Murderpedia

 

 

Juan Ignacio Blanco  

 

  MALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

  FEMALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

 

 

 
   

Murderpedia has thousands of hours of work behind it. To keep creating new content, we kindly appreciate any donation you can give to help the Murderpedia project stay alive. We have many
plans and enthusiasm to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.

   

 

 

James LOWERY

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 2
Date of murder: September 30, 1979
Date of arrest: October 2, 1979
Date of birth: March 16, 1947
Victims profile: Mark, 80, and Gertrude Thompson, 80 (his former employers)
Method of murder: Shooting (.32 handgun)
Location: Tippecanoe County, Indiana, USA
Status: Executed by lethal injection in Indiana on June 27, 2001
 
 
 
 
 
 

Summary:

Mark and Gertrude Thompson were 80 years of age, in declining health, and needed assistance in caring for themselves and their property. Both were found shot to death in their country home in West Point, Indiana.

The Thompsons had earlier employed Lowery and his wife as caretakers. The Thompsons, dissatisfied with the Lowerys, asked them to leave. Lowery and his friend Jim Bennett discussed committing robbery and Lowery told Bennett he knew where he could get some money.

On September 30, 1979 Bennett picked Lowery up and followed Lowery's directions. Lowery told Bennett they were going to the Thompson's residence to force him to write a check for $9,000, then to kill and bury both Thompsons.

Janet Brown, housekeeper and caretaker for the Thompsons, was sitting in her trailer adjacent to the Thompson's garage when Lowery, armed with a pistol and sawed-off shotgun, kicked the door open and entered. After some conversation, Lowery forced her to take him into the Thompson's residence. Lowery took Brown into the kitchen where Mark Thompson was standing. He told Thompson he was being held up and then shot him in the stomach. Lowery then went to another room, forced Mrs. Thompson into the kitchen and shot her in the head. He also shot Brown, but Brown had her hand over her head when Lowery fired at her, causing injury to her hand and her head, but not fatally wounding her. A burglar alarm began ringing and Lowery became excited. He went back to and shot Mr. Thompson in the head before fleeing the scene.

Lowery admitted the killings during penalty phase testimony. Bennett pled guilty by agreement, received a 40 year sentence, and testified against Lowery at his first trial. Following reversal on direct appeal for failure to sequester the jury, a second trial ended with the same result. At the second trial, Bennett refused to testify and his previous testimony was admitted against Lowery, who was sentenced to death a second time on January 7, 1983.

Citations:

James Lowery v. State, 434 N.E.2d 868 (Ind. May 5, 1982) (Direct Appeal).
Lowery v. State, 471 N.E.2d 258 (Ind. 1984) (Attorney fees).
James Lowery v. State, 478 N.E.2d 1214 (Ind. 1985) (Direct Appeal).
Lowery v. Indiana, 106 S. Ct. 1500 (1986) (Cert. denied).
Lowery v. State, 640 N.E.2d 1031 (Ind. 1994) (PCR).
Lowery v. Anderson, 69 F.Supp.2d 1078 (S.D. Ind. July 6, 1999) (Habeas).
Lowery v. Anderson, 225 F.3d 833 (7th Cir. August 29, 2000) (Habeas).
Lowery v. Anderson, 121 S.Ct. 1488 (April 2, 2001) (Cert. Denied).
Lowery v. Anderson, ___ F.Supp.2d ___, (S.D. Ind. April 13, 2001) (Clemency).

ClarkProsecutor.org

 
 

LOWERY, JAMES # 5 & # 17

EXECUTED BY LETHAL INJECTION 06-27-01 12:29 A.M.

DOB: 03-16-1947
DOC#: 18667 White Male

Boone County Superior Court
Judge Paul H. Johnson, Jr.

Venued from Tippecanoe County

Prosecutor: John H. Meyers, John Barce

Defense: Lawrence D. Giddings, Donald R. Peyton

Date of Murder: September 30, 1979

Victim(s): Mark Thompson W/M/80; Gertrude Thompson W/F/80 (Former employers)

Method of Murder: shooting with .32 handgun

Summary: Mark and Gertrude Thompson were 80 years of age, in declining health, and needed assistance in caring for themselves and their property. Both were found shot to death in their country home in West Point, Indiana.

The Thompsons has earlier employed Lowery and his wife as caretakers. The Thompsons, dissatisfied with the Lowerys, asked them to leave.

Lowery and his friend Jim Bennett discussed committing robbery and Lowery told Bennett he knew where he could get some money.

On September 30, Bennett picked Lowery up and followed Lowery's directions. Lowery told Bennett they were going to the Thompson's residence to force him to write a check for $9,000, then to kill and bury both Thompsons. Janet Brown, housekeeper and caretaker for the Thompsons, was sitting in her trailer adjacent to the Thompson's garage when Lowery, armed with a pistol and sawed-off shotgun, kicked the door open and entered.

After some conversation, Lowery forced her to take him into the Thompson's residence. Lowery took Brown into the kitchen where Mark Thompson was standing. He told Thompson he was being held up and then shot him in the stomach.

Lowery then went to another room, forced Mrs. Thompson into the kitchen and shot her in the head. He also shot Brown, but Brown had her hand over her head when Lowery fired at her, causing injury to her hand and her head, but not fatally wounding her. A burglar alarm began ringing and Lowery became excited. He went back to and shot Mr. Thompson in the head before fleeing the scene.

Lowery admitted killings during penalty phase testimony. Bennett pled guilty by agreement, received a 40 year sentence, and testified against Lowery at his first trial. When he refused to testify at the second trial, his previous testimony was admitted.

Conviction: Murder, Murder, Attempted Murder (A Felony)

Sentencing: July 11, 1980 (Death Sentence)

Aggravating Circumstances: b (1) Burglary/Robbery; B(8) 2 murders

Mitigating Circumstances: no parental love, mental commitment as a teenager

LOWERY WAS EXECUTED BY LETHAL INJECTION ON 06-27-01 12:29 AM EST. HE WAS THE 79TH CONVICTED MURDER EXECUTED IN INDIANA SINCE 1900, AND THE 9TH SINCE THE DEATH PENALTY WAS REINSTATED IN 1977.

 
 

ProDeathPenalty.com

James Lowery, then 32, was convicted of the murders of an elderly couple during a burglary. Mark and Gertrude Thompson were killed in their home in Tippecanoe County, shot in the head on September 30, 1979.

Lowery and his wife had worked for the Lowerys as caretakers due to their poor health but had been fired a few months before. Lowery knew Mark Thompson was an attorney and thought it would be "easy money."

Janet Brown, the Thompsons new caretaker, was also shot in the head but survived her injuries. Lowery went to the Thompson's home to rob them of $9,000 and gained entrance by holding a gun to Janet's head.

Lowery immediately shot Mr. Thompson in the stomach, herded Janet and Mrs. Thompson into the kitchen and shot them both in the head. Janet managed to partially deflect the bullet with her hand, and she survived. Lowery then shot Mr. Thompson again.

UPDATE - Jim Lowery, 54, formerly of Crawfordsville, was pronounced dead at 12:29 a.m. Both the U.S. Supreme Court and the 7th U.S. Circuit Court of Appeals declined to intervene on Lowery's behalf Tuesday afternoon.

Gov. Frank O'Bannon already had refused to commute his death sentence to one of life in prison. In his five-page denial of Lowery's request for clemency, O'Bannon noted that Lowery had benefited from the work of skilled attorneys and had been convicted and sentenced to death in 2 separate trials.

The first verdict was overturned on procedural grounds. "24 jurors and 23 judges have found the death penalty appropriate in this case," O'Bannon wrote. "The process was fair, and I defer to the findings of the courts." Lowery's own stepdaughter, Heather Rice, said he used to press a gun to her head and pull the trigger when she was a child. The goal: intimidation. "Let this man finally be brought to justice," she said at the time. The board unanimously recommended against clemency.

 
 

Lowery is Put to Death for 1979 Murders

Condemned Man Slept, Ate Usual Prison Food During Final Hours Before State Execution

By John Masson - Indianapolis Star

June 27, 2001

MICHIGAN CITY, Ind. -- Convicted double-murderer James Lowery was executed by injection early this morning at the Indiana State Prison. Lowery was put to death at 12:29 a.m. for the 1979 slayings of an elderly Tippecanoe County couple.

Afterward, his attorneys, Monica Foster and Brent Westerfeld, spoke to reporters outside the prison. Foster read a lengthy handwritten statement from Lowery that ended with the words: "I am so very sorry." Lowery had made no statement inside the prison before his execution, Foster said.

In the final hours before the execution, supporters and opponents of the death penalty gathered in the parking lot outside the prison walls. The approximately 45 anti-death penalty protesters far outnumbered the handful of people who showed up to support the execution.

"I don't think it's ever right to kill somebody," said Nate Holdren, a recent graduate of Valparaiso University. "It would be a better world if we'd stop doing it." Nearby stood three pro-execution protesters; one held a sign that declared: "The penalty for murder is death." Holdren and two other Valparaiso graduates sat on a blanket, gazing at a candle. "I think it's simple hatred and a desire for vengeance," said Mia Cabibbo. "I'm all for protecting society. . . . I think we have systems in place to do that, and they're called prisons." Lowery spent much of Tuesday night sleeping, said Pam Pattison, a spokeswoman for the Indiana Department of Correction. Earlier, he met with his attorneys and the Rev. Paul LeBrun, who would administer the last rites, Pattison added.

Tuesday afternoon, the U.S. Supreme Court and the 7th U.S. Circuit Court of Appeals declined to intervene on Lowery's behalf. Gov. Frank O'Bannon already had refused to commute his death sentence to one of life in prison. Still, Foster said, Lowery spent his last few hours thinking of others, not of himself. "He's clearly more concerned about the impact of his death on other people," said Foster, who has represented Lowery for 16 years. Just after midnight, a series of three drugs flowed into Lowery's veins.

He became the third person executed in Indiana in 16 days. Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Raul Garza were put to death by federal authorities near Terre Haute earlier this month. "Indiana has become the killing field, hasn't it?" Foster said.

John Krull, executive director of the Indiana Civil Liberties Union, warned against allowing the Hoosier state to become "the Texas of the North." "We're killing people as fast as Burger King makes hamburgers," Krull said after a sparsely attended noontime Statehouse gathering. Lowery was convicted of the murders of Mark and Gertrude Thompson, both 82 years old.

He shot the couple during a robbery. He had been fired from his job as their caregiver a few months before. In denying clemency, O'Bannon noted that Lowery had benefited from the work of skilled attorneys and had been convicted and sentenced to death in two separate trials.

The first verdict was overturned on procedural grounds. "Twenty-four jurors and 23 judges have found the death penalty appropriate in this case," O'Bannon wrote. "The process was fair, and I defer to the findings of the courts."

But death penalty opponents decried that decision, especially in light of the horrific abuse Lowery is said to have suffered during his youth. The 54-year-old Lowery told Parole Board members earlier this month that he had been raped repeatedly by employees at a state-run mental institution.

Supporters also cited his exemplary prison record. Charlie Kafoure of the Indiana Coalition To Abolish Capital Punishment noted Lowery's "heroic" role as a peacemaker on Death Row.

But others told the Parole Board about a different Lowery. His own stepdaughter Heather Rice, said he used to press a gun to her head and pull the trigger when she was a child. The goal: intimidation. "Let this man finally be brought to justice," she said at the time. The board unanimously recommended against clemency.

Lowery asked LeBrun, Foster and Westerfeld to watch the execution. He declined a special last meal in favor of standard inmate fare, a prison spokesman said. "I think he would tell you that he views his death as a private thing," Foster said. "He really doesn't like the whole circus atmosphere."

 
 

USA (Indiana): James (Jim) Lowery, white, age 54

Amnesty International

Jim Lowery is scheduled to be executed in Indiana on 27 June 2001 after more than two decades on death row. Mark and Gertrude Thompson were murdered in their home on the night of 30 September 1979.

Jim Lowery, who had briefly worked as the elderly couple's caretaker before being fired, was convicted of the murders and sentenced to death in 1980. He was retried in 1983 after winning an appeal, but was again convicted and sentenced to death.

The jury heard some evidence of Jim Lowery's background at the sentencing phase of the retrial, but the defence did not present much of the detail now available about his deprived and abused life before the crime. Specifically, it heard nothing about his appalling treatment in state mental facilities as a teenager.

Jim Lowery was born in 1947 to a 14-year-old mother and an alcoholic father. His and his four siblings' childhood was marked by poverty and parental neglect. Jim Lowery first got into trouble as a young teenager, after taking his father's car for joyriding in.

When he was 15 or 16, his parents took him to court and a judge committed him to a state mental facility, even though no evidence had been presented that he was mentally ill.

The teenager ran away from the institution several times, telling his brothers and sisters that he had witnessed inmates being given electro-shock treatment and that he was afraid this would happen to him.

He was transferred to the maximum security unit of another institution, the Norman Beatty Hospital, which has since been closed.

There he was subjected to repeated gang rapes by staff. On occasion he was held in isolation, and he witnessed further electro-shock treatment. He was released at the age of 18. He took to drugs, alcohol, and property crime, and was in and out of the prison system until the crime for which he was sentenced to die.

Another former teenage inmate of Norman Beatty, Frank Davis, was sentenced in 1996 to life imprisonment for two murders. The sentencing judge rejected the prosecution's bid for a death sentence, stating: "the Court finds of great significance the fact that the State created the monster it now seeks to destroy.

The mitigation provided by the horrors perpetrated upon Defendant while at Norman Beatty Hospital and while the State was in loco parentis with the Defendant, are so strong as to overcome the substantial aggravating circumstances also found in this case." As a 14-year-old, Davis was subjected to rape at the hands of other patients in the hospital.

At a clemency hearing on 18 June, the Indiana Parole Board heard testimony from a psychologist who recently diagnosed Jim Lowery as still suffering from post-traumatic stress disorder as a result of his treatment in the mental institutions.

The psychologist also testified that Lowery should never have been placed in those facilities. The board also heard how Jim Lowery has been a model prisoner who has not had a single disciplinary write-up in his 22 years on death row and who has been entrusted with a job as a prison porter, which allows him to be out of his cell for extended periods of time.

The board was told that Lowery had helped save another prisoner's life by calling attention to his suicide bid, and that he has been an important mediator between prisoners and the authorities at times when tensions on Indiana's death row have run high.

On 19 June, the parole board voted against clemency. Its chairman noted that there was "no question that [Lowery] was a model prisoner" whose record in the prison was "exemplary".

Jim Lowery's fate is now in Governor O'Bannon's hands. Under Article 5, Section 17 of the Indiana Constitution, he has the power to override the Board's recommendation and grant clemency.

Last year, Governor O'Bannon ordered a legislative study into the fairness of the state's use of the death penalty. That study is still in progress.

Fourteen professors at the Notre Dame School of Law, Indiana, have signed a letter stating that it is "both unwise and inconsistent with elemental notions of fairness to conduct any execution" in Indiana while the system is being studied, given that it is "possible that the State of Indiana might execute a person who would have been entitled to the benefit of the Commission's work". The letter noted that in this regard "Mr Lowery's situation creates a risk of an erroneous execution". Another five law professors from Indiana University of Law have signed a similar statement.

 
 

State Parole Board Recommends Killer's Execution; Governor Will Now Decide

By Kevin Corcoran.

Abolish Archives

June 19, 2001

Jim Lowery's effort to spend the rest of his life in prison was dealt a setback Tuesday when the Indiana Parole Board voted unanimously to recommend proceeding with his execution by chemical injection.

Citing the brutality of a double murder Lowery committed in 1979, the board's four members said the best interests of society would be served by killing him June 27 in the Indiana State Prison at Michigan City.

Lowery shot Mark and Gertrude Thompson, both 82, to death in their Tippecanoe County home during a robbery just months after the couple had fired Lowery and his wife as caregivers, according to court records.

"There were several points at which Mr. Lowery could have left the residence," said Valerie Parker, the board's vice chairman. "It was almost as if he seemed to enjoy the power he held over his victims."

Now, more than 20 years later, others are in control. Lowery and his attorneys say his life should be spared because of exemplary conduct in prison and repeated gang rapes they allege happened while Lowery, now 54, was confined to a state mental hospital as a teenager. "The state is now attempting to execute the monster that it created," said Monica Foster, one of Lowery's defense attorneys.

The Parole Board's recommendation will go to Gov. Frank O'Bannon, who is the only person who can commute Lowery's death sentence to life in prison without possibility of parole.

When Lowery was convicted, life in prison was not a sentencing option. Since it became law in 1993, defendants in capital murder cases have been nearly three times less likely to get death sentences, according to the Indiana Public Defender Council.

This change in the tide of murder prosecutions since Lowery's 1983 convictions has Foster and co-counsel Brent Westerfield scrambling in Lowery 's final days to achieve the holy grail of death penalty defense: a set of circumstances compelling enough for O'Bannon to let a Death Row inmate spend the remainder of his life behind bars. "We hope the governor's going to do the right thing," Foster said after the hearing. "We believe this is an extraordinary case."

 
 

James Lowery v. State, 434 N.E.2d 868 (Ind. May 5, 1982) (Direct Appeal).

Defendant was convicted before the Superior Court, Boone County, Paul H. Johnson, Jr., J., of murder and attempted murder, and he appealed. The Supreme Court, DeBruler, J., held that: (1) upon his timely pretrial motion for jury sequestration during trial for murder and attempted murder, defendant was entitled to have jury sequestered; (2) witness' taped statement to police before trial, offered and admitted after witness had testified she could not recall all of what she had said in statement and had left witness stand, was properly admitted over hearsay objection; (3) photograph of defendant taken on day of his arrest some two days following the charged crimes was properly admitted over objection; (4) where jury never saw plea bargain agreement between State and defendant's accomplice or knew that a polygraph examination had been administered to accomplice pursuant to agreement, any issue regarding propriety of admission of agreement because of reference therein to polygraph examination was moot on appeal; and (5) where defendant gave no waiver of appeal and no waiver of counsel, defendant was entitled to fullest assistance of counsel at every critical stage of appeal, including mandatory review of death sentence. Reversed. Givan, C. J., dissented and filed an opinion in which Pivarnik, J., concurred.

DeBRULER, Justice.

This is a direct appeal arising out of convictions on a three count indictment, charging two counts of murder and one count of attempted murder. The jury returned verdicts of guilty on each of the three counts, for the murders of an elderly couple living in West Point, Indiana, and the attempted murder of their housekeeper.

The court found appellant guilty on each of the three counts and pursuant to the provisions of Ind.Code s 35-50-2-9 (Burns 1979) sentenced him to suffer the death penalty.

The following rulings are challenged on appeal and considered in this opinion:
1. The denial of a defense motion to sequester the jury throughout the trial.
2. The admission of a taped pre-trial statement.
3. The admission of a photograph of appellant.
4. The admission of an accomplice's plea agreement.

In addition to considering the above issues, the Court on its own considers for the guidance of the bench and bar the scope of the appellate lawyer's function in appeals from convictions resulting in the sentence of death.

The record shows the following facts. Appellant and an accomplice decided to rob Mark and Gertrude Thompson, an elderly couple living in a rural area of Tippecanoe County. Appellant armed himself with a .32 caliber revolver and set out with his partner for the Thompson home on September 30, 1979.

At about 7:00 that evening, the pair entered the house trailer of the Thompson's housekeeper, which was parked near the home, and forced the housekeeper to enter the home with them. Upon confronting Mr. Thompson and having a brief exchange of words with him, appellant fired a non-fatal shot into Mr. Thompson's abdomen.

Appellant directed his accomplice to guard Mr. Thompson while he sought out Mrs. Thompson, whom he found in the den and brought into the kitchen. Very shortly Mr. Thompson managed to trip a switch that set off a siren he had attached to his barn as a means of letting his neighbors know there was an emergency at his home. Appellant panicked upon hearing the siren and fired a single shot at point-blank range into Mrs. Thompson's head, killing her.

He then turned to the housekeeper and fired a shot into her head. However, she had raised her hand to shield herself and the bullet had struck her hand first, thus reducing its velocity enough that it only barely penetrated her skull. She fell to the floor feigning death and survived. Appellant last went to Mr. Thompson and fired a single fatal shot into his head.

At appellant's trial, his accomplice and the housekeeper testified against him regarding the crime. His wife also testified regarding admissions he made to her about the murders. These admissions were made in front of the accomplice immediately after the pair returned to appellant's home in Crawfordsville.

The trial court denied a pre-trial defense motion for jury sequestration during the trial. The right asserted is based upon Public Law 1905, ch. 169, s 263, Ind.Code s 35-1-37-2 , which provides: "When the jurors are permitted to separate, after being impaneled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves, nor suffer others to converse with them, on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them."

Referring to this statute this Court has said: "At common law it was not permissible for a jury to separate even with the defendant's consent; but under our statute above quoted, it has been held and is the general practice that a jury be allowed to separate with the defendant's consent. McCorkle v. State (1859), 14 Ind. 39." Faulkner v. State, (1923) 193 Ind. 663, 669, 141 N.E. 514.

Separation of the jury proscribed in this statute occurs when jurors are permitted to return alone to the general community or to go to their respective homes, during the trial, after being duly admonished, and prior to the final charge by the court and the commencement of deliberations. The defendant's consent to separation will be presumed from a record of proceedings which is silent. Faulkner v. State, supra.

The application of this statute in cases in which the defendant faces the possibility of the imposition of the penalty of death has remained static since its enactment in 1905 to the date of this opinion.

A timely request by the defendant for the jury to be kept together during the trial in a capital case places a mandatory duty upon the trial judge to grant the request.

There is in such cases no discretion reposed in the trial court to deny that request, and no burden upon the defendant at trial or on appeal to make a showing of cause or prejudice. Whitaker v. State, (1960) 240 Ind. 676, 168 N.E.2d 212. Indeed, no case has presented itself in which a defendant has been ordered put to death by an American court as punishment for crime upon the verdict of a jury which was permitted to separate and return to commingle in the general community during the trial, over the timely objection of the accused. We therefore hold that it was reversible error for the court to deny the motion on the basis asserted and that consequently appellant must be granted a new trial.

 
 

James Lowery v. State, 478 N.E.2d 1214 (Ind. 1985) (Direct Appeal).

Defendant was convicted before the Superior Court, Boone County, Paul H. Johnson, Jr., J., of murder and attempted murder, and he appealed. The Supreme Court, 434 N.E.2d 868, reversed. In second trial, defendant was convicted before the Circuit Court, Hendricks County, J.V. Boles, J., of two counts of murder and one count of attempted murder, and he appealed. The Supreme Court, Pivarnik, J., held that: (1) testimony of officers regarding incriminating statements by defendant was properly admitted; (2) court did not err in permitting State to read transcript of accomplice's testimony at first trial since accomplice was unavailable at second trial; (3) objections to admission of portions of prior testimony of accomplice on hearsay grounds were properly overruled; (4) tape recordings of statements of defendant's former wife and attempted murder victim were properly admitted; (5) trial court did not err in permitting expert witness to give opinion about distance between victim's head and murder weapon; (6) evidence, including testimony of accomplice and testimony of attempted murder victim who gave eyewitness account of defendant's commission of the crimes and unequivocally identified defendant as perpetrator, was sufficient to sustain convictions; and (7) imposition of death penalty was not arbitrarily or capriciously arrived at and was reasonable and appropriate. Affirmed and remanded. DeBruler, J., concurred and dissented with opinion. Prentice, J., concurred in result with opinion.

PIVARNIK, Justice.

Defendant was found guilty by a jury in the Hendricks Circuit Court in a bifurcated trial of two counts of murder and one count of attempted murder. The jury recommended the death penalty for each murder conviction.

The trial court sentenced Defendant to death for the two murder convictions and to a term of fifty (50) years for the attempted murder conviction. Fifteen issues have been presented for our determination in this direct appeal as follows: 1. whether the Indiana death penalty statute constitutes vindictive justice; 2. lack of specific rules governing the review of death sentences; 3. denial of Defendant's request for funds to hire an expert to assist counsel during jury selection; 4. refusal of the trial court to permit individual voir dire of each prospective juror; 5. denial of Defendant's Motion to Suppress; 6. error in admission of trial testimony of witness James Bennett; 7. error in admission of certain State exhibits; 8. error in admitting testimony of witness George Ross; 9. error in admission of Defendant's Exhibit E on motion of the prosecution; 10. admission of opinion testimony of Dr. Miller; 11. permission of Detective Payne to testify about a pretrial identification display; 12. allowing leading questions by the prosecution; 13. error in the giving of an accomplice instruction; 14. sufficiency of the evidence; and 15. error in finding that the aggravating factors outweighed the mitigating factors.

On September 30, 1979, Mark and Gertrude Thompson were in their country home in West Point, Tippecanoe County, Indiana. Both Thompsons were past 80 years of age, in declining health, and needed assistance in caring for themselves and their property.

On that date, both were killed by gunshot in their home. Before this date, the Thompsons had employed Defendant-Appellant James Lowery and his wife as caretakers.

The Thompsons, dissatisfied with the Lowerys, asked them to *1219 leave and ordered them out of the provided trailer and off the property immediately. The Lowerys refused to leave that quickly and after some discussion, Mark Thompson gave the Lowerys a check for one-hundred ($100.00) dollars in exchange for leaving immediately.

Weeks before September 30, Lowery and Jim Bennett discussed committing a crime for pecuniary gain. Lowery told Bennett he knew where he could get some money, but he did not disclose the place at that time.

About three weeks prior to September 30, Bennett gave Lowery a .32 caliber nickel or chrome plated pistol and some ammunition.

The gun was supposedly for Barbara Lowery's protection while Lowery was not home. On September 30, Bennett picked Lowery up and followed Lowery's directions. Bennett knew, in general, that they were driving to West Point to rob Lowery's former employers.

Later, Lowery told Bennett more specifically that they were going to the Thompson's residence to force Mr. Thompson to write a check for nine-thousand ($9,000.00) dollars, then kill and bury both Thompsons.

He also planned to take Thompson's gun collection. As they approached the Thompson residence around dark, Lowery carried the pistol and Bennett a sawed-off shotgun.

Janet Brown, housekeeper and caretaker for the Thompsons, was sitting in the trailer where she lived, adjacent to the Thompson's garage, reading a book when she heard the Thompson's dog bark, and a man with a gun in his hand kicked the door open and entered.

Brown recalled having once met the man at the West Point Post Office. She and Lowery had struck up a conversation about their motorcycles. When she told Lowery she worked for the Thompsons, he had remarked that he too had worked for them at one time.

He said Mark Thompson was all right but to watch out for Mrs. Thompson as she was hateful. He recounted how they were ordered to leave the Thompsons' and how he had first requested payment of one hundred ($100.00) dollars. Brown thought Lowery spoke hatefully of the Thompsons. She identified Jim Lowery as the man who came into the trailer with a gun the evening of September 30, 1979.

After Lowery broke into Brown's trailer, he held the gun against Brown's neck and forced her to take him to the Thompson's residence. Brown saw someone with Lowery but said she did not get a good look at him.

Bennett testified similarly to Brown about these events. Lowery took Brown into the kitchen where Mark Thompson was standing. He told Thompson he was being held up and then shot him in the stomach.

After shooting Mark Thompson, Lowery forced Brown, with a gun to her head, through the kitchen and down the hall to the den where Gertrude Thompson was watching television.

Lowery ordered Mrs. Thompson to get up and move and as she was walking down the hall, he struck her in the head with the gun. Blood spurted from her head and she began to stagger.

After Lowery forced Brown and Mrs. Thompson into the kitchen, he shot Mrs. Thompson in the head and also shot Brown. Brown had her hand over her head when Lowery fired at her, causing injury to her hand and her head, but not fatally wounding her.

As she lay bleeding, not sure how seriously she was injured, the burglar alarm began ringing. Mark Thompson apparently had activated it. She testified that at that time Lowery and the person with him became excited and Lowery went back to where Mark Thompson was and she heard two more shots.

Lowery still wanted to find something to take from the house, but because the siren was ringing and they feared the police would come soon, Lowery and Bennett fled by way of the back roads. They returned to Lowery's place where they told Barbara Lowery about the shootings.

After Lowery was apprehended by the police, he made several voluntary incriminating statements to numerous police officers. Later, in the jail cell, he admitted the perpetration of these crimes to his cellmate and detailed the manner in which they were executed.

* * *

An examination of the entire record, pursuant to our responsibility to review the imposition of the death penalty, clearly supports the conclusion that imposition of the death penalty was appropriate, considering the nature of the offense and the character of the defendant.

As this opinion already amply demonstrates, there was proof beyond a reasonable doubt that this defendant intentionally killed the Thompsons. He expressed animosity toward them because of his prior relationship with them and further expressed a desire and intent to get money and property from them.

The trial judge told the defendant during sentencing, "I can find no factor that mitigates in your favor in this case. You have nothing going for you except a brutal cold blooded pre-planned killing of old people." (Record at 207). At another point he stated, "There are no, there is no justification and not even the wildest theorist can provide the justification for what you did under any circumstances of logic or reason." (Record at 205). The record patently shows the egregious nature of these offenses and the character of this offender.

The trial court carefully complied with the proper procedures pursuant to statute and case law, and we find that the imposition of death, recommended by the jury and imposed by the trial court, was not arbitrarily or capriciously arrived at and is reasonable and appropriate. We affirm the trial court in its judgment, including its imposition of the death penalty. This cause is accordingly remanded to the trial court for the purpose of setting a date for the death sentence to be carried out. GIVAN, C.J., and HUNTER, J., concur. DeBRULER, J., concurs and dissents with separate opinion. PRENTICE, J., concurs in result with separate opinion.

 
 

Lowery v. Anderson,  (7th Cir. August 29, 2000) (Habeas).

225 F.3d 833

In the United States Court of Appeals
For the Seventh Circuit

No. 99-3227

JIM LOWERY, Petitioner-Appellant,
v.
RONDLE ANDERSON, Superintendent, Indiana State Prison, Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 96-0071-C-H/G--David F. Hamilton, Judge.

Argued June 28, 2000
Decided August 29, 2000

Before Flaum, Chief Judge, Bauer and Manion, Circuit Judges.

Bauer, Circuit Judge.

Jim Lowery is under sentence of death for the 1979 murders of Mark and Gertrude Thompson. A direct appeal to the Supreme Court of Indiana won him a new trial, but upon retrial he was again convicted and again sentenced to death. His appeals thereafter were fruitless. He petitioned for collateral relief, but his challenges to the murder convictions and death sentence were unsuccessful. His attempt to win a writ of habeas corpus from the U.S. District Court also failed. Now he is before us. We find that neither his conviction nor his sentence were the result of constitutional violations and affirm the District Court's decision to deny the writ.

I. BACKGROUND

Mark and Gertrude Thompson were murdered in their home on the night of September 30, 1979 by a man they once trusted as their caretaker. The Thompsons were an elderly couple and their declining health necessitated that they hire others to help care for them and their property. During the summer of 1979, Lowery and his wife Barbara filled that role.

Only a few months before the murders, Mark Thompson fired Jim Lowery and ordered him off the Thompson property. The loss of that job included the loss of the rent-free caretaker's trailer on the Thompson property, in which Lowery and his family lived, and the loss of the modest salary. At first, Lowery refused to accept his demise, pleading with Mark Thompson that he had no money and no place to go. Thompson, however, was so dissatisfied with the Lowerys' service that he offered Lowery $100.00 if he would leave the property immediately. Lowery took the money and moved his family to an old school bus in a nearby campground.

On September 30, 1979, Lowery and his friend Jim Bennett drove to the Thompson's home intending to rob and murder the couple. Several weeks before, Lowery and Bennett had discussed committing a crime for pecuniary gain, as both were in need of money.

Lowery told Bennett he knew where he could get some money, but it was not until they were in the car on their way to the Thompson's house that Lowery told Bennett that they were going to rob the Thompsons. Lowery's plan was to force Mark Thompson to write a check for $9,000 and then to kill and bury the couple. Lowery was armed with a pistol and Bennett a sawed-off shotgun.

Lowery and Bennett arrived at the Thompson's property around dark. Janet Brown, the new caretaker, was in the trailer reading a book when she heard the Thompson's dog bark. Seconds later, the trailer door was kicked in and an armed Lowery entered, leaving Bennett outside.

Ms. Brown later told police that she immediately recognized the man as the Thompson's former caretaker. The two had met at the post office a week earlier and had struck up a conversation. When she told Lowery that she worked for the Thompsons, Lowery admitted that he had been their previous caretaker and he spoke, she thought, hatefully of them.

Lowery put the pistol against Brown's neck and forced her to take him into the Thompson's house. Bennett joined them as they crossed the lawn to the house. Inside, they found Mark Thompson standing in the kitchen. Immediately upon seeing Lowery and being told that this was a "hold up," Thompson said "You don't want to do this now, Jim." Lowery responded by shooting him in the stomach.

After shooting Mark Thompson, Lowery forced Brown, with the gun to her head, through the kitchen, down the hall, and into the den where Gertrude Thompson was watching television. Lowery ordered Mrs. Thompson to get up and to go into the kitchen. She complied. As she was walking down the hall, Lowery hit her in the head with the gun. She began to bleed, but was able to make it into the kitchen, where Lowery shot her once in the head at close range. Gertrude Thompson died before help could arrive.

Lowery also shot Janet Brown, but because she put her hands in front of her, the shot was deflected and she was grazed but alive. She wisely lay on the floor pretending to be dead. As she lay there, she heard the burglar alarm sound. Somehow, despite his wound, Mark Thompson had activated it, obviously greatly distressing Lowery and Bennett. Lowery went back to where Mark Thompson was, and Brown heard two more shots. Lowery and Bennett then fled.

Later, when she was certain the two men were gone, Brown called the police. When they arrived, Gertrude Thompson was dead and Mark Thompson was dying from a gunshot wound to the head. Before his death, Mark Thompson was able only to say that four "monkeys" assaulted him. His son testified that Mr. Thompson used the term "monkeys" when he could not remember someone's name.

Using the back roads, Lowery and Bennett returned to the old school bus. They told Lowery's wife, Barbara, about the shootings. Lowery was arrested two days later. Bennett the day after that. After his arrest, Lowery made several incriminating statements to police officers. He also told his cellmate of his crimes, describing them in a detailed manner. Before trial he challenged the admissibility of these statements, but was successful in excluding only some.

The prosecution struck a deal with Bennett. In exchange for his testimony against Lowery and a plea of guilty, the State dropped the habitual offender charge against Bennett and its request for the death penalty. It also guaranteed Bennett a sentence of 40 years.

Bennett testified that he and Lowery had planned to rob the Thompsons and that Lowery shot the Thompsons and Ms. Brown during the attempted burglary. Brown identified Lowery in court and testified that he was the person who shot her and the Thompsons. Barbara Lowery also testified, recounting how her husband and Bennett left the camp with a handgun and a shotgun, saying they were "off on a caper." When they returned later that night, she said, they were visibly upset and shaking, with Bennett explaining that it "went bad," and, in Lowery's presence, saying "he" (meaning Lowery) shot them in the head.

The jury convicted Lowery of two counts of murder and one count of attempted murder and recommended that he be put to death. The judge sentenced him to death. The Supreme Court of Indiana reversed Lowery's convictions on direct appeal because the trial court failed to sequester the jury. Lowery v. State, 434 N.E.2d 868 (Ind. 1982). Lowery was tried a second time.

Bennett refused to testify at the second trial. He wanted a "better deal" on his plea bargain. The State refused. Bennett was brought before the court (out of the jury's presence) and refused to be sworn in. The court threatened to hold Bennett in contempt, but Bennett still refused to testify. He was held in contempt.

The next day, this procedure was repeated and the same result obtained. Frustrated, the trial judge told Bennett that if he continued to refuse to testify, the court would order the prosecutor to bring murder charges against Bennett because he had violated his plea agreement. Both the prosecutor and the defense counsel agreed that such an order was beyond the scope of the court's authority and the court recanted. Before Bennett was aware that the threat of prosecution had been removed, however, he changed his mind and agreed to testify.

That change was short lived. Once Bennett was advised that the only penalty for refusing to testify was to be held in contempt of court, he again refused to testify. The court then declared Bennett to be unavailable and allowed the prosecutor to read Bennett's testimony from the first trial to the jury. The jury convicted Lowery of the murders of Mark and Gertrude Thompson and the attempted murder of Janet Brown.

At the sentencing phase of the trial, the prosecution argued for the death penalty, saying it was justified because the murders were committed during an attempted burglary (an aggravating factor) and because there were multiple murders. Lowery's mother, father and youngest sibling testified on Lowery's behalf, as did a psychiatrist retained by the defense. Lowery also took the stand, admitting to the crimes. Nevertheless, the jury recommended the death penalty. The trial judge sentenced Lowery accordingly.

The Supreme Court of Indiana affirmed the murder convictions and death sentences. Lowery v. State, 478 N.E.2d 1214 (Ind. 1985). However, it later reversed the conviction of attempted murder, saying the jury had been wrongly instructed on that count. Lowery v. State, 640 N.E.2d 1031 (Ind. 1994). The State chose not to retry Lowery for the attempted murder. The U.S. District Court denied habeas relief. Lowery v. Anderson, 69 F.Supp.2d 1078 (S.D.Ind. 1999).

Lowery appeals, claiming that the introduction of Bennett's prior testimony violated his Sixth and Fourteenth Amendment rights, that the State and trial court violated Caldwell v. Mississippi, 472 U.S. 320 (1985), by leading the jury to believe that its recommendation to the judge concerning the death penalty carried less weight than in fact it does, and that he was denied effective assistance of counsel. We affirm.

II. DISCUSSION

Federal courts may grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. sec.2254; Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir. 1996). Because Lowery filed his petition before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, our review is plenary. Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc) rev'd on other grounds 521 U.S. 320 (1997). We must accept as true the reasonable factual findings of the state courts, Abrams v. Barnett, 121 F.3d 1036, 1038 (7th Cir. 1997), but questions of law or mixed questions of law and fact are considered de novo. Brewer v. Aiken, 935 F.2d 850, 855 (7th Cir. 1991). Furthermore, we may consider our own jurisprudence, in addition to the jurisprudence of the United States Supreme Court. Abrams, 121 F.3d at 1037-38.

A. Admission Of Bennett's Prior Testimony

At Lowery's first trial, Jim Bennett testified for the prosecution. He did so pursuant to a plea agreement that required his testimony and guaranteed him a sentence of 40 years. Before the retrial, Bennett informed the prosecutor that he would not testify again unless the prosecutor reduced his sentence to 10 years. The prosecutor refused. Bennett, then, true to his word, refused to testify when called.

The trial judge held Bennett in contempt, but Bennett still refused to testify. As described below, this procedure was repeated several times, outside the jury's presence. Finally, Bennett was called with the jury present. He refused again to testify and was again held in contempt. At that point, the trial judge declared Bennett to be an unavailable witness and allowed the prosecutor, over Lowery's objection, to read to the jury Bennett's testimony from the first trial.

Lowery claims this was reversible error because it denied him his constitutional right to confront and cross- examine the witness against him. He also argues that Bennett was not truly "unavailable" because the State failed to exhaust other means which might have induced Bennett to testify.

The Confrontation Clause of the Sixth Amendment guarantees the right of the accused to "be confronted with the witnesses against him." U.S. Const. Amendment VI. See also Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). The main and essential purpose of confrontation is to secure for the opponent the opportunity for cross- examination. United States v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995), cert. den'd, 516 U.S. 1131 (1996). Lowery contends that he was deprived of this right when Bennett's prior testimony was read to the jury.

The Sixth Amendment confrontation clause, however, "permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant's inability to confront the declarant at trial." Maryland v. Craig, 497 U.S. 836, 847-48 (1990) (citations omitted). The confrontation clause is satisfied, and no constitutional violation occurs, when the defendant had a full and fair opportunity to cross-examine the witness at the earlier proceeding and the witness is "unavailable" for the subsequent proceeding. Mancusi v. Stubbs, 408 U.S. 204, 216 (1972).

Lowery admits that Bennett's testimony was subject to cross- examination at the first trial and does not contend that the cross-examination was less than full or meaningful. He complains that Bennett's prior testimony was improperly admitted because Bennett was not truly "unavailable" the second time around.

It is well established that a witness may be deemed "unavailable" and use of his former testimony permitted if the witness "persists in refusing to testify . . . despite an order of the court to do so." Fed.R.Evid. 804(a)(2). See also California v. Green, 399 U.S. 149, 168-69 (1970). However, there is more to consider. The prosecution must also demonstrate that it made a good faith effort to obtain the witness' testimony, in person, before the trier of fact. Ohio v. Roberts, 448 U.S. 56, 74 (1980). The lengths to which the prosecution must go to produce a witness is a question of reasonableness. Id.

Here, in an effort to secure Bennett's testimony for the second trial, the prosecutor had Bennett transported from the state prison in which he was incarcerated to a county jail so that he could be available to testify. He also attempted to talk with Bennett before calling him as a witness, and kept calling him as a witness during the trial, even though Bennett refused to testify and had been held in contempt of court. What the prosecution did not do was, as the trial judge suggested, threaten to revoke Bennett's plea agreement and try him for murder, or threaten to try him for obstruction of justice.

The Supreme Court of Indiana found that Bennett "was amenable" to these tactics and Lowery suggests that because they might have worked, the State did not act reasonably or in good faith in attempting to obtain Bennett's testimony for the retrial. The District Court disagreed, saying:

[t]he fact that other steps the prosecution did not take might also have been reasonable does not show either that it failed to make a reasonable, good faith effort to secure Bennett's testimony, or that Lowery's Sixth Amendment rights were violated by use of Bennett's testimony from Lowery's first trial.

Lowery, 69 F.Supp.2d at 1093. We agree. Although the record is silent as to why the prosecution chose not to threaten Bennett with further prosecution or charge him with a crime, there is no requirement that it do so and such decisions are well within the prosecution's discretion. Johnson v. State, 675 N.E.2d 678, 683 (Ind. 1996); LaMotte v. State, 495 N.E.2d 729, 733 (Ind. 1986). We decline to impose a rule imposing the court's will upon the prosecution and we fear that to do so would violate the separation of powers.

The fact that more, theoretically, could have been done to persuade Bennett to testify does not persuade us to reach a contrary result. If we adopt Lowery's position and mandate that the prosecution threaten recalcitrant witnesses, or possibly even charge them with minor crimes, where do we stop? A bright line test is not possible in cases such as this. We believe the better rule is to consider the totality of the circumstances and determine reasonableness and good faith on a case by case basis. In this case we find that the prosecution did make a good faith effort to secure Bennett's testimony for the retrial.

We understand the passion with which Lowery presents his argument, especially in light of the inconsistent statements Bennett made between the first and second trials. During that interim, Bennett wrote letters to state officials and to Lowery, saying in one that there were three people involved in the crime and, in another, that Lowery was not present when the crime occurred. In each instance, he offered to exchange information for a further reduction in his sentence.1

Lowery argues that he was irrevocably prejudiced by the prosecution's failure to procure Bennett as a live witness so that he could cross-examine him with this new information. He asks that we review this claim under the harmless error standard of Chapman v. California, 386 U.S. 18 (1967), and says that once we do reversal is mandated.

Under the Chapman harmless error standard, the government has the burden of demonstrating that the error was harmless beyond a reasonable doubt. Id. at 22. We have reviewed and rejected that argument and instead adopted the standard set forth by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), which holds that an error is harmless unless the defendant can show that it had a "substantial and injurious effect or influence in determining the jury's verdict." Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert. den'd, 516 U.S. 1041 (1996). See also Fleenor v. Anderson, 171 F.3d 1096, 1101 (7th Cir. 1999), cert. den'd, 120 S.Ct. 215 (1999) (applying the Brecht standard in a capital case).

The Brecht standard recognizes that an earlier court has already reviewed the claimed error under the heightened Chapman standard and, therefore, permits a lower level of scrutiny on appeal. Here, the "new evidence" upon which Lowery relies developed before the second trial. His claims thereafter could have been reviewed by the Supreme Court of Indiana on direct appeal and on petition for collateral relief or by the U.S. District Court on the petition for writ of habeas corpus. They were not, however, because the letters and testimony regarding Bennett's alleged recantation were not offered at trial.

The Supreme Court of Indiana, in refusing to review the alleged error said "the court did not have an opportunity to rule on the offer of the letter, and there is no error presented for our review." Lowery, 478 N.E.2d at 1223-24 (Ind. 1985). Thus, contrary to Lowery's assertion, we believe that the courts before us have had an opportunity to address the claimed error and have rejected it, finding that it was either waived or did not present an issue of manifest injustice requiring the reversal of his conviction. We therefore believe the rationale behind Brecht has been satisfied and apply its standard of review to this case.

We find that Lowery has not met that burden. The trial court indicated that Lowery could inform the jury about Bennett's letter and statements, but Lowery's attorney never attempted to do so. Lowery, 478 N.E.2d at 1223. Furthermore, the jury was informed that Bennett was testifying pursuant to a plea agreement which, as the State points out, could make the jury skeptical of his testimony anyway.

But most importantly, we believe that Lowery fails to meet his burden of proving that the claimed error had a "substantial and injurious effect or influence in determining the jury's verdict" because of the wealth of corroborative information presented by the prosecution. Not only did Bennett testify that it was Lowery who shot the Thompsons and Ms. Brown, Lowery himself confessed those facts to various police officers and his cellmate and those statements were presented to the jury.

Ms. Brown also testified and identified Lowery as her attacker and as the murderer of the Thompsons. And, finally, there was the testimony of Lowery's ex-wife, Barbara. Our review of the entire record in this case convinces us that any error (and we believe there was none) in the admission of Bennett's prior testimony was harmless.

B. Role Of The Jury's Recommendation Of Death

A death sentence may not be based on "a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985). Lowery complains that he was denied due process and a fair sentencing determination because the court and prosecutor "demeaned" the jury's sense of responsibility in a "materially inaccurate and misleading manner" that violated Caldwell. The court told the jury during voir dire that "it's not the function of the jury to sentence a defendant. It is solely the responsibility of the Judge, me, and the Judge must make the final decision. The jury's decision is merely a recommendation." The prosecutor spoke likewise.

In Caldwell, the prosecutor, apparently hoping to sway timid jurors, argued to the jury that if it decided to impose the death penalty, its decision would not be the "final decision," and that its decision was "automatically reviewable" by the state's supreme court. The Supreme Court held that these comments were inappropriate and required reversal because the suggestion that "the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." Id. at 333.

Any decision based upon a jury's inaccurate perception about its role in the imposition of a death sentence is, under the reasoning of Caldwell, unconstitutional. Lowery argues to us that the court's and prosecutor's statements were inaccurate and require reversal of his sentence because they minimized the jury's role and made the juror's believe their role in imposing a death sentence was almost ceremonial. We do not agree.

To violate Caldwell, the remarks to the jury must inaccurately describe the role of the jury under state law. Romano v. Oklahoma, 512 U.S. 1, 9 (1994); Dugger v. Adams, 489 U.S. 401, 401 (1989); Darden v. Wainwright, 477 U.S. 168, 183- 84 n.15 (1986). Under Indiana law, the jury recommends to the judge whether the death penalty should be imposed. The judge must consider the jury's recommendation, but, the final decision is his. Ind. Code sec.35-50-2-9(e). In this case, the jury was informed that its role was to recommend to the trial judge whether or not to impose the death penalty. Contrary to Lowery's suggestion, the jury was properly instructed as to its role and there was no Caldwell violation.

We recently addressed, in Fleenor v. Anderson, 171 F.3d 1096, 1099-101 (7th Cir. 1999), cert. den'd, 120 S.Ct. 215 (1999), the application of Caldwell to the jury recommendation procedure in Indiana. There, the jury was repeatedly informed that its role in sentencing was to make a recommendation to the trial judge, who would make the final sentencing decision. The judge advised the jury during voir dire

In Indiana, after the trial of a case, if a defendant is found guilty, then another hearing is held before the jury, where the parties have an opportunity to present . . . evidence of aggravating and mitigating circumstances in the case and then the jury again retires to make a recommendation to the court from the jury whether they recommend the death penalty. It's not the function of a jury to sentence a defendant. It is solely the responsibility of the Judge, me, and the Judge must make the final decision. The jury's opinion is merely a recommendation to me.

Lowery, 69 F.Supp.2d at 1101, citing state court record, exhibit 28 at page 48. These words mirror, almost exactly, the words given to Lowery's jury. We found in Fleenor, and we find here, that telling the jury that its role is advisory and that the court makes the final sentencing determination does not violate Caldwell. As we said in Fleenor, "what the judge was telling the jurors was true, and it was also something they were entitled to know." Id. There being no affirmative misstatement of law or fact that could mislead the jury, we find that there was no violation of Lowery's rights.

C. Ineffective Assistance Of Counsel

The Sixth Amendment protects a defendant's right to a fair trial by providing him with a right to counsel. Strickland v. Washington, 466 U.S. 668, 684 (1984). This right is satisfied as long as counsel's conduct at trial was competent. This right is violated when counsel's conduct was so deficient as to render the trial meaningless or its result unreliable. Id. at 686. Lowery claims his trial counsel was so ineffective as to meet this standard.

To prevail on a claim of ineffective assistance of counsel, Lowery must prove

(1) counsel's representation was deficient, and (2) the deficient performance so prejudiced him as to deprive him of a fair trial. Id. at 687-88. The absence of either prong defeats his claim. Id. at 700. Our review is highly deferential, id. at 689, and we will indulge "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Galowski v. Berge, 78 F.3d 1176, 1180 (7th Cir. 1996), cert. den'd, 519 U.S. 878 (1996) (citations omitted). Indeed, we will reverse only when it has been shown with a reasonable probability "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

Lowery argues that his trial counsel provided ineffective assistance by (1) failing to introduce evidence of Ms. Brown's prior misidentification of him at the first trial, where she identified a picture of Bennett as a picture of him, (2) failing to introduce additional evidence impeaching Bennett; and (3) failing to investigate and present additional mitigating evidence during the sentencing phase of the trial. Like the District Court, we quickly dismiss Lowery's challenge to his attorney's failure to impeach Brown with the mistaken identification.

In Lowery's first trial, defense counsel showed Janet Brown a photograph of Bennett and asked whether the person in the photo was the person who shot her. Brown said "[i]t's not a very good picture. It looks like James Lowery's eyes, but it's not a very good picture of him." Counsel did not repeat the exercise or raise the prior misidentification in the second trial. Claiming that this omission was a constitutional violation, Lowery asks us to reverse his conviction.

We will not second guess a trial counsel's strategic or tactical decisions. United States v. Godwin, 202 F.3d 969, 973 (7th Cir. 2000), cert. den'd, 120 S.Ct. 2023 (2000). At a post- conviction hearing, counsel testified that he did not introduce this evidence because he considered it a "lucky fluke" and was concerned that the jury might have regarded the use of a poor quality photograph as an attempt to trick Ms. Brown. It also, he said, would have gone against his trial strategy of making no reference to Lowery's prior trial and conviction. This is likely because the court had granted a defense motion in limine to exclude any reference to the previous trial.

The District Court found that this omission was a strategic decision and did not rise to the level of ineffective assistance of counsel. We agree. Counsel can fairly have been said to have been exercising trial strategy and tactics in deciding not to challenge Brown's credibility in this manner.

Lowery also argues that his attorney was ineffective because he failed to offer Bennett's letters and other inconsistent statements during the second trial. He believes this evidence would have further impeached Bennett's credibility. The State argues that counsel's failure did not prejudice Lowery.

Our inquiry into whether Lowery was prejudiced by his counsel's omission, under Strickland, focuses on whether the claimed deficiency rendered the proceeding unreliable or unfair. Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). As the District Court noted, the jury was already skeptical of Bennett. They were aware of the existence of the plea agreement whereby he was trading his testimony in exchange for leniency, and they saw him refuse to testify and saw the judge hold him in contempt. It is hard to imagine that the jury could have held Bennett in high regard after all of that. Therefore, it can be supposed that his credibility had already been damaged in the eyes of the jury. The additional evidence probably would have had little additional impact on that front.

Furthermore, as the District Court also discussed, "Bennett's testimony on the critical points was corroborated." Lowery's ex-wife Barbara testified to her observations and to the statements made to her by both Lowery and Bennett. There was also the testimony of Janet Brown, an innocent victim who was at the wrong place at the wrong time. Her testimony was virtually unchallenged and powerful. It was also consistent with and in addition to Bennett's testimony.

Finally, there were the admissions made by Lowery to various police officers and to his cellmate. Viewed in the totality of these circumstances, we believe that the admission of this extra evidence to impeach Bennett would not have changed the jury's verdict. The omission did not, then, render the trial unfair or unreliable.

Lowery challenges the District Court's reliance on his penalty phase testimony to conclude that trial counsel's failure to offer Bennett's letters and statements did not prejudice him. The District Court said that the trial result could not be doubted as Lowery admitted on cross- examination that he murdered the Thompsons. He fears that the court's analysis renders the Strickland prejudice prong outcome determinative and puts defendants in a no-win situation if they choose to confess at the penalty phase in hopes of receiving a more lenient sentence. He correctly argues that if that were the standard, no defendant would ever confess because he could not later challenge any errors on appeal.

Although this argument contains some logic, it is inapplicable here. The District Court did not base its finding of no-prejudice on Lowery's penalty phase testimony alone. As discussed above, it found a wealth of other corroborative testimony that supported the jury's verdict. For this reason, we reject Lowery's argument and affirm the District Court's finding that he was not prejudiced by his trial counsel's failure to introduce Bennett's letters and statements.

Finally, we turn to Lowery's contention that his counsel was ineffective because he failed to introduce additional mitigating evidence at the sentencing phase of the trial. He wishes that his lawyer had presented more biographical and character evidence. The Supreme Court of Indiana found that the desired evidence would have mirrored evidence presented and been cumulative. Lowery, 640 N.E.2d at 1048. This is true. Lowery's mother, father, and brother testified that he had a rough childhood. A psychiatrist testified to his previous bouts of mental illness.

The additional evidence that he wished to present was of the same nature. It was testimony by his younger siblings that he was kind to children and that he showed kindness to them while growing up. This proffered testimony, as the courts before us found, would not have added much and would have been largely repetitive. Although we understand Lowery's wish to present as much evidence as possible to humanize him to the jury and avoid the death penalty, we cannot say that his trial counsel's failure to offer this evidence was a violation of his constitutional rights.

III. CONCLUSION

For the foregoing reasons, the judgment of the District Court is affirmed.

AFFIRMED.

*****

Note:

1

He also reportedly told prison officials that he was high on drugs at the time of the crime and that he was going to "fuck up" the second trial by saying that Lowery wasn't there.

 

 

 
 
 
 
home last updates contact