Lambert v. State

Decision Date06 December 1994
Docket NumberNo. 18S00-9107-DP-544,18S00-9107-DP-544
Citation643 N.E.2d 349
PartiesMichael Allen LAMBERT, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Mark Maynard, Anderson, Ronald McShurley, Muncie, for appellant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Upon conviction of the murder of a police officer, appellant received the death penalty. Oral argument was held in this cause on June 3, 1993. The State conceded the trial court applied the wrong standard in determining intoxication is not a mitigator; therefore, this Court ordered the case remanded to the trial court to reconsider evidence of intoxication and its effect on the penalty in view of Ind.Code § 35-50-2-9(c)(6). The trial court has returned its findings and judgment as per our Order and the parties have filed their respective briefs pertaining thereto.

The facts are: During the afternoon of December 27, 1990, appellant consumed several alcoholic drinks. At approximately 8:00 p.m., he went to the 300 Club Bar on the south side of Muncie, Indiana where he consumed additional alcoholic beverages. His conduct there was described as "radical" and "dancing around wild-eyed." A little after 1:00 a.m., on December 28, 1990, Muncie Police Officers were dispatched to a property-damage accident. When they arrived, they observed a utility truck with the name "Jim Allen's Service Maintenance" painted on the side. Shirts inside the truck bore the name "Mike." The driver could not be found and the truck was towed.

A short time later, Officer Kirk Mace observed appellant trying to crawl under a car. When Officer Mace investigated, appellant told him he was going to sleep under the car. He was lightly dressed, it was snowing and the temperature was in the teens. The officer concluded that appellant was intoxicated and placed him under arrest for public intoxication. Appellant was subjected to a "quick pat-down search," was handcuffed, and was placed in the back of the police car. Then, Officer Gregg Winters, with only he and appellant in the police car, started driving to the jail which was approximately fifteen minutes away.

A few minutes later, Deputy Sheriff Mike Scroggins and Deputy Greg Ellison were driving their patrol cars east on Riggins Road when they observed a westbound car approaching. It suddenly slid off the road, coming to rest against a fence in a ditch. As the car went into the ditch, the officers were able to observe that it was a police car. They observed Officer Winters immobile behind the steering wheel and appellant in the back seat of the car. It was discovered that Officer Winters had suffered gunshot wounds to the back of the head and neck, and although appellant was handcuffed, there was a .25 caliber pistol lying on the floor of Winter's police car. Ballistics tests later established the weapon was used to inflict the wounds on Officer Winters. It also was learned later that appellant had stolen the pistol from his employer.

Six empty cartridge casings were located in the car and five slugs were recovered, one from the body of Winters during the autopsy, two from the front seat of the car, one from Winters' clothing at the hospital, and one which was lodged between the dash panel and the left pillar of the car. An autopsy revealed that Officer Winters in fact had been struck by five separate bullets.

Despite the fact appellant was handcuffed at the time, he apparently was able to recover the pistol from his clothing and fire the shots into the back of the head and neck of Officer Winters. Police conducted a demonstration to determine if such an act was possible. The demonstration was videotaped and clearly established the fact that a person of appellant's height and weight in fact could accomplish such a feat although it did require a certain amount of physical dexterity.

Appellant claims the jury panel was improperly drawn and that the system used by Delaware County to obtain prospective jurors uses the voter registration lists only and thus is in violation of Ind.Code § 33-4-5-2(a), which requires a list of prospective jurors be chosen from not only the list of legal voters in the county but also the latest tax schedules of the county.

Appellant concedes that this procedure was approved in Rogers v. State (1981), Ind.App., 428 N.E.2d 70. Appellant argues that in 1989 the legislature amended Ind.Code § 33-4-5-7 to eliminate the requirement that a person be a resident voter in order to be qualified for jury duty and in retaining the language in Ind.Code § 33-4-5-2(a) that the jury panel be drawn both from the voter registration list and the tax schedules, further provided that potential juror lists could be expanded beyond those persons to include various other groups.

Appellant takes the position that when the legislature undertakes to amend a statute it is presumed to be aware of prior language and the Court interpretation of the statute. Thus, the prior holding in Rogers that a drawing from either registered voters or property owners would be proper was altered by the statutory amendment. Henceforth, it is required that both voter registration and tax schedules lists be used in drawing potential jurors.

In order to show reversible error in the manner in which prospective jurors are chosen, an appellant must show a common thread running through the excluded group, showing that the exclusion was such as to prevent juries from being made up of a certain segment of the population of the community. See Moore v. State (1981), Ind.App., 427 N.E.2d 1135. In the case at bar, appellant in effect is arguing that property owners who are not registered voters would have been excluded. However, there is no showing that property owners as a group were excluded from the jury. As the State points out, many property owners in fact are registered voters and there is no showing here that a jury was made up entirely of registered voters only and excluded property owners. Under the circumstances of this case, the observations made by the Court of Appeals in Rogers are still valid and applicable to the case at bar. We see no reversible error in the manner in which the jury was chosen.

Appellant claims the trial court erred in denying his motion for change of venue or venire. The record here amply demonstrates that this case received a high degree of publicity not only in Delaware County but throughout the entire state. During voir dire examination, the jurors were questioned extensively concerning the knowledge they had gained of the case through news media or any other source. Each person who eventually was chosen and served on the jury was able to state that although they had read accounts of the incidents leading to appellant's trial, they would be able to make their determination based solely on the evidence heard in the case and would follow the instructions of a trial court. This was in keeping with our holding in Davidson v. State (1991), Ind., 580 N.E.2d 238.

We would further point out that appellant did not exhaust his peremptory challenges which would be a prerequisite to demonstrating that he was subjected to a biased panel. Reinbold v. State (1990), Ind., 555 N.E.2d 463. There is no evidence in this record to support appellant's claim that the trial court erred in denying his motion for change of venue or change of venire.

Appellant contends that allowing the State to proceed to seek a "death-qualified" jury subjected him to a trial by a "guilt-prone" jury. Appellant concedes that both the Supreme Court of the United States and the Supreme Court of Indiana have held that death qualification is not unconstitutional. See Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137; Fleenor v. State (1987), Ind., 514 N.E.2d 80, cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158. However, he urges us to reconsider this line of cases in light of Georgia v. McCollum (1992), 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33. We do not find that case on point here. McCollum holds that the prosecution is barred from exercising peremptory challenges in a racially discriminatory manner.

We find that both the United States Supreme Court and this Court still adhere to the proposition that it is proper to qualify a jury concerning their willingness to give the death penalty. Appellant argues that McCollum stands for the proposition that excluding any class of persons from a jury deprives those persons of their rights and undermines the fairness of the judicial system. However, when persons state they cannot perform their duties as required by law because of their personal convictions, they cannot qualify for jury service in that particular case. See Utley v. State (1992), Ind., 589 N.E.2d 232, cert. denied, 506 U.S. 1058, 113 S.Ct. 991, 122 L.Ed.2d 142. We continue to hold that it is valid for the State to qualify a jury to consider the death penalty.

Appellant claims the trial court erred in denying his motion to suppress his statement to police and admitting that statement in evidence at trial. Appellant contends he was so intoxicated at the time he was arrested and questioned that he was incapable of knowingly and freely waiving his right against self-incrimination; therefore, his statement to police was not admissible. There is no question that a person may be so intoxicated that he is incapable of giving a knowingly voluntary statement to police. See Thomas v. State (1983), Ind., 443 N.E.2d 1197. We have held that a defendant's statement will be deemed incompetent only when he is so intoxicated that it renders him unconscious of what he is doing or produces a state of mania. A lesser degree of intoxication affects only the weight and not the admissibility of his statement. Houchin v. State (1991), Ind., 581 N.E.2d 1228.

Officer Stanley testified that when he started taking appellant's statement at 4:05 a.m. on December 28, appellant appeared to be...

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    ...Murder1 and the trial court sentenced him to death.2 We affirmed Lambert's conviction and sentence on direct appeal. See Lambert v. State, 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 ......
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