Legal Research AI

Lambert v. State

Court: Indiana Supreme Court
Date filed: 2005-04-28
Citations: 825 N.E.2d 1261
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5 Citing Cases

                                   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.

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[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).