Lowery v. Anderson, IP 96-71-C-H/G.

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Citation69 F.Supp.2d 1078
Docket NumberNo. IP 96-71-C-H/G.,IP 96-71-C-H/G.
PartiesJim LOWERY, Petitioner, v. Rondale ANDERSON, Superintendent, Respondent.<SMALL><SUP>1</SUP></SMALL>
Decision Date06 July 1999

Monica Foster, Indianapolis, IN, Brent Westerfeld, Indianapolis, IN, for plaintiff.

Robert L. Collins, Deputy Attorney General, Indianapolis, IN, for Defendant.


HAMILTON, District Judge.

The State of Indiana has sentenced petitioner Jim Lowery to death for two murders. Lowery has petitioned for a writ of habeas corpus setting aside the murder convictions and death sentences based on alleged violations of his federal constitutional rights. After considering the parties' submissions and the extensive state court record, the court has concluded that Lowery's convictions and death sentences did not result from any federal constitutional violation. Accordingly, the court denies Lowery's petition for a writ of habeas corpus.


The State of Indiana charged Lowery in the Tippecanoe Superior Court on October 16, 1979, with two counts of murder and one count of attempted murder. The murder victims were Mark and Gertrude Thompson, both in their eighties. The victim on the attempted murder charge was Janet Brown, the Thompsons' housekeeper and caretaker. The State of Indiana filed an information alleging two counts of a capital offense and requesting a sentence of death on each count. Following a change of venue, Lowery went to trial in the Boone Superior Court. A jury found him guilty. The court sentenced him to death on the two murder charges and to 50 years in prison for attempted murder. The Supreme Court of Indiana reversed the convictions on direct appeal in Lowery v. State, 434 N.E.2d 868 (Ind. 1982) (Lowery I) (in the absence of waiver by defendant, trial court erred by failing to sequester jury during capital trial).

On remand, after another change of venue to the Hendricks Circuit Court, Lowery was tried a second time. The jury again convicted Lowery of two murders and attempted murder. On January 7, 1983, the Hendricks Circuit Court sentenced Lowery to death on both murders and to a term of 50 years on the attempted murder conviction. The Supreme Court of Indiana affirmed the convictions and sentences on direct appeal in Lowery v. State, 478 N.E.2d 1214 (Ind.1985) (Lowery II), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986).

Lowery later sought post-conviction relief. The state trial court denied his petition. On appeal, the Supreme Court of Indiana affirmed the denial of relief as to the murder convictions and death sentences but set aside the conviction for attempted murder based on an erroneous jury instruction on that charge. Lowery v. State, 640 N.E.2d 1031 (Ind.1994) (Lowery III), cert. denied, 516 U.S. 992, 116 S.Ct 525, 133 L.Ed.2d 432 (1995). Lowery therefore is currently under two sentences of death for the two murders of which he was convicted in the Hendricks Circuit Court and which were the subject of his direct appeal in Lowery II.

The victims of the murders, Mark and Gertrude Thompson, lived in rural Tippecanoe County, Indiana. Both were elderly and in declining health, and they needed help in caring for their home and for themselves. In the months before the murders, petitioner Lowery and his wife Barbara had worked as caretakers for the Thompsons and had lived with their children in a trailer that the Thompsons had provided on their property. A few weeks before the murders, the Thompsons had become dissatisfied with the Lowerys and had ordered them to leave the property.

The murders took place on September 30, 1979, at the Thompsons' home. That evening, Janet Brown, the housekeeper and caretaker, was reading in the front room of the trailer that the Thompsons provided their caretaker next to their garage. Lowery kicked open the screen door, pointed a gun at her, and told her not to move. Brown testified that she recognized Lowery immediately as a man she had met about a week earlier at the local post office. 5 R 1017-18, 1037.2 Lowery held a pistol against Brown's neck and forced her to take him to the Thompsons' house. Outside the trailer another man joined Lowery. The accomplice was Jim Bennett, who was also charged with the murders and who testified against Lowery at his first trial.

Lowery and Brown went into the kitchen where Mark Thompson was standing. Lowery said: "This is a hold up." Mr. Thompson replied: "You don't want to do this now, Jim," calling Lowery by name. 5 R 1024. Brown saw Lowery respond by shooting Mark Thompson in the stomach Lowery then held the gun to Brown's head and forced her toward the den where Gertrude Thompson was watching television. Lowery ordered Gertrude Thompson to get up and move. As she was walking down the hall, he struck her in the head with the gun. She staggered and blood spurted from her head. Lowery forced both Brown and Mrs. Thompson into the kitchen. He then shot Mrs. Thompson in the head and killed her.

Lowery also shot Brown in the head, but Brown was holding her hand over her head and her wound was not fatal. At some point, Brown heard Bennett say the burglar alarm was sounding. See 5 R 1029. Mark Thompson had apparently managed to set it off. Brown then saw Lowery and Bennett get excited, and she observed Lowery go back toward Mr. Thompson. Brown heard one or two more shots. 5 R 1029-30. Later that night, after she realized that Lowery and Bennett had gone, Brown somehow managed to call for help. 5 R 1033-34. One of the shots Brown heard turned out to be a shot to Mr. Thompson's head. Mr. Thompson was still alive when police responded to Brown's call, but he died of his wounds seven days later. By the time police responded, Lowery and Bennett had fled by way of back roads.

After the shootings, Lowery and Bennett returned to the old school bus where Lowery and his family were living in a campground near Crawfordsville, Indiana. They told Barbara Lowery about the shootings. See 7 R 1515. Lowery was arrested two days later in Crawfordsville, Indiana. After his arrest, he made incriminating statements to several officers. The trial court suppressed some but not all of those statements because of Miranda violations. See generally Lowery II, 478 N.E.2d at 1218-19 (summarizing facts of the case).

The case against Lowery was based on three principal lines of directly incriminating evidence. First, Brown identified Lowery as the person with the gun who shot her and the Thompsons. Brown identified Lowery from a photo array while she was in the hospital recovering from her wounds. She also identified Lowery in court during the trial. Second, under a plea agreement, Jim Bennett also testified about the killings and testified that Lowery was the one who had shot the Thompsons and Brown. Third, several police officers testified about the unsuppressed statements that Lowery made shortly after his arrest in which he admitted involvement in the murders.

The prosecution also offered some additional corroborative evidence. This included testimony from Barbara Lowery (Lowery's wife at the time of the murders) that Lowery and Bennett had left the camp with a handgun and a shotgun and said they were going out on a "caper," 7 R 1511-12, then returned much later that night, very upset, shaking. In Lowery's presence, and without contradiction, Bennett told Lowery's wife "oh god, it went bad," and "oh god, he shot them right in the * * * head." 7 R 1513-15. The corroborative evidence also included a detailed account of the murders that Lowery gave to a cell-mate in the Tippecanoe County Jail. See 7 R 1721-39. In his petition, Lowery challenges each of the three principal lines of direct evidence against him.

Lowery's Claims

Lowery asserts that his convictions and sentences resulted from violations of his federal constitutional rights. Some of his claims apply to the convictions, some to both the convictions and sentences, and some only to the sentences. Lowery has made no claim of "actual innocence" here. See 9 R 2196-97 (during penalty phase of trial, Lowery admitted shooting the Thompsons). Lowery claims his rights were violated as follows:

1. The trial court violated his Sixth Amendment right to confront the witnesses against him at the second trial when it allowed the prosecution to read as evidence Jim Bennett's testimony from the first trial.

2. The trial court violated his Fifth and Sixth Amendment rights by allowing law enforcement officers to testify about incriminating statements he made while in custody.

3. He was denied due process of law and a reliable sentencing determination by the prosecutor's misstatements of the law and evidence, and by arguments that inflamed the jury and urged the jury to render verdicts for improper reasons at both phases of the trial.

4. Under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), he was denied due process of law and a reliable sentencing determination because the jury was told that its verdict at the penalty phase of the trial was only a recommendation to the judge, who makes the actual sentencing decision under Indiana law.

5. His constitutional rights were violated when the prosecutor requested the death penalty without intervention of a grand jury or other neutral decision-maker, at least in light of evidence that the prosecutor had been acquainted with the victims and that the victims' son was the circuit judge in the prosecutor's (and the victims') home county.

6. His constitutional rights were violated at the penalty phase when the trial judge failed to instruct the jury that Lowery was presumed innocent of the aggravating factor of committing attempted burglary and failed to instruct the jury on the...

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2 cases
  • Canaan v. Davis, Cause No. IP 97-1847-C H/K (S.D. Ind. 1/10/2003)
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • January 10, 2003
    ......See, e.g., Miller v. Anderson, 255 F.3d 455, 456-59 (7th Cir. 2001); Redmond v. Kingston, 240 F.3d 590, 591-92 (7th Cir. 2001); .... 5. Testifying at one's death penalty hearing carries some risks, as well. See Lowery v. Anderson, 69 F. Supp.2d 1078, 1115-16 (S.D.Ind. 1999) (defendant had admitted murders under ......
  • Lowery v. Anderson, 99-3227
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 29, 2000
    ...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 r......

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