Lowery v. State, No. 483S116

Docket NºNo. 483S116
Citation478 N.E.2d 1214
Case DateJune 04, 1985
CourtSupreme Court of Indiana

Page 1214

478 N.E.2d 1214
Jim LOWERY, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 483S116.
Supreme Court of Indiana.
June 4, 1985.

Page 1218

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant (defendant below).

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

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

Page 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.

I

Appellant claims the Indiana Death Penalty Statute violates the Indiana Constitution,

Page 1220

Art. 1, Sec. 18, which provides, "The penal code shall be founded on the principles of reformation and not of vindictive justice." We have reviewed this issue on many occasions and have found that the death penalty, as part of our criminal code, does not violate the Constitution. In Dillon v. State, (1983) Ind., 454 N.E.2d 845, 852, cert. denied, (1984) --- U.S. ----, 104 S.Ct. 1617, 80 L.Ed.2d 145 we pointed out:

"[A]rticle 1, Section 18 of the Indiana Constitution is an admonition to the legislative branch of the state government and is addressed to the public policy which the legislature must follow in formulating the penal code. It applies to the penal laws as a system to insure that these laws are framed upon the theory of reformation as well as the protection of society. Schiro v. State, (1983) Ind., 451 N.E.2d 1047; Williams v. State, (1982) Ind., 430 N.E.2d 759, appeal dismissed, (1982) 459 U.S. 808, 103 S.Ct. 33, 74 L.Ed.2d 47; Brewer v. State, (1981) Ind. , 417 N.E.2d 889, cert. denied, (1982) 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384; Judy v. State, (1981) Ind. , 416 N.E.2d 95; French v. State, (1977) 266 Ind. 276, 362 N.E.2d 834."

Defendant does not present any reason for changing our rationale and holdings in these cases. Thus, we affirm our position in the above cited cases and hold the Indiana death penalty does not violate the vindictive justice provision of the Indiana Constitution.

II

Appellant next claims the Indiana Supreme Court has failed to establish necessary rules providing for meaningful appellate review of the death sentence. This Court has already decided this issue by holding in several cases that existing Supreme Court rules appropriately provide for the meaningful appellate review of every death sentence. Burris v. State, (1984) Ind., 465 N.E.2d 171, cert. denied, --- U.S. ----, 105 S.Ct. 816, 83 L.Ed.2d 809; Daniels v. State, (1983) Ind., 453 N.E.2d 160, reh. denied; Williams v. State, (1982) Ind., 430 N.E.2d 759, appeal dismissed, 459 U.S. 808, 103 S.Ct. 33, 74 L.Ed.2d 47, reh. denied, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626; Brewer v. State, (1981) 275 Ind. 338, 417 N.E.2d 889, cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384, reh. denied, 458 U.S. 1132, 103 S.Ct. 18, 73 L.Ed.2d 1403.

For reasons expressed in these opinions, Defendant's argument fails on this issue.

III

Prior to trial Defendant filed a motion for permission to use the assistance of a juristic psychologist during the jury voir dire process at public expense. Appellant claims the trial court abused its discretion by denying this motion.

In Indiana, appointment of experts to assist the defense is a matter reversed only on a showing of abuse of discretion. Griffin v. State, (1981) 275 Ind. 107, 415 N.E.2d 60; Owen v. State, (1979) 272 Ind. 122, 396 N.E.2d 376. The same standard is applicable to capital cases wherein the accused requests expert assistance for the voir dire portion of the trial. Thomas v. State, (1984) Ind., 459 N.E.2d 373. Defendant does not give any specific reason why an expert was necessary for the voir dire questioning. On a similar question, the Seventh Circuit, U.S. District Court found that while some experts had been used in the jury selection process, this is hardly necessary for an adequate defense. U.S. v. Harris, (7th Cir.1976) 542 F.2d 1283. Defendant has failed to establish an abuse of discretion and we find no error on this issue.

IV

Prior to trial Defendant filed a written motion requesting individual voir dire examination of...

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74 practice notes
  • Lowery v. Anderson, No. IP 96-71-C-H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • July 6, 1999
    ...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 Lowery later sought post-conviction relief. The state tri......
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1992
    ...that depict graphically the injuries of the victim. Fozzard v. State (1988), Ind., 518 N.E.2d 789; Lowery v. State (1985), Ind., 478 N.E.2d 1214. Photographs that demonstrate a witness's testimony are generally admissible. Fozzard, 518 N.E.2d at 793. To exclude them from evidence, a defenda......
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...v. State (1985), Ind., 484 N.E.2d 949, cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986); Lowery v. State (1985), Ind., 478 N.E.2d 1214, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). The rationale of the rule suggested by appellant is insufficiently pe......
  • Coleman v. State, No. 45S00-9203-PD-158
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1998
    ...Ind. 122, 396 N.E.2d 376. The appointment of experts is left to the sound discretion of the trial court, Lowery v. State (1985), Ind., 478 N.E.2d 1214, 1220, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986), and only an abuse of that discretion will result in a reversal. H......
  • Request a trial to view additional results
74 cases
  • Lowery v. Anderson, No. IP 96-71-C-H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • July 6, 1999
    ...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 Lowery later sought post-conviction relief. The state tri......
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1992
    ...that depict graphically the injuries of the victim. Fozzard v. State (1988), Ind., 518 N.E.2d 789; Lowery v. State (1985), Ind., 478 N.E.2d 1214. Photographs that demonstrate a witness's testimony are generally admissible. Fozzard, 518 N.E.2d at 793. To exclude them from evidence, a defenda......
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...v. State (1985), Ind., 484 N.E.2d 949, cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986); Lowery v. State (1985), Ind., 478 N.E.2d 1214, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). The rationale of the rule suggested by appellant is insufficiently pe......
  • Coleman v. State, No. 45S00-9203-PD-158
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1998
    ...Ind. 122, 396 N.E.2d 376. The appointment of experts is left to the sound discretion of the trial court, Lowery v. State (1985), Ind., 478 N.E.2d 1214, 1220, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986), and only an abuse of that discretion will result in a reversal. H......
  • Request a trial to view additional results

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