743 N.E.2d 719 (Ind. 2001), 18S00-9702-PD-96, Lambert v. State

Docket Nº:18S00-9702-PD-96.
Citation:743 N.E.2d 719
Party Name:Michael Allen LAMBERT, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
Case Date:March 05, 2001
Court:Supreme Court of Indiana
 
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743 N.E.2d 719 (Ind. 2001)

Michael Allen LAMBERT, Appellant (Petitioner below),

v.

STATE of Indiana, Appellee (Respondent below).

No. 18S00-9702-PD-96.

Supreme Court of Indiana

March 5, 2001

Rehearing Denied May 9, 2001.

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Susan K. Carpenter, Public Defender of Indiana, Thomas C. Hinesley, Kathleen Cleary, Deputy Public Defenders, Indianapolis, IN, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SULLIVAN, Justice.

Michael Allen Lambert was sentenced to death for the murder of a Muncie police officer. His conviction and sentence were upheld on direct appeal and on rehearing. We now affirm the denial of Lambert's petition for post-conviction relief, finding that this Court did not engage in what Lambert calls "unconstitutional appellate sentencing," the post-conviction judge did not err by declining to disqualify himself, and Lambert's trial and appellate counsel were not ineffective.

Background

Our earlier opinions in this matter describe in detail the crimes of which Lambert was convicted. In brief, Lambert shot Muncie Police Officer Gregg Winters five times in the back of the head on December 27, 1990. He was under arrest at the time of the shooting and was handcuffed and alone in the back of Winters's patrol car. A jury convicted Lambert of Murder 1 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 sentencing but upheld Lambert's death sentence after independent review of the aggravating and mitigating circumstances. See Lambert v. State, 675 N.E.2d 1060 (Ind.1996), cert. denied 520 U.S. 1255, 117 S.Ct. 2417, 138 L.Ed.2d 181 (1997). Lambert petitioned for post-conviction relief and now appeals the denial of that petition.

Discussion

Indiana law allows for collateral attack of a judgment of conviction and sentence through a petition for "post-conviction relief." See Miller v. State, 702 N.E.2d 1053, 1057 (Ind.1998), cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000). This quasi-civil procedure "create[s] a narrow remedy for subsequent collateral challenges to convictions, which must be based on grounds enumerated in the post-conviction rules." Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000) (citations omitted), cert. denied, 531 U.S. 1128, 121 S.Ct. 886, 148 L.Ed.2d 793 (2001)

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Under the post-conviction rules, the trial court must make findings of fact and conclusions of law on all issues presented in the petition. See Ind. Post Conviction Rule 1(6). Our review on appeal is of these findings and conclusions. See Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). The post-conviction procedures do not provide a petitioner with a "super-appeal" or opportunity to consider freestanding claims that the original trial court committed error. Such claims are available only on direct appeal. Williams, 724 N.E.2d at 1076.

Although these principles are familiar, we cite them for a particular reason here. It is not our practice to use our opinions to critique the performance of counsel. We feel constrained, however, to say that Lambert's brief is for the most part organized and written with disrespect for these principles of post-conviction review. The brief consists of 83 pages of argument, the first 61 of which contain claims framed as trial court error. Only the final 22 pages and a seven-page supplemental brief challenge decisions of the post-conviction court. The final 22 pages and the supplemental brief incorporate by reference much of the material in the first 61 pages, sometimes in only the most general way. Briefs so organized and written hinder appellate review.

A petitioner who has been denied post-conviction relief--such as Lambert--appeals from a negative judgment. "This is because at the trial on the petition for post-conviction relief, the petitioner has the burden of establishing any grounds for relief by a preponderance of the evidence." Miller, 702 N.E.2d at 1058. See also Ind. Post Conviction Rule 1(5) ( "The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence."). "When a petitioner appeals from a negative judgment, he or she must convince the appeals court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the trial court." Miller, 702 N.E.2d at 1058. Stated slightly differently, "[t]his Court will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Id.

I

Lambert contends that his death sentence must be vacated because this Court acted without authority when we reweighed the aggravating and mitigating circumstances and affirmed the sentence. See Appellant's Br. at 72. He characterizes our opinion on rehearing as having "engag[ed] in appellate sentencing" contrary to constitutional safeguards and statutory procedures. Id. In this vein, Lambert asserts that: (1) the Indiana Constitution and Indiana statutes do not grant this Court authority or jurisdiction to impose a sentence; (2) our purported sentencing deprived him of his constitutional and statutory right to neutral appellate review; (3) the sentencing deprived him of his federally guaranteed due process right to a hearing prior to sentencing; and (4) this Court failed to follow the statutory procedures for sentencing. 3

Our earlier opinion invoked our power to reweigh aggravating and mitigating circumstances after finding flaw in a trial court's sentencing process. See Lambert v. State, 675 N.E.2d 1060, 1065 (Ind.1996)

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. 4 As we noted in Bivins v. State:

Where we find an irregularity in a trial court's decision to impose the death sentence, this Court has various options, as correctly noted by the defendant. Among these are: 1) to remand to the trial court for a clarification or new sentencing determination; 2) to affirm the death sentence if the constitutional error is harmless beyond a reasonable doubt; and 3) to reweigh the proper aggravating and mitigating circumstances independently at the appellate level.

642 N.E.2d 928, 957 (Ind.1994) (emphasis added). We have invoked this power in several death penalty cases. See Matheney v. State, 688 N.E.2d 883, 909-10 (Ind.1997), cert. denied, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999); Bivins, 642 N.E.2d at 957. Cf. Bellmore v. State, 602 N.E.2d 111, 129-30 (Ind.1992) (recognizing option of independent review but choosing instead to remand). As set forth above, Lambert's claim for relief on this issue is grounded in his assertion that it was beyond our authority under Indiana law to review the propriety of Lambert's sentence and affirm it after finding trial court sentencing error. We reaffirm that our review of and decision to affirm (or modify or reverse) a sentence under such circumstances is an exercise of our constitutional authority to "review and revise" sentences. Ind. Const. art. VII, § 4; Bellmore, 602 N.E.2d at 130 ("This Court has long recognized and exercised its authority under our state constitution and statutes to conduct an independent reweighing of aggravating and mitigating factors in determining the appropriateness of a death penalty.").

Lambert also contends that our decision on rehearing violated the federal Constitution. But the United States Supreme Court has explicitly approved this type of independent reweighing. For example, that Court has held that "[i]n a weighing State, when a reviewing court strikes one or more of the aggravating factors on which the sentencer relies, the reviewing court may, consistent with the Constitution, reweigh the remaining evidence or conduct a harmless error analysis." Parker v. Dugger, 498 U.S. 308, 319, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). See also Clemons v. Mississippi, 494 U.S. 738, 741, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).

II

Lambert contends that the post-conviction court's judgment must be vacated and new post-conviction relief proceedings ordered because the judge erroneously declined to disqualify himself. Lambert maintains that the post-conviction judge--who also presided over Lambert's trial--demonstrated disqualifying bias through statements he made during the sentencing phase of the original trial. He also argues that the judge could not act as a neutral factfinder on issues related to the presence of uniformed officers in the courtroom during the original trial and sentencing because the judge himself observed the officers. The post-conviction court denied Lambert's motion for a new judge, concluding that "these facts do not support a rational inference of bias or prejudice." (R.P-C.R. at 176.)

First, Lambert argues that the post-conviction judge demonstrated disqualifying bias through the following eight statements he made during the original trial: (1) "This act clearly was not the result of, or caused [by,] alcohol. This was

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the product of a wicked mind"; (2) "The Defendant's response was, in my judgment, indicative of a very serious character defect manifested by one who is bent on violence"; (3) "His act was totally and completely depraved"; (4) "[I]n this case, for one so young to react so...

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