Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Lowery

Court of Criminal Appeals of Tennessee, Knoxville

July 19, 2017

STATE OF TENNESSEE
v.
JOHN LOWERY

          Assigned on Briefs December 20, 2016

         Appeal from the Criminal Court for Knox County No. 98047 Bobby R. McGee, Judge

         Petitioner, 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, John Lowery.

          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.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr. and John Everett Williams, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Procedural history

         In 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.

         On 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.

         Following a hearing on October 2, 2014, the trial court denied the petition by an order dated February 23, 2016.

         The 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 car.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.