Lambert v. State, s. 91-KA-00942-SC
| Decision Date | 06 April 1995 |
| Docket Number | Nos. 91-KA-00942-SC,91-KA-00943-SCT,s. 91-KA-00942-SC |
| Citation | 654 So.2d 17 |
| Parties | Woodie C. LAMBERT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Kim T. Chaze, Hattiesburg, for appellant.
Michael C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.
EN BANC.
ON PETITION FOR REHEARING
The original opinion in this case is withdrawn and this opinion is substituted therefor.
This case comes to this Court on appeal from the Circuit Court of Walthall County. On August 5, 1991, Woodie C. Lambert was indicted on six counts, consisting of one count of sexual battery and five counts of touching or handling a child for lustful purposes. 1 Lambert had been originally charged with these crimes four months earlier and had received a preliminary hearing on April 11, 1991 wherein he was represented by Calvin Cosnahan, the same counsel who ultimately represented him at trial. On August 15, 1991, Lambert was arraigned and trial was set for August 22, 1992.
Lambert filed numerous motions including a motion for severance and a motion for change of venue. Cosnahan also moved to withdraw as counsel and requested a continuance. The court granted a severance as to Count II and denied the other motions. Lambert was tried on Count II and found guilty.
A week later, on August 29, 1992, Lambert was tried on another count, Count III, and also found guilty. Lambert was sentenced to serve eight years on each count, the sentences to run consecutively.
For purposes of appeal, the two cases have been consolidated. Feeling aggrieved Lambert appeals, raising the following issues:
I.
When an Accused is Arraigned and Informed of the charges in a deficient multi-count indictment six days before his Trial, and his Court-appointed Attorney announces to the Court that he is "Not Ready," a continuance should have been [sic] granted--especially since the State withheld Evidence from the defendant.
II.
The Defendant, seeking a Change of Venue, filed the appropriate Motions, pursuant to Sec. 99-15-35, stating that, due to the Pretrial Publicity, he could not receive a fair trial and, thus, created a presumption that the State failed to rebut herein.
III.
The Multi-count Indictment in this case is Violative of Sec. 99-7-2 Miss.Code Ann. in that it does not meet the Criteria established therein.
IV.
The Verdict is against the Overwhelming Weight of the Evidence and Defendant's Motions for a Directed Verdict should have been Granted in that the Evidence consists of an alleged Non-invasive Action reported One Year after the alleged incident.
We find that Issue I is dispositive of this case. The trial court should have granted the defendant his requested continuance. We must reverse the lower court because the failure to grant a continuance deprived the defendant of a fair trial.
Woodie Lambert is the divorced father of three daughters. At the time of these alleged acts, his oldest daughter was living with him. Two daughters from a second marriage would come to visit on various weekends. Sometimes the daughters would invite friends to come and spend the night. It was during these times when friends of his daughters would visit that Lambert is alleged to have acted improperly toward the minor females.
On or about August 10, 1990, Woodie Lambert's daughters, June and Joan, were visiting for the weekend and invited two friends, M.D. and D.R., to visit. Lambert's oldest daughter was away with her boyfriend.
After playing hide and seek, Joan and D.R. found June and M.D. in June's room. June was smoking a cigarette. Joan and D.R. also wanted a cigarette and asked M.D. to get some cigarettes from Woodie Lambert.
M.D. went to the back yard where Lambert was hanging clothes and asked Lambert if she could have some cigarettes. M.D. testified that Lambert told her she could if she would give him a real kiss. She then kissed him on the cheek. M.D. said that Lambert then placed his hands on her bottom and tried to kiss her on the mouth. M.D. freed herself and ran into the house. She told Joan and D.R. what had happened.
D.R. testified that she watched as M.D. went back to Lambert. D.R. said that she saw Lambert place his hand on M.D.'s bottom and try to kiss her. Joan testified that she saw M.D. go into the back yard, close to her father, but she could not see what happened.
M.D. testified that Joan and D.R. said that they did not believe her and told her to go back to Lambert so they could see what he did to her.
M.D. testified that when she went back to where Lambert was, Lambert again asked her for a kiss. Lambert put his hands inside her shirt and on her breast. M.D. also testified that Lambert put his hand inside her shorts and tried to touch her "private part." She said that she resisted by holding her legs tightly together.
June testified that her view of Lambert and M.D. was partially obstructed by a towel hanging on the clothes line but that she could see M.D.'s and her dad's feet close together. She said that M.D.'s feet were moving as if she were trying to get away. June said that M.D. was crying when she came back inside.
Later, M.D. and June went to sleep with Lambert on his waterbed. At first, according to M.D., she and June were sleeping next to each other. Later when she woke up, Lambert had moved over and was sleeping by M.D. and holding her tight. M.D. got up to go to the bathroom and went to sleep in another room where Joan and D.R. were.
M.D. testified that she told Lambert's oldest daughter Mary what happened and that when Mary confronted Lambert he denied that it happened.
M.D. did not tell her mother what happened until later. C.M., M.D.'s mother, testified that M.D. was in the fifth grade and was ten years old at the time of trial. She testified that M.D. told her what happened on March 22.
Lambert testified as the only witness for the defense. Lambert testified that one Friday night, his daughter and her boyfriend had borrowed his car and left the boyfriend's truck parked in front of his house. Lambert said that he caught the girls smoking in the back of the pickup truck. The cigarette butts matched the boyfriend's cigarette brand. Lambert said that he then gave them each one of his cigarettes and made them light a cigarette and smoke it to "teach them a lesson." When this did not work he told them to go play.
According to Lambert, M.D. later came out to him while he was hanging clothes and grabbed him and asked for some more cigarettes. Lambert said that M.D. was a very affectionate girl and always called him Daddy. Lambert testified that M.D. offered to give him five real kisses if he would give her cigarettes. Lambert said he refused.
Lambert testified that the next morning his older daughter Mary came to him and told him that M.D. had said that he touched her on her body and tried to kiss her. Lambert said that he confronted M.D. with the accusation and she first denied it. According to Lambert, she then admitted saying she was "just trying to scare the other kids."
Lambert said that M.D. came back to his house a couple of times after that.
The second trial involved Count III of the indictment. This concerned an incident which occurred on July 20, 1990. J.D. went to eat pizza with Joan and June Lambert. The girls had gone out to celebrate Joan's birthday. Afterwards they went to Lambert's house to spend the night.
J.D. testified that when she and Joan were together in the bathroom she heard something outside the door. When she looked outside she saw Lambert who claimed to be looking for something he dropped. After closing the door, J.D. stood in front of the door because of a hole that would allow someone to look into the bathroom. When Joan had finished her bath, J.D. asked her to stand in front of the door while she bathed and was dressing. Joan testified that this is what happened.
After leaving the bathroom, J.D. and Joan went to different parts of the house. According to J.D., Lambert came toward her like he wanted to hug her. As she moved toward him, he placed both of his hands on her bottom and held her buttocks tightly in his hands. According to J.D., Lambert was wearing some blue shorts that he slept in. There were no witnesses to what happened.
J.D. testified that she told D.R. about what happened at the time. J.D. said that she warned her sister not to go to Lambert's house and that she never went back.
C.M., J.D.'s mother, testified that J.D. was thirteen at the time of the incident. She confirmed that J.D. did not go back to Lambert's house and had begged her sister M.D. not to visit June at Woodie Lambert's house.
Lambert denied being outside the bathroom door. He also denied speaking to J.D. outside the door. He also denied that he held J.D. by her buttocks or tried to pull her toward him. He admitted that he might have hugged J.D.
In both cases, Lambert was found guilty of touching, handling and rubbing a female child under the age of 14. Lambert was sentenced to eight years each on count II and count III with the sentences to run consecutively.
When an Accused is Arraigned and Informed of the Charges in a Deficient Multi-count Indictment Six Days before his Trial, and his Court-appointed Attorney announces to the Court that he is "Not Ready," a Continuance should have been Granted--especially since the State withheld Evidence from the Defendant.
On August 15, 1991, Woodie Lambert was arraigned on a six count indictment. At the arraignment trial on all counts was set for August 22, 1991.
The State's Motion for Nolle Prosequi as to count six of the indictment was granted and an order entered on August 20, 1991. The indictment alleged the wrong victim.
On August 21, 1991, Lambert's counsel, Calvin Cosnahan, filed a Motion to Suppress Statements, Motions to Suppress Evidence, Motion to Withdraw as Counsel, Demurrer to the multi-count indictment, Motion for Severance, and Motion for Change of...
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