07/19/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 20, 2016

STATE OF TENNESSEE v. JOHN LOWERY

Appeal from the Criminal Court for Knox County

No. 98047 Bobby R. McGee, Judge

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No. E2016-00587-CCA-R3-CD

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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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.

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.
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OPINION

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. 
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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 the 

appellant as the man who shot Boatwright and Hartsell. 

The next day, Hartsell, who was sixteen (16) years of age, died as a 

result of a gunshot wound to the neck. 

Investigating officers recovered a .45 caliber bullet behind the counter in 

the store as well as a .45 caliber shell casing in front of the store counter. 

The police also discovered a bullet hole in the counter. Another .45 

caliber bullet casing was found in the car where Hartsell was shot, and 

officers found an “eight ball” of crack cocaine by the right passenger 

door. Don Carman, a TBI forensic firearms examiner, examined the 

bullet casings and determined that the casing found in the store and the 

casing found in the car were fired from the same weapon. 

James Bowman, a friend of appellant’s family, gave a statement to police 

officers shortly after the incident. In his statement, Bowman told 

officers that, just prior to the shooting, he brought his stepdaughter to 

Kirk’s Market so that she could purchase a drink before school. While 

his stepdaughter was inside the market, the appellant got into Bowman’s 

car and began telling Bowman that he had been robbed earlier that 

morning. Suddenly, a car pulled beside them, and the appellant told 

Bowman that the men who robbed him were in the car. The appellant 

then got out of the car and told his brother, Fred Lowery, and his cousin, 

Jay Harris, “[t]hat’s it, boys, right here.” When the appellant, Fred 

Lowery and Harris surrounded the building, Bowman left with his 

stepdaughter. Bowman dropped his stepdaughter off at school, and 

when he drove past Kirk’s Market on his way home, Boatwright and 

Hartsell had been shot. 

The state also presented the testimony of Mary Santos, who had 

previously been romantically involved with the appellant’s uncle, Walter 
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Lowery. Santos testified that Walter hired the appellant and the victim, 

Vincent Hartsell, to sell drugs for him. She stated that in late Spring or 

early Summer 1996, the appellant and Walter were angry with Hartsell 

over a botched drug sale. Santos testified that, on several occasions, the 

appellant stated that he would kill Hartsell in retaliation. 

The appellant presented an alibi defense at trial. Fred Lowery, Jay Harris 

and Greg Moore testified that they were at Kirk's Market during the 

shooting on October 8. None of these witnesses saw the person who 

shot Boatwright and Hartsell, but all testified that the appellant was not 

present during the shooting. In addition, Tamera McMillan, the 

appellant’s neighbor, testified that the appellant was at her home during 

the time of the shooting. 

Lowery, 2000 WL 748103, at *1-2. 

Coram nobis hearing

At the hearing on October 2, 2014, William Boatwright, the surviving victim of 

the shooting, testified that he went to Kirk’s Market with Vincent Hartsell on October 8, 

1996. He testified that he “was shot coming out the store from purchasing some candy 

and other juice and stuff like that.” Boatwright testified that he arrived at the store 

“[a]round about 5:30, 6:00.” When he walked out of the store, he saw that Hartsell had 

been shot. Boatwright was then shot. He ran back inside the store, and the cashier was 

screaming. He ran outside again, and he saw Malik Hardin. Boatwright checked on 

Hartsell and saw that he had been shot in the neck. Boatwright drove to Austin Homes 

and “fell out [and] woke up in the hospital.” 

While he was in the hospital, police showed Boatwright a photo lineup. 

Boatwright testified that he identified Petitioner as the shooter because the police told 

him that they knew he had committed aggravated robbery and murder. He testified, “[s]o 

they like, well is this the person that did it? So I – yeah, he the one did it. Just to keep

them, you know what I’m saying, from, I guess, charging me for the murder charge.” 

Boatwright testified that police “just kept pointing at [Petitioner’s] picture” in the lineup. 

Boatwright testified that he did not know who shot him. He testified that he 

identified Petitioner in the photo lineup because he “was more afraid that they was going 

to charge [him] with the murder, so, therefore, you know – the way they came to me was 

like, either he get charged or you get charged.” Boatwright testified, “I’m not fixing to 

get charged for something I didn’t do, so why not say he did it?” 
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On cross-examination, Boatwright acknowledged that he was serving a 49-year 

sentence for especially aggravated robbery, aggravated robbery, and burglary. He denied 

that he had any concerns about being known as a “snitch” in prison. He acknowledged 

that he and Petitioner were both incarcerated in Morgan County. He testified, “I mind 

my own business. I don’t speak to him. I don’t know him. So I just mind my own 

business.” Boatwright acknowledged that his memory had faded since the incident, but 

he testified, “[b]ut everything that I said was made up just to keep them from charging 

me with this murder charge.” 

Boatwright contested a police report that indicated that a detective spoke with him 

in the hospital approximately 30 minutes after the shooting. He testified that he did not 

remember telling the investigator that a man he knew as “J.B.” did the shooting. On 

redirect, Boatwright testified that the robbery that the police were trying to “pin” on him 

was a robbery of Petitioner on the night before the shooting. 

Malik Hardin testified that he was at Kirk’s Market “early in the morning” on 

October 6, 1996. He saw Hartsell and Boatwright “arguing with a couple other guys in 

the store.” While he was at the counter making a purchase, he “asked them was 

everything okay. They, like, yeah, everything cool.” Hardin then walked out of the 

store. Hardin testified that he got in his car and turned up the music, and he saw “a guy 

in motion, like with his back towards me.” The man turned around, and Hardin saw a 

gun in his hand. Hardin testified that the man opened the door to the store, reached 

inside, and then ran toward Prince Hall apartments. Hardin testified that he saw another 

man carrying a gun exit the store and run in the same direction. Another man drove 

away in “a little blue car” parked in front of the store. 

Hardin walked around the building and saw Hartsell “hanging out of the car, like 

bleeding out his neck.” Hardin testified that the Boatwright was inside the store, “in a 

tirade going off, like, ‘man, that dude shot me, he shot me.’” Boatwright came out of the 

store, took the keys to Hardin’s car, and drove away. Hardin stayed with Hartsell until an 

ambulance arrived. When the police arrived, they handcuffed Hardin. He testified that 

he “was out on bond for something[,]” and he was nervous that he would be charged for 

the shooting. At the police station, Hardin was shown a photo lineup. He testified that 

the officer pointed at one of the photos and asked him if that was the shooter. Hardin 

testified that the man in the photo “kind of resembled the guy who [he] had seen running 

from the car with the gun.” Hardin acknowledged that he identified Petitioner as the 

shooter. He testified, “[n]ow that I’ve seen [Petitioner], like, close up, I know 100 

percent certain that it wasn’t [Petitioner].” He testified that the shooter resembled 

Petitioner, but the shooter was shorter than Petitioner. 
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On cross-examination, Hardin acknowledged that another inmate had prepared an 

affidavit “on behalf of” Petitioner and brought it to him to sign. He testified that he was 

serving a 15-year sentence. He acknowledged that he identified Petitioner at trial as the 

shooter even though he was no longer afraid that the police might charge him with the 

shooting. He testified that he identified Petitioner “[b]ecause he resembled the guy who 

had done it.” 

Loretta Turner was working as a cashier at Kirk’s Market at the time of the 

shooting. She testified that at approximately 5:45 a.m., seven or eight people entered the 

store, and she “got a little nervous because [she] thought probably they was there to rob 

[her].” She testified that when they approached the counter to pay, “they started fussing 

among themselves.” She asked them to stop, and “one guy, he kind of chewed [her] out.” 

When the men left the store, Turner heard gunshots. She testified that she did not see the 

shooting. She also testified that it was dark outside at the time of the shooting. Turner 

testified that she had met Petitioner once prior to the shooting, and she did not see him in 

the store on the day of the shooting. 

In its order denying the petition, the court stated that it “listened to the witnesses’ 

testimony and observed their demeanor on the stand.” The court found that neither 

Boatwright nor Hardin were credible witnesses and that they were “vague and 

inconsistent in their testimony.” The court found both witnesses’ testimony to be 

untruthful. The court found that Ms. Turner “appeared to be telling the truth as best she 

could” but noted that “she was ducking and hiding when the shooting began.” 

Analysis

Petitioner contends that the trial court abused its discretion by denying his petition 

for writ of error coram nobis. The State responds that the trial court acted within its 

discretion. Additionally, the State asserts that the trial court erred by not dismissing the 

petition as time-barred. 

A proceeding in the nature of a writ of error coram nobis is available to convicted 

defendants in criminal cases. T.C.A. § 40-26-105(a). Whether to grant or deny a petition 

for writ of error coram nobis on its merits rests within the sound discretion of the trial 

court. State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007). Coram nobis claims may 

be based on newly discovered evidence:

Upon a showing by the defendant that the defendant was without fault in 

failing to present certain evidence at the proper time, a writ of error 

coram nobis will lie for subsequently or newly discovered evidence 

relating to matters which were litigated at the trial if the judge 
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determines that such evidence may have resulted in a different judgment, 

had it been presented at the trial.

T.C.A. § 40-26-105(b). 

Coram nobis claims are subject to a one-year statute of limitations. T.C.A. § 27-7-

103 (“The writ of error coram nobis may be had within one (1) year after the judgment 

becomes final. . . .”). The statute of limitations is computed from the date the judgment 

of the trial court becomes final, either thirty days after its entry in the trial court if no 

post-trial motions are filed or upon entry of an order disposing of a timely filed, post-trial 

motion. State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999). Whether a claim is barred 

by an applicable statute of limitations is a question of law, which we review de novo. 

Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007). We construe the 

coram nobis statute of limitations consistently with the longstanding rule that persons 

seeking relief under the writ must exercise due diligence in presenting the claim. Mixon, 

983 S.W.2d at 670. The State bears the burden of raising the bar of the statute of 

limitations as an affirmative defense. Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003). 

In the appeal from the trial court’s summary dismissal of the petition, a panel of 

this court addressed the statute of limitations issue. The panel found that the State did not 

raise the untimeliness of the petition as an affirmative defense in the lower court. 

Lowery, 2013 WL 4767188, at *4. Additionally, the panel noted that the trial court did 

not deny the petition on that basis. Id. On remand, however, the State filed a response to 

Petitioner’s amended petition, and the State now asserts that the trial court should have 

dismissed the petition as time-barred because Petitioner failed to argue that due process 

required the tolling of the statute of limitations. 

When a petitioner seeks a writ of error coram nobis based on newly discovered 

evidence of actual innocence, due process considerations may require tolling of the 

statute of limitations. Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). These due 

process considerations refer to the principle that “before a state may terminate a claim for 

failure to comply with procedural requirements such as statutes of limitations, due 

process requires that potential litigants be provided an opportunity for the presentation of 

claims at a meaningful time and in a meaningful manner.” Burford v. State, 845 S.W.2d 

204, 208 (Tenn. 1992). 

To determine whether due process requires tolling, a court must weigh the 

petitioner’s interest in obtaining a hearing to present a later-arising ground for relief 

against the State’s interest in preventing stale and groundless claims. Workman, 41 

S.W.3d at 103. In balancing these interests, a court should utilize a three-step analysis:
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(1) determine when the limitations period would normally have begun to 

run;

(2) determine whether the grounds for relief actually arose after the 

limitations period would normally have commenced; and

(3) if the grounds are “later-arising,” determine if, under the facts of the 

case, a strict application of the limitations period would effectively deny 

the petitioner a reasonable opportunity to present the claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). 

In this case, Petitioner filed his petition for writ of error coram nobis more than ten 

years after his judgment became final in 1998. The second step in the analysis requires a 

determination of whether Petitioner’s grounds for relief – the recantation of witness 

testimony – actually arose after the limitations period normally would have commenced. 

Petitioner has not specified when he became aware of this new evidence. His petition 

stated that he made contact with the three witnesses “[s]ince the judgment was affirmed 

on direct appeal[.]” The opinion on direct appeal was filed on June 12, 2000, and 

Petitioner filed his petition for writ of error coram nobis on September 14, 2011, more 

than 11 years later. The third step in the analysis requires a determination of whether 

Petitioner was given a reasonable opportunity to present his claims. Because Petitioner 

has failed to establish when he became aware of the new evidence, and with an 11-year 

gap between the judgment becoming final and the filing of his petition, it is difficult to 

determine the reasonableness of the delay in presenting his claims. 

However, this court’s decision in the first appeal is the law of the case. The 

doctrine of the law of the case permits the foreclosing of argument on an issue that was 

previously decided in an appeal of the same case. Our supreme court explained in detail 

its interpretation of this doctrine in Memphis Publ’g. Co. v. Tennessee Petroleum 

Underground Storage Tank Bd., 975 S.W.2d 303 (Tenn.1998): 

The phrase “law of the case” refers to a legal doctrine which generally 

prohibits reconsideration of issues that have already been decided in a 

prior appeal of the same case . . . . [W]hen an initial appeal results in a 

remand to the trial court, the decision of the appellate court establishes 

the law of the case which generally must be followed upon remand by 

the trial court, and by an appellate court if a second appeal is taken from 

the judgment of the trial court entered after remand. 

Id. at 306 (citations omitted). 
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The State did not file a Petition to Rehear in the first appeal concerning this 

court’s determination that the statute of limitations issue could not be considered, nor did 

the State seek review by the Tennessee Supreme Court. A panel of this court ordered an 

evidentiary hearing that should have been held at the time the case was initially filed. 

The State’s current argument concerning the statute of limitations is without merit. 

In this case, the trial court found the testimony of Boatwright and Hardin was not 

truthful. The court stated that it “listened to the witnesses’ testimony and observed their 

demeanor on the stand.” It determined that their testimony at the coram nobis hearing 

was not credible. Inherent in the determination of whether a petitioner is entitled to relief 

based upon recanted testimony is the trial court’s determination of whether the witness 

recanting his or her testimony is credible. A petitioner is not entitled to coram nobis 

relief based on recanted testimony unless the coram nobis court is reasonably satisfied 

that the prior testimony was false and the present testimony is true. State v. Ratliff, 71 

S.W.3d 291, 298 (Tenn. Crim. App. 2001). 

Petitioner asserts that the court’s “credibility determination is premised on the idea 

that [Boatwright] started discussing the threats of the murder charge and only 

remembered the aggravated robbery on redirect.” In its order denying relief, the trial 

court found:

Boat[w]right stated that he testified falsely at trial because the 

police instructed him to and threatened to prosecute him for shooting 

Hartsell (Vincent Hartsell was also shot during the attack. He died of his 

injuries the next day.) On redirect Boat[w]right remembered that it was 

the armed robbery of the petitioner that the police were threatening to 

charge him with unless he named petitioner as the person who shot 

Boat[w]right and that was why he testified as he did at trial. 

Hardin testified that he was holding Hartsell’s bleeding body when 

the police arrived and accused him of shooting Hartsell, put him in cuffs, 

and were driving him to the police station when they showed him a 

photo line-up and pointed to the picture of an individual who did bear 

some resemblance to an individual he had seen running away from the 

scene right after the shootings. He testified further that he is now 100% 

sure that the individual he saw running away from the scene was not 

petitioner. 

The court listened to the witnesses’ testimony and observed their 

demeanor on the stand. Loretta Turner appeared to be telling the truth as 

best she could but did admit to being nervous that morning because 
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seven or eight people came in the store all at once and she thought they 

were going to rob her. Also she was ducking and hiding when the 

shooting began. 

The trial court concluded that although Ms. Turner’s testimony was credible, her 

testimony was cumulative of other witnesses who testified at trial that Petitioner was not 

present at Kirk’s Market on the day of the shooting. The court concluded that in light of 

the evidence presented at trial, “this court does not find that the cumulative evidence of 

Loretta Turner may have caused the jury to reach a different result.” 

The coram nobis court was able to see and hear the witnesses’ testimony at the 

evidentiary hearing and was in the best position to evaluate their credibility. “[A]ppellate 

courts do not reassess credibility determinations.” Dellinger v. State, 279 S.W.3d 282, 

292 (Tenn. 2009). Petitioner is not entitled to relief. 

CONCLUSION

In accordance with the foregoing reasoning and authorities, we conclude that the 

coram nobis court did not err when it dismissed Petitioner’s petition for writ of error 

coram nobis. 

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THOMAS T. WOODALL, PRESIDING JUDGE