                                                                                         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
                     ___________________________________

                           No. E2016-00587-CCA-R3-CD
                       ___________________________________


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.
                                       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.
                                          -2-
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
                                    -3-
        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?”

                                            -4-
       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.



                                           -5-
       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
                                            -6-
        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:

                                            -7-
        (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).



                                            -8-
       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
                                            -9-
        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.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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