Lambert v. State

• Decision Date: 31 October 1984
• Docket Number: No. 54579,54579
• Citation: 462 So.2d 308
• Parties: Gary Dean LAMBERT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 308

462 So.2d 308

Gary Dean LAMBERT v. STATE of Mississippi.

No. 54579.

Supreme Court of Mississippi.

Oct. 31, 1984.

Rehearing Denied Jan. 16, 1985.

Travis Buckley, Dan C. Taylor, Ellisville, for appellant.

Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, DAN M. LEE and PRATHER, JJ.

PRATHER, Justice, for the Court:

This is an appeal from a criminal conviction in the Circuit Court of Covington County. Gary Dean Lambert was charged with capital murder, found guilty of murder Lambert appeals and assigns the following as error:

less than capital and sentenced to life imprisonment in the Mississippi Department of Corrections.

(1) Insufficiency of the indictment;

(2) The admission of allegedly irrelevant and insufficiently authenticated evidence.

(3) The granting of an instruction which would have permitted the jury to find the defendant guilty of manslaughter; and

(4) The trial court's failure to direct a verdict of not guilty;

In addition, Lambert, by supplemental brief pro se, argues that (5) he was denied effective assistance of counsel at trial in contravention of the Sixth Amendment of the United States Constitution.

I.

Gary Dean Lambert, a twenty-four year old unemployed oil field and construction worker, drove his wife to work at 3:00 p.m. in Hattiesburg on January 15, 1982. Thereafter Lambert visited friends and ultimately went to Nick's Ice House where he shot pool and drank beer from about 6:30 p.m. until midnight. At that time Lambert left Nick's with Sharon Smith to go to a private party.

At the party Lambert recalled talking to friends, consuming at least ten beers and whiskey, and smoking some marijuana. He left at about 2:30 a.m. to take Sharon Smith home, in a very intoxicated condition. Lambert was unable to drive and pulled into a gas station to call a friend. While there, Lambert recalled a man named Bob McLain whom he had met at the party asking for a ride home. Recognizing his own condition, Lambert agreed to take him home, but told McLain to drive. Lambert recalled nothing after that until the next morning.

On January 16, 1982, about 9:00 a.m. Herschel and Edwin Trigg were informed that something was wrong at their mother's home. Armed with a pistol and hammer, they discovered that Lambert's automobile was parked in the driveway of their mother's home and that the carport door was bashed open.

The badly bruised body of their 86 year old mother, Pearl Lott Trigg, lay in the bedroom of her home in Seminary, Mississippi. Gary Dean Lambert lay sleeping partially undressed next to the deceased body.

A checkbook with Gary Lambert's name and address on it was discovered under the body of Mrs. Trigg but the investigation failed to produce a murder weapon. Lambert could not recall any events after leaving the gas station until awakened by the Trigg brothers.

At some point, Edwin Trigg hit Lambert on the head with the hammer sufficiently hard enough to cause bleeding. The sheriff was called. Lambert was permitted by the Triggs to go to the bathroom, and after entering, he locked himself inside the bathroom until the sheriff's arrival. Neighbors and friends arrived at the home and were in and out of the home and car before the scene was made secure by law enforcement officers.

Two days later, a grand jury returned an indictment charging that Lambert did commit capital murder while engaged in the commission of the crime of burglary of a dwelling house.

At trial the theory of the prosecution was that Gary Dean Lambert killed Mrs. Trigg during the course of committing a sexual battery after breaking and entering.

The theory of the defense was that Lambert, in an advanced state of intoxication, was placed in Mrs. Trigg's bedroom by some unknown person or persons. Lambert's defense was lack of specific intent, accident, and general denial. State investigation failed to produce any other arrests.

At trial the prosecution developed a case based upon scientific testing. Dr. John Smith, the pathologist who performed the autopsy on Mrs. Trigg testified the cause of death to be strangulation because of fracture of the hyoid bone (Adam's apple) and larynx. Dr. Smith stated that there Jonette Gothard, an expert in field of forensic serology, testified that blood samples from the deceased, on the bed sheets and blood drawn from appellant Lambert all proved to be type "A" human blood. There was no evidence of seminal fluid or sperm in either the victim's mouth or her vagina.

was evidence of trauma in the form of bruises on the face and chest, extensive laceration of base of tongue, fractures of breast bone and ribs. He found a wad of bloody hair on the inside of the victim's larynx. The time of death was not determined.

Testifying for the State, Joe Andrews, a hair fiber specialist, stated that the hair removed from the larynx of Mrs. Trigg exhibited the same microscopic characteristics as the known pubic hair sample of Lambert or someone with similar hair characteristics. Hair removed from the hip, the chin and the mouth of the victim also compared favorably with the known pubic hair of the appellant.

Lambert's attorney also presented scientific proof supporting his defense. Sharon Jones, a blood alcohol specialist at the Mississippi Crime Lab, testified that blood taken from Gary Lambert at noon on January 16, 1982 tested an alcohol level in the blood of .08 percent.

A drug screen analysis on a urine sample obtained from the appellant on January 16, 1982, was performed by J.C. Smiley of the Mississippi State Crime Lab. According to the test, no drugs, chemicals or poison were present in the sample.

II.

Before the trial and throughout the proceeding, defense counsel challenged the sufficiency of the indictment, which charged that Lambert did:

Wilfully, unlawfully, feloniously and of his malice aforethought without the authority of law kill and murder Pearl Lott Triggs, a human being, while he, the aforesaid Gary Dean Lambert, was then and there engaged in the commission of the crime of burglary of the dwelling house then and there occupied by the aforesaid Pearl Lott Triggs, contrary to and in violation of section 97-3-19(2)(e) of the Miss.Code of 1972, Ann. as amended.

The right of an accused "to be informed of the nature and cause of the accusation," U.S. Const. Amend. VI, is a fundamental right.

The indictment clearly complied with Mississippi Code Annotated section 99-17-20 (1972) which requires that a capital murder indictment must set forth the section and subsection number of the code defining the offense alleged to have been committed. See Bell v. State, 353 So.2d 1141 (Miss.1978). This Court has pointed out that the purpose of section 99-17-20 is to "inform the defendant specifically of the charge against him." Rhymes v. State, 356 So.2d 1165 (Miss.1978).

Capital murder requires a charge of an underlying felony. Mississippi Code Annotated section 97-3-19(1)(c) (Supp.1983). In this case the underlying felony was burglary, which is the breaking and entering of a dwelling house with the intent to commit some crime. Mississippi Code Annotated section 97-17-19 (1972). Because the offense of burglary itself requires an underlying crime, an indictment for burglary that does not specify what crime the accused intended to commit is fatally defective. Newburn v. State, 205 So.2d 260 (Miss.1967). State v. Buchanan, 75 Miss. 349, 22 So. 875 (1898). The question thus raised is whether, in an indictment for capital murder, it is sufficient to allege burglary as the constituent offense without further specifying the crime committed or intended to be committed during the breaking and entering. The decision rests on the basis that capital murder is the charge, not burglary. The elements of capital murder are necessary, and the naming of the underlying felony is sufficient without its elements.

In this case defendant was not found guilty of capital murder, but murder In an analogous situation we have held many times that "One convicted of manslaughter may not on appeal complain of an instruction dealing with murder, even if erroneous." Carter v. State, 402 So.2d 817, 819 (Miss.1981); Moss v. State, 386 So.2d 1129 (Miss.1980); Hull v. State, 350 So.2d 60 (1977). The same reasoning applies here. This Court holds, therefore, that, where the defendant has been convicted of the lesser included offense of murder, we will not reverse because defendant was charged in an indictment for capital murder which failed to state the elements of the underlying constituent offense, in this instance burglary. We express no opinion here whether the indictment would be adequate had the defendant been convicted of capital murder.

less than capital. Therefore, the constituent offense allegation becomes immaterial.

We conclude that under these facts no reversible error is present in the indictment.

III. EVIDENCE

Challenge was made of the introduction of allegedly irrelevant and insufficiently authenticated evidence.

A. CHAIN OF CUSTODY

Appellant assigns as error the trial court's admission into evidence, over defense objection, of several items of physical evidence; the appellant contends that the State failed to prove continuous chain of custody of the evidence. The challenged items are S-18, a vial of bloody hair removed from the larynx of the decedent; S-22, hair samples removed from the hip area of the decedent; and S-23, hair samples removed from the chin and mouth area of the decedent.

From testimony in the record, it is apparent that there is no basis for challenging the authentication of Exhibit S-23. Continuous possession was established by the testimony at the trial of all parties who handled the evidence.

As to Exhibit S-18, Dr. Smith could not, however, recall the name of the crime lab personnel who actually received the evidence.

Exhibit S-22 was initially identified by Harold Marks, Criminal Investigator for the Mississippi...