State v. Lambert

• Decision Date: 26 January 1984
• Docket Number: No. 15952,15952
• Citation: 312 S.E.2d 31,173 W.Va. 60
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Debra LAMBERT.

Page 31

312 S.E.2d 31

173 W.Va. 60

STATE of West Virginia v. Debra LAMBERT.

No. 15952.

Supreme Court of Appeals of West Virginia.

Jan. 26, 1984.

Syllabus by the Court

"As a general rule, a trial court is under no duty to correct or amend an erroneous instruction, but where, in a criminal case, a defendant has requested an instruction, defective in some respect, on a pertinent point vital to his defense, not covered by any other charge, and which is supported by uncontradicted evidence; and because of the state of the evidence relied upon for conviction, and the peculiar facts and circumstances of the case, a failure to instruct on this important point, may work a miscarriage of justice, it is error for the trial court not to correct the instruction and give it in proper form." Syl., State v. Brown, 107 W.Va. 60, 146 S.E. 887 (1929).

Douglass & Douglass, Ernest M. Douglass, Parkersburg, for appellant.

Harry G. Deitzler, Pros. Atty., Richard M. Richmond, Asst. Pros. Atty., Parkersburg, for appellee.

McGRAW, Justice:

The appellant, Debra Lambert, appeals from a conviction of welfare fraud rendered against her by a jury in the Circuit Court of Wood County. The appellant was sentenced to an indeterminate term of from one to five years. Execution of her sentence, however, was suspended, and she was placed on three years probation. Although the appellant raises several assignments of error, we find one to be dispositive, and reverse solely on that point.

The evidence concerning the alleged welfare fraud was uncontroverted. On July 28, 1980, the appellant, accompanied by her husband, Vernon Lambert, applied for public assistance based upon their mutual unemployment at the Department of Welfare Office in Parkersburg. Based upon this application, the Lamberts were found to be eligible for Aid to Families with Dependent Children and food stamps. The Lamberts were informed at the time of their application that any change in their employment, income, or other status was to be reported to the Department of Welfare.

The appellant's husband became employed on December 18, 1980, earning $391.96 to $644.89 monthly between January and July 1981. Neither the appellant nor her husband reported this employment and resultant income to the Department of Welfare. Consequently, they continued to receive benefits totaling $387.00 per month until July 1981, when their case worker at the Department of Welfare received an anonymous telephone call informing her of Mr. Lambert's employment.

On April 12, 1982, a Wood County grand jury returned a six count indictment against the appellant and her husband for welfare fraud. Upon the appellant's motion, her case was severed from that of her husband, who plead guilty to a misdemeanor pursuant to a plea bargaining agreement. The appellant's trial began on May 19, 1982, and on the following day, she was found guilty of fraudulently obtaining welfare assistance in excess of five hundred dollars in violation of West Virginia Code § 9-5-4 (1976). ¹

The appellant's sole defense went to criminal intent. She chronicled a history of violence directed against her by her husband. Prior to their marriage, while the appellant was pregnant with Vernon Lambert's child, she testified that he came home drunk one night in a rage because she had unsuccessfully attempted to locate him in a local tavern. She stated that,

Vernon came in drunk and he pulled me out of bed and he just threw me out of bed and started calling me some names and he took me and threw me back into the front room and got his gun and loaded it and put it to my head and said he was going to blow my head off. He said I had no right to check up on him and he took the gun and shot it out the window and shot it to prove to me that the gun was loaded.

After their marriage, their relationship continued to be marred by Vernon Lambert's violent acts toward the appellant. On one occasion the appellant desired medical attention after one of his beatings, but he refused to allow her to leave. She testified that, as a general rule, her husband prevented her from leaving the house alone and forced her to accompany him to his place of employment when he was working in order to keep an eye on her. Although the appellant did not report her husband's behavior to the Department of Welfare or to the police, her testimony concerning his physical abuse was corroborated by her grandmother, with whom she frequently sought shelter, and by her former sister-in-law, who witnessed Vernon Lambert's physical abuse of the appellant on several occasions.

In addition to acts of physical abuse which were unrelated to the appellant's professed desire to report her husband's employment to the Department of Welfare, the appellant also related other incidents in which the communication of that desire resulted in verbal and physical abuse by her husband. The appellant testified that on December 18, 1980, the day her husband returned to work,

Vernon came in ... and said that he got the job at Winans and I said that's great, now we can get off welfare. Vernon looked at me and he pointed his finger at me and he said, you keep your mouth shut, what the welfare doesn't know won't hurt them, just keep your mouth shut.

This testimony was corroborated by the appellant's grandmother, who was present during this conversation. The appellant also described several other incidents in which her husband abused her after she indicated a desire to inform the Department of Welfare of his employment. The appellant's testimony concerning these incidents was corroborated by the appellant's former sister-in-law. In describing why she did not report her husband's violent behavior to the authorities, the appellant stated, "I was afraid to tell anyone because if Vernon ever found out that I was telling anyone, he would have beat me to death."

Recently, in Syllabus Point 1 of State v. Tanner, 301 S.E.2d 160 (W.Va.1982), this Court analyzed the effect of compulsion, coercion, or duress upon criminal intent, stating:

In general, an act that would otherwise be a crime may be excused if it was done under compulsion or duress, because there is then no criminal intent. The compulsion or coercion that will excuse an otherwise criminal act must be present, imminent, and impending, and such as would induce a well-grounded apprehension of death or serious bodily harm if the criminal act is not done; it must be continuous; and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough.

Tanner's primary defense to his two convictions of aggravated robbery was that he had been coerced into committing the crimes while in a highly intoxicated mental state. The trial court, however, rejected Tanner's two proposed...