Lambert v. State

• Decision Date: 31 December 1996
• Docket Number: No. 18S00-9107-DP-544,18S00-9107-DP-544
• Citation: 675 N.E.2d 1060
• Parties: Michael Allen LAMBERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1060

675 N.E.2d 1060

Michael Allen LAMBERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 18S00-9107-DP-544.

Supreme Court of Indiana.

Dec. 31, 1996.

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

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for appellee.

ON PETITION FOR REHEARING

SELBY, Justice.

This is a petition for rehearing of this Court's decision to affirm the trial court's sentence of death in Lambert v. State, 643 N.E.2d 349 (Ind.1994). Lambert was tried, convicted, and sentenced to death for the murder of a police officer. As a result of Lambert's initial direct appeal, and by stipulation of the State, this Court remanded the case to the trial court to reconsider evidence of Lambert's intoxication and its effect as a mitigator under Ind.Code Section 35-50-2-9(c)(6). After reconsideration of the intoxication mitigator, the trial court again sentenced Lambert to death. This Court affirmed that sentence on direct appeal. Lambert v. State, supra. Lambert now petitions for rehearing, raising multiple issues. We grant his petition for rehearing solely on the issue of the admissibility of certain victim impact testimony at the sentencing phase of the trial.

On direct appeal, we deemed that the issue of the admissibility of victim impact testimony was waived. We reasoned that Lambert had "assert[ed] error in the admission of victim-impact evidence only on grounds that it is contrary to Indiana statutes concerning the probation officer's presentence investigation[,] Ind.Code Section 35-38-1-8.5(a)[,]" and therefore he had waived his relevancy objection to the admission of this evidence. Lambert, 643 N.E.2d at 354 (emphasis added).

Lambert notes in his Petition for Rehearing that the objections which he made at trial regarding the admission of this evidence were not limited to statutory concerns. Rather, Lambert consistently objected to the admissibility of the evidence on the grounds that it was irrelevant. For example, he introduced a Motion to Exclude Victim Impact Evidence, and he continually objected to the admission of victim impact evidence during the penalty phase on the basis that this victim impact evidence constituted irrelevant aggravators. Also, in his brief on direct appeal, Lambert argued that the extensive victim impact testimony goes "far beyond the 'quick glimpse' " of the victim's life and the impact of the crime permissible under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). (Brief for Appellant at 9, 25.) Additionally, Lambert objected to the jury's recommendation because it had been tainted by the extensive victim impact testimony. Thus, a review of the record indicates Appellant did raise relevancy objections to the victim impact testimony at trial and did adequately, though perhaps imprecisely, preserve his objections on appeal. We grant his Petition for Rehearing to review those objections.

FACTS

While Lambert v. State contains a full recital of the facts, we will briefly restate them here. During the afternoon of December 27, 1990, Michael Allen Lambert, then a twenty-year-old man, began consuming alcohol. At approximately 8:00 p.m., he went to a bar in Muncie, Indiana where he continued drinking. A little after 1:00 a.m., on December 28, 1990, Muncie police officers were called to an accident scene. At the scene, an officer discovered Lambert attempting to crawl under a car. When confronted, Lambert explained that he was crawling under the car to go to sleep. The police arrested Lambert for public intoxication. They cuffed Lambert's hands behind his back, gave him a brief pat-down search, and then placed him in the back seat of Officer Gregg Winters' police car. Officer Winters began driving Lambert toward the police station.

A few minutes later, two officers noticed Officer Winters' vehicle approaching them. They then saw Officer Winters' vehicle suddenly slide off the road and into a ditch. Upon investigation, they found Officer Winters with five .25 caliber firearm wounds to the back of his head and neck. Lambert was seated in the back of Officer Winters' police car, and a .25 caliber pistol was laying on the patrol car's floor. Lambert's arms remained handcuffed; his hands, when later examined, showed traces of having been within six inches of the firing of a firearm. The pistol proved stolen from his employer.

At the sentencing phase of the trial, the State presented victim impact testimony in support of the death penalty. Lambert objects to the testimony of three witnesses as improper victim impact testimony: Muncie Chief of Police Donald Scroggins; Officer Terry Winters, a Muncie police officer and the victim's brother; and Molly Winters, the victim's wife.

The court first permitted Chief Scroggins to testify, over Lambert's relevancy objections, about the effect that Officer Winters' death had both on Chief Scroggins personally and on the members of the Muncie Police Department. Chief Scroggins was permitted to testify that at Officer Winters' funeral over twenty different police agencies were represented, and that the Department had received cards and letters from police departments all over the country. He testified that he and other members of the department had sought psychological counseling to cope with Officer Winters' death, and that after the shooting, because he was unable to function as he felt a Chief of Police should, he contacted his physician for prescription medication.

The court next heard from Officer Terry Winters, the victim's brother. Officer Winters testified, over defendant's continued relevancy objections, that his brother had loved being a policeman, and that his brother's death had adversely affected Officer Terry Winters' job performance and attitude toward his job. Officer Winters testified about his other brothers' employment, his father's place of employment, and his mother's place of employment.

Next, Molly Winters, the victim's widow, provided penalty phase testimony regarding her relationship with Officer Gregg Winters. She too testified over defendant's continued objections. She stated that they had been married for six-and-a-half years and that they had two sons, Kyle and Brock, ages four-and-a-half years and twenty months old, who liked sports, roughhousing and bike riding. She was permitted to lay a foundation for admission into evidence of a photo of the family taken the previous Christmas. She testified that Officer Winters was a good father and husband. She further testified that he was a dedicated officer who loved his job, and that she had encouraged him to buy and wear a bullet-proof vest prior to the time that vests were issued by the department. "I told him ... I want you to get a vest and to wear it for added protection because I'm worried about you. I want to make sure that every night that you go to work, you come home safe, and I've got two little babies, and I don't want to raise them by myself." Molly Winters then related the events that occurred between the time of Officer Winters' shooting and his death eleven days later:

State: He survived 11 days, is that correct?

Mrs. Winters: That's correct.

State: Did your boys get to see him in the hospital before he died?

Mrs. Winters: Yeah. I had a couple of doctors that told me don't subject them to that. But I told them they were wrong because it was very important to me that my children know that Daddy went to work. He did his job, and, as we put it, a bad guy got him. And we don't know the outcome, but Daddy is hurt very badly, and we could go and see him and talk to him, but he just can't talk to us.

State: Did the boys go and see him?

Mrs. Winters: I took them back, and I stayed out in the hallway, and I explained to my oldest son, Kyle, what was going on because the baby was nine and a half months and he didn't know. And I said, if you want to touch Daddy, you can, but you don't have to. So we went on in.

When we went in, he asked me numerous questions, you know about the machines and different things, and then he said, Mommy, can you do me a favor?

And I said yeah.

He said, can you tell Daddy I love him?

And I said, yeah, I can do that. And I said, do you want to hug Daddy or kiss him?

And he said, no, I better not right now, but I will later. And he said, Daddy, you have good dreams.

So we went out, and then I had Kyle with me the entire time I was in the hospital with Gregg. And every time he asked about his daddy or wanted to see his daddy or tell his daddy something, I took him in.

And the night that we lost Gregg, they moved him to the hospice floor. And when he died, it was more of a homey atmosphere, and I took Kyle in 'cause we had open visitation, and most of the machines were gone, and the sterile atmosphere was gone, and he climbed up on the bed next to Gregg, and he talked to him for the first time without telling me to tell him things. And he said, I love you, Daddy.

And then there was a big window in his room, and Gregg and Kyle, they always went places together. They would dress alike a lot of times. They would go to the bypass and look for semis that they could pass.

State: Did they have identical jogging suits?

Mrs. Winters: Yeah, yeah. They had a couple of identical outfits.

State: Kind of a tradition about McDonald's restaurants?

Mrs. Winters: Yes, yes. They would put their outfits on on payday, and Gregg would take him with him to get his check, and they'd go to the bank, and then it was a boy's day out. They would go to McDonald's on Madison Street, and they would sit at the bar, and they would have lunch together.

And when I had Brock, there were several times that Gregg took Brock, but before they would leave when they didn't take Brock, they would tell him, Brockie, now when you get to be a big boy like Kyle, you get to go too. When you can start eating, then you...