Lowery v. State

Decision Date04 October 1994
Docket NumberNo. 32S00-9008-PD-542,32S00-9008-PD-542
CourtIndiana Supreme Court
PartiesJim LOWERY, Appellant, v. STATE of Indiana, Appellee.

Brent Westerfeld, Monica Foster, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from a judgment denying post-conviction relief. In this post-conviction proceeding below, appellant Jim Lowery unsuccessfully challenged his conviction for the knowing and intentional murder of Mark Thompson, his conviction for the knowing and intentional murder of Gertrude Thompson, and his conviction for the attempted murder of Janet Brown. He also unsuccessfully challenged the sentence of death imposed on the basis of separate counts alleging as to each killing the capital aggravators authorized by Ind.Code § 35-50-2-9(b)(1), intentional killing in the course of an attempted burglary and by I.C. § 35-50-2-9(b)(8), the commission of another murder. We hold that the trial court committed fundamental error in convicting Lowery of attempted murder. We reverse the decision of the post-conviction court denying post-conviction relief with respect to the attempted murder conviction and the resulting sentence, and remand this case to the post-conviction court. However, we affirm the post-conviction court's decision denying Lowery's post-conviction relief petition challenging his convictions and death sentences for the murders of Mark and Gertrude Thompson. In his second trial, the trial court had imposed the death sentence after considering a recommendation of such penalty by the jury. On direct appeal in Lowery v. State (1985), Ind., 478 N.E.2d 1214, this Court considered fifteen separate allegations of error and affirmed each conviction and sentence that resulted from that second trial. Earlier, this Court had reversed convictions upon these same charges and had ordered the second trial. Lowery v. State (1982), Ind., 434 N.E.2d 868.

Lowery and James Bennett plotted to commit a crime to obtain money. Lowery stated to Bennett that Lowery "knew where [they] could get some easy money." Bennett drove Lowery to the Thompson residence. Both men were armed. Lowery entered a nearby trailer where Janet Brown was staying. Brown had met Lowery previously. At gunpoint, Lowery forced Brown to accompany him to the Thompson home. When Lowery encountered Mark Thompson, Lowery stated, "This is a hold-up." Thompson replied, "You don't want to do this now Jim." Lowery shot Thompson in the stomach. Lowery proceeded to shoot Gertrude Thompson in the head. He next attempted to shoot Brown in the head as well, but Brown managed to divert the shot with her hand. Then, Lowery shot Mark Thompson again, this time in the head. Brown called the police for help after Lowery and Bennett fled. Mark and Gertrude Thompson both died from the gunshot wounds to the head. Janet Brown survived and identified appellant Lowery at trial.

The petition of appellant Lowery for post-conviction relief was based upon a plethora of grounds and issues. A hearing was held at which evidence was offered in support of such grounds. That evidence is considered below with the issues. Following the hearing, the Hendricks Circuit Court, Thomas Milligan, Special Judge, denied the petition. Lowery appeals the denial of his petition for post-conviction relief.


On appeal, Lowery raises the following claims for our consideration. The issues, as Lowery presents them, are:

1. Whether admission of a witness's prior recorded testimony was error, where the State did not do everything reasonable to make that witness available.

2. Whether the prosecutor violated Lowery's right to fundamental due process, where the prosecutor, who was friends with the victims in this case, filed a capital allegation without the utilization of a grand jury or adversarial probable cause hearing.

3. Whether the prosecutor violated Lowery's right to a fundamentally fair trial and reliable sentencing determination, where the prosecutor misstated the evidence and the law, and attempted to inflame the passions and emotions of the jury in both phases of the trial.

4. Whether the trial judge violated Lowery's right to a fair trial, where the trial judge referred to a photo of Lowery, which had been ruled to be inadmissible in the guilt phase of Lowery's trial, as a mug shot and 5. Whether Lowery was denied fundamental due process, where the trial court permitted the selection of alternate jurors by lot at the close of the evidence in the guilt phase.

thereby suggested that Lowery had a criminal history.

6. Whether the trial court committed fundamental error, where the trial court failed to instruct the jury on all of the essential elements of attempted murder.

7. Whether the trial court denied Lowery fundamental due process of law, where the court entered judgment of conviction on the jury's findings of guilt of attempted murder "as charged," and where the charging information in the case did not properly allege attempted murder.

8. Whether Lowery's trial court entered a sentence in violation of Indiana law, where the sentencing judge failed to state the aggravating circumstances justifying a sentence above the presumptive term of imprisonment.

9. Whether the trial court denied Lowery's right to fundamental due process and his right to counsel, where the trial court refused to transport Lowery to the local jail until one week before his trial began.

10. Whether Lowery was denied his right to effective assistance of counsel, where trial counsel failed to challenge the admissibility of identification evidence, to impeach the State's crucial eyewitness, and to object to misconduct and errors occurring before and during Lowery's trial.

11. Whether Lowery was denied fundamental due process of law and a reliable sentencing determination, where the jury was repeatedly told that their decision regarding the death penalty was only advisory.

12. Whether the subsection (b)(1) aggravator of Indiana's death penalty statute is unconstitutional as applied in Lowery's case, where the felony-aggravator was not subject to the requirements of proof in the guilt phase of his trial.

13. Whether Lowery was denied fundamental due process and a reliable sentencing hearing, where the trial court did not instruct the jury regarding the nature and function of mitigating circumstances.

14. Whether Lowery was denied fundamental due process, where this Court has failed to adopt a procedural mechanism to review sentences of death as to proportionality, and where the appellate rules for review of sentences are insufficient to provide the statutory and constitutionally required review.

15. Whether the post-conviction court denied Lowery a fair post-conviction hearing, where the post-conviction court denied Lowery's claim that Indiana's electric chair is in such disrepair that it violates state and federal constitutional proscriptions against cruel and unusual punishment.

16. Whether the trial court denied Lowery fundamental due process, where the trial court found an aggravating circumstance that by law the jury could not have considered in making its sentencing decision.

17. Whether Lowery was denied his sixth and fourteenth amendment right to effective assistance of counsel in the penalty phase of his trial by the acts and omissions of counsel.

18. Whether Lowery's right to effective assistance of counsel on his direct appeal was denied, where appellate counsel failed to request the transcript of jury selection and failed to present fundamental errors to this Court.


On post-conviction relief, the petitioner must justify raising a ground for relief from conviction or sentence outside the normal trial and appeal processes. The post-conviction relief process is not a substitute for a direct appeal, but is a process for raising issues not known at the time of the original trial or for some reason not available to the defendant for direct appeal. Wallace v. State (1990), Ind., 553 N.E.2d 456. Post-conviction actions are special, quasi-civil remedies whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal. Berry v. State (1985), Ind., 483 N.E.2d 1369. Uncorrected errors of law that were available to the defendant at the time of Also, in his petition for post-conviction relief, Lowery raises some issues that he had not addressed in his direct appeal, but appear to have been available and unasserted during the appellate process. The State has chosen to address these issues on the merits, rather than asserting procedural default. Because the State argues the merits of these issues, and because the post-conviction court reviewed these issues on the merits, we will decide the issues on the merits as well. See Wallace, 553 N.E.2d 456. Again, we will address those arguments individually.

                direct appeal, but are first raised in a petition for post-conviction relief, are not available in the post-conviction action.  Weatherford v. State (1987), Ind., 512 N.E.2d 862.   Also, this Court has held that issues already adjudicated in the appellate process are unavailable to a petitioner for post-conviction relief.  Smith v. State (1993), Ind., 613 N.E.2d 412;  Adams v. State (1982), Ind., 430 N.E.2d 771.   An issue that is raised on direct appeal and is determined adverse to appellant's position is res judicata in post-conviction proceedings.  Grey v. State (1990), Ind., 553 N.E.2d 1196;  cf. Kiger v. State (1989), Ind., 537 N.E.2d 501 (defendant could not relitigate issue of sufficiency of evidence that had already been decided on direct appeal through post-conviction procedures, under principles of res judicata ).  When reviewing the denial of a petition for post-conviction relief, our standard "does not allow us to weigh the evidence or judge the credibility of the witnesses.  It requires

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