In the
Indiana Supreme Court
LAMBERT, Michael Allen, ) Supreme Court case no.
petitioner, ) 18S00-0412-SD-503
)
v. ) Delaware Superior Court case
no.
) 18D01-9101-CF-02
STATE OF INDIANA, )
PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION
FOR POST-CONVICTION RELIEF IN CAPITAL CASE
Introduction
Petitioner Michael Allen Lambert was convicted of murder and
sentenced to death for killing a law enforcement officer acting in the
course of duty. Lambert now asks leave to litigate in state court another
collateral claim relating to the death sentence. Because we conclude that
Lambert has not shown a reasonable possibility that he is entitled to
relief, we deny his request.
Procedural Background
Having been arrested for public intoxication on December 28, 1990,
Lambert was handcuffed and placed in the back seat of a squad car driven by
Muncie Police Officer Gregg Winters. With a gun stolen from his employer,
Lambert shot Officer Winters five times. Officer Winters died several days
later. A jury found Lambert guilty of intentional murder. See Ind. Code §
35-42-1-1.
The State sought the death penalty, alleging one aggravating
circumstance that would render Lambert eligible for the sentence: Officer
Winters had been acting in the course of duty when Lambert shot him. See
I.C. § 35-50-2-9(b)(6). The jury unanimously recommended the death
penalty. The trial court followed the jury’s recommendation and sentenced
Lambert to death.
Lambert’s conviction was affirmed on direct appeal in Lambert v.
State, 643 N.E.2d 349 (Ind. 1994). On rehearing, we agreed with Lambert
that the jury should not have heard certain evidence about the impact
Officer Winters’s death had had on his family and co-workers, but we
exercised our authority to review and revise sentences and affirmed the
death sentence for Lambert. Lambert v. State, 675 N.E.2d 1060, 1066 (Ind.
1996), cert. denied, 520 U.S. 1255 (1997). The trial court’s judgment
denying collateral relief was affirmed on appeal in Lambert v. State, 743
N.E.2d 719 Ind. 2001), reh’g denied (2001), cert. denied, 534 U.S. 1136
(2002). Lambert then sought relief in the federal courts. The district
court denied his petition for writ of habeas corpus in Lambert v. Davis,
No. IP 01-864-C-M/S, unpublished order (S.D. Ind. Dec. 4, 2002). The
Seventh Circuit Court of Appeals affirmed in Lambert v. McBride, 365 F.3d
557 (7th Cir. 2004), reh’g and reh’g en banc denied, cert. denied, 543 U.S.
___, 125 S.Ct. 669 (2004).
Lambert has thus completed the review of the conviction and sentence
to which he is entitled as a matter of right.
By counsel, Lambert has now filed a “Tender of Successive Petition
For Post-Conviction Relief (Capital Case)” and has submitted a proposed
“Petition For Post-Conviction Relief.” The State filed its “Verified
Response in Opposition to Tender of Successive Petition for Post-Conviction
Relief” and Lambert was allowed to file “Petitioner’s Reply to the State’s
Verified Response in Opposition to Tender of Successive Petition For Post-
Conviction Relief.” In these papers, Lambert requests permission to
litigate the question whether his death sentence should be vacated.
We have jurisdiction because Lambert is sentenced to death. See Ind.
Appellate Rule 4(A)(1)(a).
Our Post-Conviction Rules
Lambert has already availed himself of our rule that permits a person
convicted of a crime in an Indiana state court one collateral review of the
conviction and sentence in a post-conviction proceeding. See Ind. Post-
Conviction Rule 1. As indicated above, Lambert did not prevail on his
collateral claims; the trial court entered judgment against him and we
affirmed that judgment on appeal.
To litigate another or “successive” post-conviction claim, Lambert
needs our authorization. We will authorize the proceeding to go forward
“if the petitioner establishes a reasonable possibility that the petitioner
is entitled to post-conviction relief.” P-C.R. 1 § 12(b). In deciding
whether a petitioner has made the required showing, we consider the
applicable law, the petition and materials from the petitioner’s prior
appeals and post-conviction proceedings including the record, briefs and
court decisions, and any other material we deem relevant. Id.
Lambert’s Claim
Lambert’s sole claim relates to the appropriate remedy when evidence
is erroneously admitted in the penalty phase of a capital trial. This is
an issue he has raised in one form or another, and lost, in each of his
prior proceedings.
On rehearing in the direct appeal, we agreed with Lambert that the
jury should not have heard the victim impact evidence during the penalty
phase of the trial, and we agreed with him that the error was not harmless.
See Lambert v. State, 675 N.E.2d at 1064-65 (“Because the majority of the
victim impact testimony given was irrelevant to the charged aggravator, it
was improper and should not have been admitted.”). We reached a conclusion
different than Lambert advocated, however, on the proper remedy for the
error.
As we explained, where we find an irregularity in a death sentence,
we may (1) remand to the trial court for a new sentencing determination,
(2) affirm the death sentence if the error is harmless beyond a reasonable
doubt, or (3) use our appellate authority to independently reweigh the
proper aggravating and mitigating circumstances. Id. at 1065 (citing Bivins
v. State, 642 N.E.2d 928, 957 (Ind. 1994), cert. denied, 516 U.S. 1077
(1996).
In Lambert’s case, we selected the third option. We reviewed the
properly admitted evidence concerning the aggravating and mitigating
circumstances, concluded the aggravating circumstance outweighed the
mitigating ones, and affirmed the trial court’s death sentence. See
Lambert, 675 N.E.2d at 1065-66.
Lambert claims that our appellate reweighing either did not cure the
error or is not a valid remedy, see Tender at ¶5, but he cites no authority
for either proposition and his claim has been rejected throughout the
review process. In the post-conviction appeal, we specifically addressed
and rejected Lambert’s arguments with respect to our state’s constitution,
and noted the procedure had been employed in other capital cases. Lambert
v. State, 675 N.E.2d at 727 (citing Matheney v. State, 688 N.E.2d 883,
909-10 (Ind. 1997), cert. denied, 525 U.S. 1148 (1999); Bivins, 642 N.E.2d
at 957)). We also considered and rejected Lambert’s arguments with respect
to the federal Constitution. Lambert, 675 N.E.2d at 727. Similarly, the
federal courts found no error under the U.S. Constitution. See, e.g,
Lambert v. McBride, 365 F.3d at 561-63.
Lambert now argues that our resentencing conflicts with Saylor v.
State, 808 N.E.2d 646 (Ind. 2004), a case we decided after his. The
circumstances in the two cases are different, however, and we are not
persuaded Saylor establishes any reasonable possibility that Lambert is
entitled to relief. Saylor had been sentenced to death for a 1992 murder
despite his jury’s unanimous recommendation against a death sentence. Then
in 2002, Indiana’s death penalty statute was amended and no longer allows a
person to be sentenced to death if the jury unanimously recommended against
it. See I.C. § 35-50-2-9(e) (2004). We revised Saylor’s death sentence to
a term of years after concluding it was “not appropriate to execute a
person who was convicted and sentenced through a procedure that has now
been substantially revised so the same trial today would no longer render
the defendant eligible for the death penalty.” 808 N.E.2d at 647.
The circumstances for Lambert are different. His is not a situation
where the jury unanimously recommended against the death sentence. There
is no suggestion the aggravating circumstance—Officer Winters was acting in
the course of duty when Lambert shot him—was not proved beyond a reasonable
doubt, which, in any event, we infer from the jury’s unanimous
recommendation. Barker v. State, 809 N.E.2d 312, 316 n.2 (Ind. 2004)
(citing Saylor v. State, 765 N.E.2d 535, 574 (Ind. 2002) (Sullivan, J.,
concurring and dissenting) (“[W]hen a jury recommends a sentence of death
or life without parole, it has by definition made the predicate
determination of death eligibility required by Apprendi.”)). As such,
Lambert would be eligible for the death penalty today. Id. Finally,
neither Saylor nor the 2002 amendments to the death penalty statute affect,
in any way relevant to Lambert’s case, our constitutional authority to
review or revise sentences or the appropriate remedies for erroneous
admission of evidence.
Conclusion
Lambert has not met his burden of establishing a reasonable
possibility that he is entitled to post-conviction relief. Accordingly, we
decline to authorize the filing of a successive petition for post-
conviction relief. The Clerk is directed to send a copy of this order to
counsel of record and to West Publishing for publication in the bound
volumes of this Court’s decisions.
DONE AT INDIANAPOLIS INDIANA, this 28th day of April, 2005.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion.
Rucker, J., dissents with opinion.
Boehm, J., dissenting.
I agree with Justice Rucker that we should allow Lambert to present
his petition for post-conviction relief, but I reach that conclusion for
somewhat different reasons. As I see it this case does not turn on federal
constitutional developments, notably the requirement first announced in
Apprendi v. New Jersey that a jury find all facts necessary to the
judgment. Rather, it presents a variation on the theme first addressed in
Saylor v. State, 808 N.E.2d 646 (Ind. 2004). In Saylor we held that a
death penalty imposed under the prior version of the Indiana death penalty
statute should be revisited if it was imposed as a result of a procedure
that could not lead to a death sentence under current law. Specifically,
the jury in Saylor’s case recommended against death, but the trial judge,
as was permitted at the time but is not permitted under current law,
nevertheless imposed a death sentence. We held, as a matter of state law,
under those circumstances we should exercise our power under Article VII of
the Indiana Constitution to “review and revise” that sentence. Here we do
not have a jury recommendation against death. Rather we have a jury
recommendation that was held to be the product of inadmissible and
potentially prejudicial evidence. Lambert v. State, 675 N.E.2d 1060, 1064
(Ind. 1996). As Justice Rucker points out, that is the functional
equivalent of no jury recommendation. The issue, then, is what the
consequence of a lack of a jury recommendation should be. I believe that
is an issue resolvable under Indiana law without regard to Apprendi and its
progeny.
In 1996 we unanimously held that the penalty phase of Lambert’s trial
was flawed and the error was not harmless because it may have contributed
to the jury’s recommendation in favor of the death penalty. A majority of
this Court concluded that as a result of this error, this Court should
review and revise Lambert’s sentence. In 1996, Indiana’s death penalty
statute allowed the court to assess the death penalty, even if the jury
recommended against death. I dissented at that time, contending that this
Court should not independently assess the death penalty when we could not
know what the jury would have recommended if the penalty phase were not
tainted, and we could not know what the trial judge would have done if the
jury had not recommended death. Accordingly, I concluded that a remand for
a new sentencing hearing was required. The same reasoning applies today.
We have a flawed jury recommendation, and therefore do not know whether,
without the erroneously introduced evidence, the jury would have
recommended death, as it did in Lambert’s case, or recommended against
death, as it did in Saylor’s.
I do not agree with the majority’s claim that Lambert would be
eligible for the death penalty today. In 2002, the General Assembly
amended Indiana’s death penalty statute. The current death penalty statute
provides that a trial judge may impose the death penalty only if the jury
has recommended that sentence or if the jury is unable to recommend a
sentence. Ind. Code § 35-50-2-9 (2004). A trial court is no longer
permitted to impose the death penalty when the jury recommends against it.
In view of the jury verdict convicting Lambert of killing a law enforcement
officer, the majority is presumably correct that there is no Apprendi/Ring
bar to the death penalty. But I believe the death sentence in this case
would be defective as a matter of Indiana state law if Lambert’s trial had
been conducted under the current Indiana statute. The trial court is
precluded from imposing death without a proper jury recommendation in favor
of the death penalty or the jury’s inability to agree. I.C. § 35-50-2-9.
Because of the acknowledged material error in the sentencing phase, we
cannot know whether either of those conditions is met. This Court has the
authority to review and revise sentences, but only within the parameters of
the sentencing statutes. If this were a direct appeal from a trial
conducted under the 2002 law, we therefore could not revise the sentence to
impose death. We thus are faced with a situation very similar to that in
Saylor. We have a defendant sentenced to death through a procedure that
that would be improper today. Accordingly, Lambert’s case, like Saylor’s,
is not appropriate for death under the current death penalty statute. I
would let Lambert proceed to test his claim that a proper penalty phase
would provide a recommendation against death.
As the Seventh Circuit observed in affirming the denial of Lambert’s
habeas corpus petition, Lambert v. McBride, 365 F.3d 557, 563 (7th Cir
2004), I concurred in this Court’s subsequent affirmance of the denial of
post-conviction relief. Lambert v. State, 743 N.E.2d 719 (Ind. 2001). I
did so not because I had reached a different conclusion as to whether this
Court’s 1996 revision of Lambert’s sentence was the correct result.
Rather, I merely deferred to the stare decisis effect of the majority’s
view that appellate reweighing could properly result in a death sentence.
Now, however, in light of the 2002 amendments to Indiana’s death penalty
statute, we have a development that in my view puts the appropriateness of
that action in question.
Rucker, J., dissenting.
Michael Allen Lambert seeks authorization to file a successive
petition for post-conviction relief in order to litigate his claim that
this Court’s opinion in Saylor v. State, 808 N.E.2d 646 (Ind. 2004),
entitles him to relief. I would grant the petition. Therefore I dissent.
Facts and Procedural History
The factual background surrounding Lambert’s conviction is set forth
in other opinions of this Court. See Lambert v. State, 643 N.E.2d 349
(Ind. 1994); Lambert v. State, 675 N.E.2d 1060 (Ind. 1996); Lambert v.
State, 743 N.E.2d 719 (Ind. 2001). In brief, on December 28, 1990,
officers of the Muncie Police Department arrested then twenty-year-old
Michael Lambert for public intoxication. Although it was snowing and the
temperature was in the teens, Lambert was lightly dressed and had been
observed trying to crawl under a car in order to sleep. It was later
determined that his blood alcohol level was .18. While handcuffed and
sitting in the back seat of Officer Gregg Winters’ patrol car, Lambert
produced a handgun and fired several shots. Officer Winters died eleven
days later from wounds to the back of the head and neck.
A jury convicted Lambert of murder and the trial court sentenced him
to death. This court affirmed Lambert’s conviction and sentence on direct
appeal. See Lambert, 643 N.E.2d 349 (Ind. 1994). A second opinion, issued
on rehearing, recognized that the trial court had improperly admitted
victim impact evidence during the sentencing phase of trial, but this court
upheld Lambert’s death sentence after independently reweighing the
aggravating and mitigating circumstances. See Lambert, 675 N.E.2d 1060
(Ind. 1996), cert. denied, 520 U.S. 1255 (1997). Lambert later petitioned
for post-conviction relief, which the post-conviction court denied. We
affirmed the denial. See Lambert, 743 N.E.2d 719 (Ind. 2001), cert.
denied, 534 U.S. 1136 (2002). Lambert now seeks permission to file a
successive petition for post-conviction relief.
Discussion
The State sought the death penalty in this case based on the
qualifying aggravating circumstance that the victim was a police officer
killed in the course of duty. See Ind. Code § 35-50-2-9(b)(6). During the
sentencing phase of trial, over Lambert’s timely objection, the trial court
allowed the State to present victim impact testimony from Muncie Chief of
Police Donald Scroggins, Police Officer Terry Winters (the victim’s
brother), and Molly Winters (the victim’s widow). Indiana law allows such
testimony when relevant to the charged aggravating circumstance. However,
most of the victim impact evidence was irrelevant to the charged
aggravator, going “far beyond whether or not the victim was a police
officer killed in the line of duty.” Lambert, 675 N.E.2d at 1064.
The jury recommended the death penalty, the trial court followed the
jury’s recommendation, and we affirmed. However the nagging and unanswered
question is whether, absent the victim impact testimony, the jury would
have returned a recommendation of death. No one can say one way or the
other with any certainty. We do know that the inadmissible testimony
consumed some twenty-nine pages of transcript, was highly emotional, and
even inspired this court to observe, “[i]ndeed, the testimony of Molly
Winters about her husband and hero easily moves one to tears.” Id. at 1065
n.3. With this knowledge the Court declared:
We cannot say with any degree of confidence that the jury remained
uninfluenced by this testimony. Nor can we say with assurance that
the substantial rights of Lambert were not affected. Therefore, we
must hold that the error in admitting the victim impact testimony was
not harmless error.
Id. Precisely because “we cannot say with any degree of confidence that
the jury remained uninfluenced by [victim impact] testimony,” and that the
error in admitting the testimony “was not harmless,” I am compelled to
conclude that what we have here is the functional equivalent of no jury
recommendation at all. Stated somewhat differently, it is impossible to
know with any assurance whether the jury found the existence of the
aggravating circumstance beyond a reasonable doubt, or that the jury
determined that the existence of the aggravating circumstance outweighed
any mitigating circumstance or circumstances.
The Sixth Amendment requires that “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). Ring v. Arizona, made it clear that Apprendi applies
to capital sentencing schemes. 536 U.S. 584, 589. Here, Lambert’s death
sentence was based on facts extending the sentence beyond the maximum
authorized by the jury’s verdict finding him guilty of murder. But in
effect there was no determination that the qualifying aggravating
circumstance was proven beyond a reasonable doubt. If Lambert were before
us on direct appeal, it is clear that his death sentence would violate the
federal constitution. See Bostick v. State, 773 N.E.2d 266, 273 (Ind.
2002) (holding Apprendi and Ring were violated by sentence imposed under
Indiana’s capital sentencing statute without a jury determination that the
qualifying aggravating circumstances were proven beyond a reasonable
doubt).
As the seventh circuit noted, “the procedure followed in this case is
called into serious question by Ring [].” Lambert v. McBride, 365 F.3d
557, 563 (7th Cir. 2004), cert. denied, 125 S.Ct. 669 (2004). However, the
circuit court expressly held that Ring was not retroactive. Id. at 562.
More recently the Supreme Court has spoken on the issue and also has held
that Ring is an application of the procedural rule announced in Apprendi,
and as such does not apply retroactively to cases already final on direct
review. Schriro v. Summerlin, 124 S.Ct. 2519, 2522-26 (2004). But that is
not the end of the analysis. This Court has addressed previously the
propriety of affirming a death sentence under circumstances analogous to
those presented here.
The trial court sentenced Benny Saylor to death for a 1992 murder
despite a unanimous jury recommendation against the death penalty. At the
time, the jury’s death penalty recommendation was advisory only and thus
not binding on the trial court. Indiana’s capital sentencing statute was
amended in 2002 to provide in part, “[i]f the jury reaches a sentencing
recommendation, the court shall sentence the defendant accordingly.” Ind.
Code § 35-50-2-9(e). Recognizing that the legal landscape had changed
since Saylor was sentenced, we exercised our authority under Article VII,
Section 4 of the Indiana Constitution and concluded that Saylor’s death
sentence was inappropriate. In doing so we said, “even if the Sixth
Amendment does not bar Saylor’s execution for a pre-Ring crime, as a matter
of Indiana state law Saylor, if tried today, could not be sentenced to
death without a jury recommendation that death be imposed.” Saylor, 808
N.E.2d at 648.
It is true, as the majority points out, the jury in this case did not
“unanimously recommend against the death sentence.” Order at 3. However,
the reverse is equally true: the jury did not properly recommend in favor
of the death sentence. Before a jury can recommend the death penalty, it
must find that “(1) the state has proved beyond a reasonable doubt that at
least one (1) of the aggravating circumstances listed in subsection (b)
exists; and (2) any mitigating circumstances that exist are outweighed by
the aggravating circumstance or circumstances.” Ind. Code § 35-50-2-9(l)
2002. In this case, the trial court as well as this court found the
existence of the aggravating circumstance: a police officer killed in the
course of duty. See I.C. § 35-50-2-9(b)(6). And certainly the record
would seem to support the existence of the aggravator. We cannot say,
however, as a matter of law that the jury made such a finding. In fact,
but for the improperly admitted testimony, given Lambert’s age at the time
of this murder (twenty) and the fact that he was highly intoxicated
(scoring .18 on a breathalyzer test) it is conceivable that even had the
jury found the existence of the charged aggravating circumstance, the jury
may very well have determined that these two mitigating circumstances
outweighed the sole aggravating circumstance and thus would have
recommended against the death penalty. It is also conceivable that even
finding that the aggravating circumstance outweighed the mitigating
circumstances the jury may have exercised its authority under Article 1,
Section 19 of the Indiana Constitution and recommended against the death
penalty. See Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994) (commenting
that because of Art. 1, § 19, a jury in a criminal case is not bound to
convict even in the face of proof of guilt beyond a reasonable doubt); Pope
v. State, 737 N.E.2d 374, 380 (Ind. 2000) (noting that “even in the face of
proof beyond a reasonable doubt to the contrary,” the jury nonetheless
could have recommended against life without parole either upon a finding
that the State failed to prove the statutory aggravator, or that the
statutory aggravator outweighed any mitigating circumstances).
A judge is not free under the 2002 amended statute to impose a death
sentence absent a jury’s unanimous finding that the State has proved beyond
a reasonable doubt the existence of at least one of the statutory
aggravating circumstances. Under the amended statute, the trial court is
required to “provide a special verdict form for each aggravating
circumstance alleged.” Ind. Code § 35-50-2-9(d). As this Court has
observed, “[i]t is thus conceivable that a penalty phase jury could return
a verdict finding one or more aggravators proven beyond a reasonable doubt,
but be unable to reach unanimous agreement on whether any mitigating
circumstances are outweighed by the aggravating circumstances.” State v.
Barker, 809 N.E.2d 312, 316 (Ind. 2004). Under those circumstances the
trial court is authorized to “discharge the jury and proceed as if the
hearing had been to the court alone.” Ind. Code § 25-50-2-9(f). Still,
however, “[i]n the event a penalty phase jury is unable to reach a
unanimous decision as to the existence of aggravating circumstances, []
Ring and Apprendi would prohibit the trial judge from proceeding under
Subsection 9(f) and a new penalty phase trial would be required.” Barker,
809 N.E.2d at 316 (citation omitted). Here, although the reasons differ
slightly from those in Saylor, it is apparent to me that as a matter of
Indiana statutory law, if tried today Lambert could not be sentenced to
death under the facts presented in this case. And this is so because as a
practical matter there has been no jury finding of the statutory
aggravating circumstance.
I would therefore (1) grant Lambert’s request to file a successive
petition for post conviction relief, (2) vacate his sentence of death based
on the merits of his claim, and (3) remand this cause to the trial court
for further proceedings. I would instruct the trial court that if the
State elects to dismiss its request for a death sentence, then the trial
court may proceed accordingly and resentence the defendant to a term of
years as authorized by Ind. Code § 35-50-2-3(a).[1] I would also instruct
that if the State proceeds with its death sentence request, then the trial
court shall convene a new penalty phase jury and conduct further
proceedings pursuant to Indiana Code § 35-50-2-9. See Bostick, 773 N.E.2d
at 273-74.
-----------------------
[1] Upon remand the trial court has the authority either to (i) order a new
sentencing hearing, (ii) order additional briefing and then issue a new
order, or (iii) issue a sentencing order without further proceedings.
O’Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 2001).