Lambert v. State, No. F-96-1567.

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Writing for the CourtPER CURIAM.
Citation1999 OK CR 17,984 P.2d 221
Decision Date14 April 1999
Docket NumberNo. F-96-1567.
PartiesRobert Wayne LAMBERT, Appellant v. STATE of Oklahoma, Appellee.

984 P.2d 221
1999 OK CR 17

Robert Wayne LAMBERT, Appellant
v.
STATE of Oklahoma, Appellee

No. F-96-1567.

Court of Criminal Appeals of Oklahoma.

April 14, 1999.

Rehearing Denied May 25, 1999.


Mark Barrett Oklahoma, Indigent Defense System, Norman, Trial Counsel, for Appellant.

Kristi L. Christopher, Oklahoma Indigent Defense System, Capital Direct Appeals Division, Norman, Appellate Counsel for Appellant.

Lantz McClain, District Attorney, Sapulpa, Trial Counsel for Appellee.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, Appellate Counsel for Appellee.

984 P.2d 225
OPINION

PER CURIAM.

¶ 1 Robert Wayne Lambert was tried before a jury in Creek County District Court, Case No. CRF-87-240, and convicted of two counts of First Degree Murder in violation of 21 O.S.1981, § 701.7. In accordance with the jury recommendation,1 the Honorable Donald

984 P.2d 226
D. Thompson sentenced Lambert to death on each count. Lambert appeals his Judgment and Sentence

Facts

¶ 2 On October 6, 1987, Robert Wayne Lambert and Scott Allen Hain robbed, kidnapped and murdered Laura Lee Sanders and Michael Houghton. At some point, Lambert and Hain locked the victims in the trunk of the car. Lambert cut the gas line and one of the defendants set the car on fire. The victims died of asphyxiation and thermal burns.

¶ 3 Lambert was originally convicted in 1988 of first degree murder of both victims and sentenced to death. He was also convicted of two counts of kidnapping, two counts of larceny of an automobile, two counts of robbery with a firearm, and one count of arson. Lambert appealed his Judgment and Sentence. In 1994, this Court reversed Lambert's murder convictions and death sentences and remanded the case for a new trial.2 The Court affirmed the remaining convictions and sentences.

¶ 4 Before his re-trial, the State filed an Amended Information charging Lambert with First Degree Malice Murder and, in the alternative, First Degree Felony Murder.3 In 1996, the second trial was held. The jury again found Lambert guilty of two counts of first degree murder and sentenced him to death on each count.

Double Jeopardy Claims

¶ 5 In his first proposition of error, Lambert contends that double jeopardy barred his prosecution for felony murder. We disagree.

¶ 6 In 1988, Lambert was convicted of murder, kidnapping, larceny, robbery and arson. He appealed. In 1994, this Court reversed Lambert's murder convictions because the State did not charge Lambert with felony murder in its original Information. The original Information only charged Lambert with malice murder. Relying on that Information, Lambert took the stand at his first trial, admitted the underlying felonies, but denied he intended to kill the victims. Then, over Lambert's objections, the trial court instructed the jury on both malice murder and felony murder. The jury returned a general verdict of first degree murder, which this Court was compelled to treat as a finding of felony murder. The Court then concluded that Lambert was prejudiced and misled by the State's failure to charge felony murder and found the murder convictions had to be reversed.4 The other convictions were affirmed, including Lambert's conviction for robbery with a dangerous weapon. In affirming the robbery conviction, the Court stated, "We also recognize that should the State re-file the information charging felony murder, in addition to or in place of malice aforethought murder, the trial court can abrogate the conviction for armed robbery in the event Appellant is convicted of felony murder."5

¶ 7 Before the second trial, the State corrected its error and filed an Amended Information charging Lambert with two counts of malice murder and, in the alternative, two counts of felony murder. The underlying felony for the felony murder charge was robbery with a dangerous weapon. The jury

984 P.2d 227
was instructed on both felony murder and malice murder. Again, the jury returned a general verdict of first degree murder. The trial court did not abrogate the underlying felony conviction that was previously affirmed in Lambert I, and it does not appear that either party requested the court to do so

¶ 8 On appeal, Lambert argues that his 1996 first degree murder convictions are barred by double jeopardy because he has already been convicted of the two underlying felonies — robbery with a dangerous weapon — and these felony convictions are final. Before getting into the merits of this argument, we note that we face the same problem that we faced in Lambert I and in Hain v. State.6 The jury, although instructed on malice murder and felony murder, returned a general verdict of first degree murder. This Court has "long held that a conviction for murder may be affirmed where alternative theories are charged when the evidence supports either malice aforethought or felony murder."7 Here, the evidence supported either theory and the instructions on both theories were proper. However, because the jury returned a general verdict, we do not know under which theory the jury convicted Lambert.8 This Court has held that where the jury's verdict does not specify either felony murder or malice murder, the verdict must be treated as one of felony murder.9 Thus, Lambert's conviction must be treated as felony murder. We now turn to the merits of Lambert's double jeopardy claim.

¶ 9 It is well-established that when an appellate court reverses a conviction and remands the case for a new trial, double jeopardy does not bar re-trial. This principle known as "continuing jeopardy" is implicit in re-trials after a reversal on appeal and "`has application where criminal proceedings against an accused have not run their full course.'"10 The Supreme Court has made clear that "[i]nterests supporting the continuing jeopardy principle involve fairness to society, lack of finality, and limited waiver."11 Since this case concerns a re-trial after a successful appeal, it would appear that double jeopardy does not bar Lambert's felony murder prosecution.

¶ 10 Lambert tries to get around this problem by arguing that jeopardy did not attach to the felony murder charge until 1996. According to Lambert, two separate prosecutions are at issue: the one in 1986, in which he was prosecuted for malice murder and the underlying felonies and at which jeopardy for malice murder and robbery attached; and the one in 1996, in which he was prosecuted for felony murder and malice murder and at which jeopardy for felony murder attached. Lambert argues that since jeopardy did not attach to felony murder until 1996, continuing jeopardy does not apply.

¶ 11 To the contrary, we find jeopardy for the charge of felony murder attached at the first trial. This Court has found that "where an information charges first degree malice aforethought murder, a conviction may be had for felony-murder if supported by the evidence."12 Thus, if Lambert had not been prejudiced by the felony murder instructions, a conviction on those grounds would have been affirmed. Moreover, the failure to charge Lambert with felony murder was a due process error rather

984 P.2d 228
than a jurisdictional error. In Parker v. State,13 this Court stated
Jurisdiction is conferred on the trial court by the commission of a public offense where venue properly lies in that trial court. 22 O.S.1991, §§ 121-136. Thus, a trial court's jurisdiction is triggered by the filing of an Information alleging the commission of a public offense with appropriate venue. Therefore, this Court concludes that any failure to allege facts constituting the offense raises due process questions but does not affect the trial court's jurisdiction.

Therefore, Lambert's re-trial for felony murder is not a new and separate action.14

¶ 12 Lambert tries to persuade the Court that LaFevers v. State,15 controls and bars his prosecution for felony murder. Again, we disagree. In LaFevers, the defendant was originally tried and convicted of first degree burglary, first degree robbery, kidnapping, larceny of a motor vehicle, malice murder, third degree arson, first degree rape, and forcible anal sodomy. On appeal, the Court affirmed the burglary, robbery, kidnapping and larceny convictions, and reversed the malice murder, third degree arson, rape and sodomy convictions.16 LaFevers was re-tried and again convicted of malice murder. On appeal of the re-trial, LaFevers argued error occurred when the State charged him with felony murder in the re-trial since he had previously been convicted of the underlying felony of kidnapping and that conviction was affirmed. The Court agreed but upheld LaFevers' conviction because LaFevers was convicted of malice murder and not felony murder. Lambert's case is distinguishable from LaFevers. First, in LaFevers felony murder was not charged or at issue in the first trial. Jeopardy for the felony murder charge thus did not attach until LaFevers' second trial. Unlike Lambert's case, the LaFevers' Court did not have continuing jurisdiction over the felony-murder charge, as we do here. Second, the Court in Lambert I clearly intended re-prosecution on felony-murder.

¶ 13 The real question here is whether affirming the robbery convictions in Lambert I somehow precludes prosecuting and punishing Lambert for felony murder. Under Oklahoma law, felony murder and the underlying felony merge into one offense.17 Traditionally, when this Court reviews convictions for both felony murder and the underlying felony, we sustain the murder conviction and vacate the underlying felony conviction.18 Lambert argues that the underlying felony convictions are final and the State cannot now exact a punishment for felony murder based on the same underlying felony. Lambert contends that to cure the "double punishment" problem

984 P.2d 229
here we must set aside the felony-murder convictions rather than the underlying felony convictions.

¶ 14 The Court in ...

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19 practice notes
  • Young v. State, No. F-98-703.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 6, 2000
    ...addressed and rejected by this Court and we hereby decline to revisit those claims. See e.g. Lambert v. State, 1999 OK CR 17, ¶ 68, 984 P.2d 221, 239, cert. denied, 528 U.S. 1087, 120 S.Ct. 816, 145 L.Ed.2d 687 (2000)(trial court not required to define life without parole); Welch, 1998 OK C......
  • Ray v. State , CR–06–2143.
    • United States
    • Alabama Court of Criminal Appeals
    • May 13, 2011
    ...matter of trial strategy by counsel, and therefore, not generally an issue to be second-guessed on collateral review.”); Lambert v. State, 984 P.2d 221, 232 (Okla.Crim.App.1999) ( “[C]ounsel was not ineffective in failing to move for a change of venue.... The decision to not seek a change o......
  • Ray v. State Of Ala., No. CR-06-2143
    • United States
    • Alabama Court of Criminal Appeals
    • February 4, 2011
    ...of trial strategy by counsel, and therefore, not generally an issue to be second-guessed on collateral review."); Lambert v. State, 984 P.2d 221, 232 (Okla. Crim. App. 1999) ("[C]ounsel was not ineffective in failing to move for a change of venue.... The decision to not seek a cha......
  • Owens v. Addison, Case No. 12-CV-0117-CVE-FHM
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • April 30, 2013
    ...987 A.2d 1138, 1141 (D.C. Ct. App. 2010); Lemke v. Rayes, 141 P.3d 407, 415 (Ariz. Ct. App. 2006); Lambert v. State, 1999 OK CR 17, ¶ 9, 984 P.2d 221, 227. Owens was prosecuted in this trial for the exact same felony murder charge he was convicted of in the first trial -- felony murder of J......
  • Request a trial to view additional results
19 cases
  • Young v. State, No. F-98-703.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 6, 2000
    ...addressed and rejected by this Court and we hereby decline to revisit those claims. See e.g. Lambert v. State, 1999 OK CR 17, ¶ 68, 984 P.2d 221, 239, cert. denied, 528 U.S. 1087, 120 S.Ct. 816, 145 L.Ed.2d 687 (2000)(trial court not required to define life without parole); Welch, 1998 OK C......
  • Ray v. State , CR–06–2143.
    • United States
    • Alabama Court of Criminal Appeals
    • May 13, 2011
    ...matter of trial strategy by counsel, and therefore, not generally an issue to be second-guessed on collateral review.”); Lambert v. State, 984 P.2d 221, 232 (Okla.Crim.App.1999) ( “[C]ounsel was not ineffective in failing to move for a change of venue.... The decision to not seek a change o......
  • Ray v. State Of Ala., No. CR-06-2143
    • United States
    • Alabama Court of Criminal Appeals
    • February 4, 2011
    ...of trial strategy by counsel, and therefore, not generally an issue to be second-guessed on collateral review."); Lambert v. State, 984 P.2d 221, 232 (Okla. Crim. App. 1999) ("[C]ounsel was not ineffective in failing to move for a change of venue.... The decision to not seek a cha......
  • Owens v. Addison, Case No. 12-CV-0117-CVE-FHM
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • April 30, 2013
    ...987 A.2d 1138, 1141 (D.C. Ct. App. 2010); Lemke v. Rayes, 141 P.3d 407, 415 (Ariz. Ct. App. 2006); Lambert v. State, 1999 OK CR 17, ¶ 9, 984 P.2d 221, 227. Owens was prosecuted in this trial for the exact same felony murder charge he was convicted of in the first trial -- felony murder of J......
  • Request a trial to view additional results

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