Lowery v. Anderson

Decision Date29 August 2000
Docket NumberNo. 99-3227,99-3227
Citation225 F.3d 833
Parties(7th Cir. 2000) JIM LOWERY, Petitioner-Appellant, v. RONDLE ANDERSON, Superintendent, Indiana State Prison, Respondent-Appellee
CourtU.S. Court of Appeals — Seventh Circuit

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. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] 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.


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.


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...

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