Supreme Court were rejected.

Fortenberry was convicted and sentenced to die for the deaths of the station owner's son, 21-year-old Mike Guest, 51-year-old store clerk Wilbur Nelson and 43-year-old customers Bobby Payne and his 29-year-old wife Nancy. The Paynes had come to the station to buy soft drinks and cigarettes. One of Fortenberry's attorneys, Jim McGlaughn of Gadsden, says Fortenberry lost his best chance to stop the execution when Governor Bob Riley turned down a request for clemency. Riley declined to stop the execution a day after his legal adviser, Troy King, held a clemency hearing.

Fortenberry's mother made an emotional plea to King to spare her son's life. But the legal adviser also heard passionate pleas from members of the victims' families that the execution should proceed as scheduled. The appeal to the Supreme Court was based partly on the fact that Riley did not personally attend the clemency hearing. Fortenberry's appeal also repeated previous claims that police coerced Fortenberry into making a confession and that his trial attorneys failed to do enough during the sentencing phase of the trial to convince jurors to spare their client's life. One of Fortenberry's attorneys, Jim McGlaughn of Gadsden, says Fortenberry lost his best chance to stop the execution when Governor Bob Riley turned down a request for clemency. Riley declined to stop the execution a day after his legal adviser, Troy King, held a clemency hearing. Fortenberry's mother made an emotional plea to King to spare her son's life. But the legal adviser also heard passionate pleas from members of the victims' families that the execution should proceed as scheduled.

The appeal to the Supreme Court was based partly on the fact that Riley did not personally attend the clemency hearing. Fortenberry's appeal also repeated previous claims that police coerced Fortenberry into making a confession and that his trial attorneys failed to do enough during the sentencing phase of the trial to convince jurors to spare their client's life.

The Times Daily

"Mother Pleads for Son's Life at Clemency Hearing," by Bob Johnson. (AP August 5, 2003)

The mother of condemned murderer Tommy Jerry Fortenberry made a tearful plea Monday for Gov. Bob Riley to save her son from death by lethal injection. Fortenberry, 39, has been sentenced to die in Alabama's death chamber at Holman Prison in Atmore at 6 p.m. Thursday for the deaths of four people who were shot down during a robbery attempt at an Attalla service station almost 20 years ago.

"The day they arrested him for murder was the worst day of my life," Betty Fortenberry told the governor's legal adviser, Troy King, during a clemency hearing at the state Capitol Monday afternoon. She said she doesn't believe her son acted alone that evening in August, 1984. "I didn't believe it then and I don't believe it to this day that he did this by himself," said Betty Fortenberry, her voice breaking as she kept taking her glasses off to wipe her eyes.

King also heard from family members of the victims, who talked about four lives being taken for no reason. "He deserves to get what he gets," said David Payne, son of one of the four victims. "I've got a 17-year-old and a 15-year-old who will never get to see their granddad because he was murdered when he went to the store to get a pack of cigarettes." King said he would talk to Riley about the case Tuesday morning and expected the governor to release a decision later in the day.

Fortenberry was convicted and sentenced to die in 1986 for the deaths of the station owner's son, Mike Guest, 21, store clerk Wilbur Nelson, 51, and customers Bobby Payne, 43, and his wife, Nancy, 29.

According to trial testimony and evidence presented at Monday's hearing, Fortenberry told police that he needed money because of a gambling habit and was robbing Nelson at gunpoint when Guest tried to talk him into giving up his gun and the Paynes drove up to buy cigarettes and soft drinks. He told police he shot Guest and Payne outside the store, returned inside to shoot Nelson and then fired a shot at Nancy Payne, who was trying to run for help. All four victims were shot with a .44 magnum Black Hawk revolver. Fortenberry later said that he was with another man who did the shooting. His attorney, Jim McGlaughn of Gadsden, told King that's the story he believes.

"I am asking for mercy here today," McGlaughn said. He said the governor will not be going easy on Fortenberry if he commutes his sentence from death to life in prison without parole at Holman Prison, a maximum security facility known as one of the state's tougher lockups. "There's nothing pleasant about Holman. Living at Holman for another 50 years is not getting away with anything," McGlaughn said.

Fortenberry's lawyers also claim that police coerced a confession from their client and that his trial attorneys did not do enough during the sentencing phase of the trial to convince jurors to sentence him to life in prison without parole instead of death. During the emotional hearing, King heard stories about the victim's lives and their deaths.

Freida Andrews said her sister, Nancy Payne, loved ceramics and her favorite food was macaroni and cheese. Her favorite song was "I Just Called to Say I Love You" by Stevie Wonder. "It was cruel and unjust to shoot a little 5-2, 125 pound woman who was in flight for her life," Andrews said. Betty Fortenberry also told King about her son, who had studied to be a nurse. "Tommy was a happy boy. He was always smiling, laughing and happy," she said, adding that her son liked sports and made good grades in school. McGlaughn said attorneys plan to go to court to seek a last minute stay if they are turned down by Riley. He said he did not know if they would file in federal court or with the Alabama Supreme Court.

Fortenberry v. State, 545 So.2d 129 (Ala.Cr.App. 1988) (Direct Appeal)

Defendant was charged in two-count indictment with capital offense of murder wherein two or more persons are killed, and robbery-murder. Following jury trial before the Circuit Court, Etowah County, Donald W. Stewart, J., jury found defendant guilty and unanimously recommended punishment by death, which sentence was imposed by trial court following separate sentencing hearing. Defendant appealed. The Court of Criminal Appeals, Bowen, P.J., held that: (1) magistrate properly issued arrest warrant based upon showing of probable cause; (2) officers did not make warrantless nonconsensual entry into suspect's home to effect arrest; (3) prosecution did not violate general rule that party may not impeach its own witness when it asked investigating officer certain questions which tended to contradict sequence of events as described by eyewitness; (4) trial court did not abuse its discretion in refusing to grant continuances of both trial and sentencing hearing before jury; (5) trial court did not abuse its discretion in admitting certain inculpatory evidence which State had failed to disclose during pretrial discovery; and (6) death sentence was proper under facts and circumstances of case. Affirmed.

BOWEN, Presiding Judge.
On August 25, 1984, four people were killed at the Guest Service Station near Attalla, Alabama. They were Ronald Michael Guest, the son of the station owner; Wilbur T. Nelson, an employee at the station; and Robert William Payne and his wife Nancy, customers present when the robbery occurred. Tommy J. Fortenberry was charged in a two-count indictment with the capital offense of murder wherein two or more persons are murdered, Alabama Code 1975, § 13A-5-40(a)(10) and robbery-murder, § 13A-5-40(a)(2). A jury found him "guilty as charged." After a sentencing hearing, that same jury unanimously recommended punishment by death. At the third stage of the capital trial proceedings, the trial judge held a separate sentencing hearing and sentenced the defendant to death by electrocution. Seven issues are raised on this appeal from that conviction. I

The defendant maintains that his confessions were obtained during an illegal detention and should not have been admitted at his trial. We disagree. In reaching this conclusion we have considered the testimony and evidence presented both at the hearing on the motion to suppress and at trial. Henry v. State, 468 So.2d 896, 899 (Ala.Cr.App.1984), cert. denied, Ex parte Henry, 468 So.2d 902 (Ala.1985).

The murders were committed on August 25, 1984. Four men were indicted but were never prosecuted after it was discovered that the juvenile who had accused them was lying. Then, in March of 1985, James Jenkins found a .44-caliber magnum Ruger Super Blackhawk revolver on the bank of Black Creek in Alabama City. The pistol contained four empty cartridges. On April 18, 1985, Etowah County Sheriff Roy McDowell received information that Jenkins had found the weapon. The sheriff obtained the pistol and cartridges from Jenkins and delivered them to a state firearms expert, Lawden Yates, at the Birmingham crime lab. On April 22, 1985, Yates examined the pistol and determined that it was the weapon used to kill the four people at the Guest Service Station.

Marlin Carter, chief of the investigators for the Etowah County Sheriff's Office, obtained written statements from Ricky Downing, Thomas Neander, and Steve Whiteside, placing the .44 magnum in the hands of the defendant "a day or so before the shooting." Carter testified, "These three people had seen this murder weapon and knew the weapon, knew where it came from. And could positively identify it. They had seen this weapon in the possession of [the defendant]." The weapon had been stolen from the defendant's father, Jerry Fortenberry, and Jerry Gable, who were partners in a gun repair business located at Gable's residence. The pistol was especially distinctive because "somebody had had fashioned a bolt to retain the cylinder pin." Based upon this information, around 6:00 on the evening of May 2, 1985, Investigator Carter and three other investigators from the Sheriff's Office went to the residence of the defendant's father, where the twenty-one-year-old defendant was living.

Investigator Johnny Grant testified that they went to talk to both the defendant and his father. The defendant's eighteen-year-old brother Terry answered the door. Carter asked for Terry's father and Terry said that he "was over at Jerry Gable's." Carter then asked if the defendant was there and Terry replied that he was. Investigator Carter said, "We would like to see him, to talk to him." Terry opened the door, said "come on in," and walked to a bedroom where the defendant was lying in bed. The four investigators followed Terry. Investigator Grant testified that the defendant had been sleeping but was awake when they entered the room. The defendant said that he had been to Montgomery the night before and had slept during that day. Carter testified that the defendant did not look tired. Carter testified that he said, "We need to talk with you, Tommy. We need to talk with you down at the Courthouse, we want you to go with us." The defendant did not say anything but "got up" and "put his clothes on." Captain Grant testified that Carter "told Tommy we needed to talk to him, would he mind coming down to our office with us, and Tommy got up" and that the defendant "agreed and came." After that, Carter sent Grant and Investigator Hershel Womack to find the defendant's father, whom they needed to question about an unrelated pistol that had been reported stolen.

Investigators Carter and Aubrey Newman took the defendant to the courthouse. The defendant was not handcuffed but was read his Miranda rights when they left the house, even though he was not questioned at that time. Carter testified that the defendant "went with us willingly out to the car." Carter testified that they arrived at the courthouse "about 6:45, or nearly 7:00" and went to the investigator's office on the third floor. At 6:53 that evening, the defendant signed a waiver of rights form. The defendant was questioned about the pistol used in the four murders at the Guest Service Station.

The defendant admitted taking the .44 magnum from his father and Gable. Between 9:00 and 10:00, the defendant, at the request of the officers, telephoned a friend. The record does not reveal the subject matter of that conversation. Around 11:00 or 11:30, the defendant was left alone with his father for "probably fifteen to thirty minutes." Investigator Carter testified that he "probably" would have allowed the father to stay with the defendant "if he had requested to." Around midnight, the defendant showed the investigators where he had disposed of the pistol, which had subsequently been discovered by Mr. Jenkins. At 12:50 on the morning of May 3, 1985, the defendant gave a tape-recorded statement, claiming that Harvey Underwood was solely responsible for the robbery and the murders. The defendant did admit that he was present when the crime occurred, that Underwood got the murder weapon from him, and that he (the defendant) threw the pistol in the creek. The defendant was placed in a cell to sleep at approximately 2:15 that morning. Investigator Carter testified that at any time prior to the tape-recorded statement, the defendant "could have gotten up and left."

During the interval of approximately six hours between the time the defendant waived his rights until the tape-recorded statement was taken, he was questioned "on and off" and given something to eat. During that time, the investigators "checked out leads" the defendant had given them "to verify whether or not he had been telling us the truth." During this time, the defendant gave three different stories. Investigator Carter testified, "We would go over each statement until he decided that it wasn't true, and he would tell us another one, story. * * * Well, he would tell the same story, and then he would tell a little bit different. So we tried to check it out for him." Captain Grant testified, "We told him that the thing didn't check out, we needed to continue talking to him about it, not that we wanted another statement or we wanted him to say something else." Grant stated, "From the time he admitted that he stole the gun, yes, he would tell us all about it, and then, we would show him, you know, tell him what we had checked out, the story out, and it didn't fit, and he would start with another one." Around 5:00 or 5:30 on the morning of May 3rd, Underwood was brought to the courthouse to face his accuser. There was testimony that this was done with the permission of both Underwood and the defendant. The defendant again accused Underwood of committing the murders, but Underwood "just practically got down on his knees and said, 'You know I didn't shoot nobody, you know. Why are you doing this?' "

At 5:25 on the afternoon of May 3rd, the defendant gave a handwritten statement admitting his responsibility for the robbery and murders. On Saturday, May 4, 1985, at 1:08 p.m., the defendant gave a detailed statement, recorded by a court reporter, admitting his guilt. On January 1, 1986, after he had escaped and been captured, the defendant gave a statement in the county jail in Bowling Green, Kentucky, wherein he again admitted his guilt.

Sometime before 5:00 on the afternoon of May 3, 1985, Investigators Grant and Carter, and William Payne, the father of one of the victims, went to the clerk's office to get an arrest warrant for the defendant. Payne did not relate any facts to the magistrate other than that he was the father of one of the victims. The affidavit merely recites that Payne "has probable cause for believing and does believe that" the defendant intentionally caused the death of four people.

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