Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 20, 2016
from the Criminal Court for Knox County No. 98047 Bobby R.
John Lowery, appeals from the trial court's denial of his
petition for writ of error coram nobis. Eleven years after
Petitioner's convictions and sentences were affirmed on
direct appeal, Petitioner filed a petition for writ of error
coram nobis, which was summarily dismissed by the trial
court. In his petition, Petitioner asserted that two
witnesses recanted their identification of Petitioner as the
shooter, and a previously unknown witness said that
Petitioner was not at the scene of the crime. On appeal, this
court reversed the court's summary dismissal of the
petition and remanded for an evidentiary hearing. On remand,
the State filed a response, asserting that the statute of
limitations had run. Following an evidentiary hearing, the
trial court denied relief, finding the two witnesses who
recanted not credible and that the testimony of the newly
discovered witness did not meet the test that it "might
have" changed the outcome of the trial. Having reviewed
the entire record and the briefs of the parties, we affirm
the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
A. Fanduzz, Knoxville, Tennessee, for the appellant, John
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Senior Counsel; Charme P. Allen, District
Attorney General; and Leland Price, Assistant District
Attorney General, for the appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which James Curwood Witt, Jr. and John Everett Williams, JJ.,
T. WOODALL, PRESIDING JUDGE
1998, Petitioner was convicted by a jury of first degree
premeditated murder and attempted first degree murder and
received consecutive sentences of life and 25 years,
respectively. See State v. John Bradley Lowery, No.
E1998-00034-CCA-R3-CD, 2000 WL 748103, at *1 (Tenn. Crim.
App., June 12, 2000), perm. app. denied (Tenn., Feb.
20, 2001). A panel of this court affirmed Petitioner's
convictions and sentences on direct appeal. Id.
September 4, 2011, Petitioner filed a petition for writ of
error coram nobis. He filed an amended petition on May 22,
2012. On June 27, 2012, the trial court dismissed the
petition, finding that the evidence alleged by Petitioner was
not newly discovered evidence. See John Lowery v.
State, No. E2012-01613-CCA-R3-PC, 2013 WL 4767188, at *3
(Tenn. Crim. App., Sept. 4, 2013), no perm. app.
filed. On appeal, a panel of this court remanded for a
hearing after concluding that the trial court applied the
wrong standard in dismissing the petition and that Petitioner
had made a sufficient threshold to warrant a hearing.
Id. at *5.
a hearing on October 2, 2014, the trial court denied the
petition by an order dated February 23, 2016.
facts of Petitioner's underlying convictions, as
summarized by a panel of this court on direct appeal, are:
At approximately 6:40 a.m. on October 8, 1996, William
Boatwright and his cousin, Vincent Hartsell, went to
Kirk's Market in Knoxville to purchase food items.
Boatwright went inside the market, while Hartsell remained in
the car. After Boatwright made his purchase, he walked
outside, and Jay Harris, who was standing outside, called him
to the side of the building so that they could converse.
After Boatwright spoke with Harris for a few seconds, he
heard a gunshot. When he turned around, he saw the appellant
running towards him carrying a handgun. As Boatwright
attempted to reenter the store, the appellant shot him in the
chest. Boatwright went inside the store and crawled behind
the counter, and the appellant went inside after him, firing
his gun. However, because the store employee began screaming,
the appellant fled the scene. Boatwright remained in the
store for several minutes and then went outside to check on
Hartsell, who had been shot in the neck while waiting in the
Malik Hardin, a friend of Boatwright and Hartsell, witnessed
the shooting while sitting in his car in the Kirk's
Market parking lot. Boatwright got into Hardin's car and
drove to a relative's home, while Hardin stayed with
Hartsell until the police arrived.
Boatwright was subsequently transported to the hospital,
where he told the police that "J.B." shot Hartsell
and him. The police compiled a photographic lineup, and
Boatwright identified the appellant as the shooter. Hardin
also viewed the photographic lineup and identified ...