The State sought the death penalty, alleging one aggravating circumstance that would render
Lambert eligible for the sentence: Officer Winters had been acting in
the course of duty when Lambert shot him. See I.C. § 35-50-2-9(b)(6).
The jury unanimously recommended the death penalty. The trial court followed
the jurys recommendation and sentenced Lambert to death.
Lamberts conviction was affirmed on direct appeal in Lambert v. State, 643 N.E.2d
349 (Ind. 1994). On rehearing, we agreed with Lambert that the jury
should not have heard certain evidence about the impact Officer Winterss death had
had on his family and co-workers, but we exercised our authority to review
and revise sentences and affirmed the death sentence for Lambert. Lambert v.
State, 675 N.E.2d 1060, 1066 (Ind. 1996), cert. denied, 520 U.S. 1255 (1997).
The trial courts judgment denying collateral relief was affirmed on appeal in
Lambert v. State, 743 N.E.2d 719 Ind. 2001), rehg denied (2001), cert. denied,
534 U.S. 1136 (2002). Lambert then sought relief in the federal
courts. The district court denied his petition for writ of habeas corpus
in Lambert v. Davis, No. IP 01-864-C-M/S, unpublished order (S.D. Ind. Dec. 4,
2002). The Seventh Circuit Court of Appeals affirmed in Lambert v. McBride,
365 F.3d 557 (7th Cir. 2004), rehg and rehg en banc denied, cert.
denied, 543 U.S. ___, 125 S.Ct. 669 (2004).
Lambert has thus completed the review of the conviction and sentence to which
he is entitled as a matter of right.
By counsel, Lambert has now filed a Tender of Successive Petition For Post-Conviction
Relief (Capital Case) and has submitted a proposed Petition For Post-Conviction Relief.
The State filed its Verified Response in Opposition to Tender of Successive Petition
for Post-Conviction Relief and Lambert was allowed to file Petitioners Reply to the
States Verified Response in Opposition to Tender of Successive Petition For Post-Conviction Relief.
In these papers, Lambert requests permission to litigate the question whether his
death sentence should be vacated.
We have jurisdiction because Lambert is sentenced to death. See Ind. Appellate
To litigate another or successive post-conviction claim, Lambert needs our authorization. We
will authorize the proceeding to go forward if the petitioner establishes a reasonable
possibility that the petitioner is entitled to post-conviction relief. P-C.R. 1 §
12(b). In deciding whether a petitioner has made the required showing, we
consider the applicable law, the petition and materials from the petitioners prior appeals
and post-conviction proceedings including the record, briefs and court decisions, and any other
material we deem relevant. Id.
On rehearing in the direct appeal, we agreed with Lambert that the jury
should not have heard the victim impact evidence during the penalty phase of
the trial, and we agreed with him that the error was not harmless.
See Lambert v. State, 675 N.E.2d at 1064-65 (Because the majority of
the victim impact testimony given was irrelevant to the charged aggravator, it was
improper and should not have been admitted.). We reached a conclusion different
than Lambert advocated, however, on the proper remedy for the error.
As we explained, where we find an irregularity in a death sentence, we
may (1) remand to the trial court for a new sentencing determination, (2)
affirm the death sentence if the error is harmless beyond a reasonable
doubt, or (3) use our appellate authority to independently reweigh the proper aggravating
and mitigating circumstances. Id. at 1065 (citing Bivins v. State, 642 N.E.2d 928,
957 (Ind. 1994), cert. denied, 516 U.S. 1077 (1996).
In Lamberts case, we selected the third option. We reviewed the properly
admitted evidence concerning the aggravating and mitigating circumstances, concluded the aggravating circumstance outweighed
the mitigating ones, and affirmed the trial courts death sentence. See Lambert,
675 N.E.2d at 1065-66.
Lambert claims that our appellate reweighing either did not cure the error or
is not a valid remedy, see Tender at ¶5, but he cites no
authority for either proposition and his claim has been rejected throughout the review
process. In the post-conviction appeal, we specifically addressed and rejected Lamberts arguments
with respect to our states constitution, and noted the procedure had been employed
in other capital cases. Lambert v. State, 675 N.E.2d at
727 (citing Matheney v. State, 688 N.E.2d 883, 909-10 (Ind. 1997), cert.
denied, 525 U.S. 1148 (1999); Bivins, 642 N.E.2d at 957)). We also
considered and rejected Lamberts arguments with respect to the federal Constitution. Lambert,
675 N.E.2d at 727. Similarly, the federal courts found no error under
the U.S. Constitution. See, e.g, Lambert v. McBride, 365 F.3d at 561-63.
Lambert now argues that our resentencing conflicts with Saylor v. State, 808 N.E.2d
646 (Ind. 2004), a case we decided after his. The circumstances
in the two cases are different, however, and we are not persuaded Saylor
establishes any reasonable possibility that Lambert is entitled to relief. Saylor had
been sentenced to death for a 1992 murder despite his jurys unanimous recommendation
against a death sentence. Then in 2002, Indianas death penalty statute was
amended and no longer allows a person to be sentenced to death if
the jury unanimously recommended against it. See I.C. § 35-50-2-9(e) (2004).
We revised Saylors death sentence to a term of years after concluding it
was not appropriate to execute a person who was convicted and sentenced through
a procedure that has now been substantially revised so the same trial today
would no longer render the defendant eligible for the death penalty. 808
N.E.2d at 647.
The circumstances for Lambert are different. His is not a situation where
the jury unanimously recommended against the death sentence. There is no suggestion
the aggravating circumstanceOfficer Winters was acting in the course of duty when Lambert
shot himwas not proved beyond a reasonable doubt, which, in any event, we
infer from the jurys unanimous recommendation. Barker v. State, 809 N.E.2d 312,
316 n.2 (Ind. 2004) (citing Saylor v. State, 765 N.E.2d 535, 574 (Ind.
2002) (Sullivan, J., concurring and dissenting) ([W]hen a jury recommends a sentence of
death or life without parole, it has by definition made the predicate determination
of death eligibility required by Apprendi.)). As such, Lambert would be eligible
for the death penalty today. Id. Finally, neither Saylor nor the
2002 amendments to the death penalty statute affect, in any way relevant to
Lamberts case, our constitutional authority to review or revise sentences or the appropriate
remedies for erroneous admission of evidence.
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion.
Rucker, J., dissents with opinion.
Boehm, J., dissenting.
I agree with Justice Rucker that we should allow Lambert to present his petition for post-conviction relief, but I reach that conclusion for somewhat different reasons. As I see it this case does not turn on federal constitutional developments, notably the requirement first announced in Apprendi v. New Jersey that a jury find all facts necessary to the judgment. Rather, it presents a variation on the theme first addressed in Saylor v. State, 808 N.E.2d 646 (Ind. 2004). In Saylor we held that a death penalty imposed under the prior version of the Indiana death penalty statute should be revisited if it was imposed as a result of a procedure that could not lead to a death sentence under current law. Specifically, the jury in Saylors case recommended against death, but the trial judge, as was permitted at the time but is not permitted under current law, nevertheless imposed a death sentence. We held, as a matter of state law, under those circumstances we should exercise our power under Article VII of the Indiana Constitution to review and revise that sentence. Here we do not have a jury recommendation against death. Rather we have a jury recommendation that was held to be the product of inadmissible and potentially prejudicial evidence. Lambert v. State, 675 N.E.2d 1060, 1064 (Ind. 1996). As Justice Rucker points out, that is the functional equivalent of no jury recommendation. The issue, then, is what the consequence of a lack of a jury recommendation should be. I believe that is an issue resolvable under Indiana law without regard to Apprendi and its progeny.
In 1996 we unanimously held that the penalty phase of Lamberts trial was flawed and the error was not harmless because it may have contributed to the jurys recommendation in favor of the death penalty. A majority of this Court concluded that as a result of this error, this Court should review and revise Lamberts sentence. In 1996, Indianas death penalty statute allowed the court to assess the death penalty, even if the jury recommended against death. I dissented at that time, contending that this Court should not independently assess the death penalty when we could not know what the jury would have recommended if the penalty phase were not tainted, and we could not know what the trial judge would have done if the jury had not recommended death. Accordingly, I concluded that a remand for a new sentencing hearing was required. The same reasoning applies today. We have a flawed jury recommendation, and therefore do not know whether, without the erroneously introduced evidence, the jury would have recommended death, as it did in Lamberts case, or recommended against death, as it did in Saylors.
I do not agree with the majoritys claim that Lambert would be eligible
for the death penalty today. In 2002, the General Assembly amended Indianas
death penalty statute. The current death penalty statute provides that a trial
judge may impose the death penalty only if the jury has recommended that
sentence or if the jury is unable to recommend a sentence. Ind.
Code § 35-50-2-9 (2004). A trial court is no longer permitted to
impose the death penalty when the jury recommends against it. In view
of the jury verdict convicting Lambert of killing a law enforcement officer, the
majority is presumably correct that there is no
Apprendi/Ring bar to the death
penalty. But I believe the death sentence in this case would be
defective as a matter of Indiana state law if Lamberts trial had been
conducted under the current Indiana statute. The trial court is precluded from
imposing death without a proper jury recommendation in favor of the death penalty
or the jurys inability to agree. I.C. § 35-50-2-9. Because of
the acknowledged material error in the sentencing phase, we cannot know whether either
of those conditions is met. This Court has the authority to review
and revise sentences, but only within the parameters of the sentencing statutes.
If this were a direct appeal from a trial conducted under the 2002
law, we therefore could not revise the sentence to impose death. We
thus are faced with a situation very similar to that in Saylor.
We have a defendant sentenced to death through a procedure that that would
be improper today. Accordingly, Lamberts case, like Saylors, is not appropriate for
death under the current death penalty statute. I would let Lambert proceed
to test his claim that a proper penalty phase would provide a recommendation
As the Seventh Circuit observed in affirming the denial of Lamberts habeas corpus
Lambert v. McBride, 365 F.3d 557, 563 (7th Cir 2004), I concurred
in this Courts subsequent affirmance of the denial of post-conviction relief. Lambert
v. State, 743 N.E.2d 719 (Ind. 2001). I did so not because
I had reached a different conclusion as to whether this Courts 1996 revision
of Lamberts sentence was the correct result. Rather, I merely deferred to
the stare decisis effect of the majoritys view that appellate reweighing could properly
result in a death sentence. Now, however, in light of the 2002
amendments to Indianas death penalty statute, we have a development that in my
view puts the appropriateness of that action in question.
Rucker, J., dissenting
Michael Allen Lambert seeks authorization to file a successive petition for post-conviction relief in order to litigate his claim that this Courts opinion in Saylor v. State, 808 N.E.2d 646 (Ind. 2004), entitles him to relief. I would grant the petition. Therefore I dissent.
A jury convicted Lambert of murder and the trial court sentenced him to
death. This court affirmed Lamberts conviction and sentence on direct appeal.
See Lambert, 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
the sentencing phase of trial, but this court upheld Lamberts death sentence after
independently reweighing the aggravating and mitigating circumstances. See Lambert, 675 N.E.2d 1060
(Ind. 1996), cert. denied, 520 U.S. 1255 (1997). Lambert later petitioned for
post-conviction relief, which the post-conviction court denied. We affirmed the denial.
See Lambert, 743 N.E.2d 719 (Ind. 2001), cert. denied, 534 U.S. 1136 (2002).
Lambert now seeks permission to file a successive petition for post-conviction relief.
The jury recommended the death penalty, the trial court followed the jurys recommendation,
and we affirmed. However the nagging and unanswered question is whether, absent
the victim impact testimony, the jury would have returned a recommendation of death.
No one can say one way or the other with any certainty.
We do know that the inadmissible testimony consumed some twenty-nine pages of
transcript, was highly emotional, and even inspired this court to observe, [i]ndeed, the
testimony of Molly Winters about her husband and hero easily moves one to
tears. Id. at 1065 n.3. With this knowledge the Court declared:
We cannot say with any degree of confidence that the jury remained uninfluenced by this testimony. Nor can we say with assurance that the substantial rights of Lambert were not affected. Therefore, we must hold that the error in admitting the victim impact testimony was not harmless error.
Id. Precisely because we cannot say with any degree of confidence that the jury remained uninfluenced by [victim impact] testimony, and that the error in admitting the testimony was not harmless, I am compelled to conclude that what we have here is the functional equivalent of no jury recommendation at all. Stated somewhat differently, it is impossible to know with any assurance whether the jury found the existence of the aggravating circumstance beyond a reasonable doubt, or that the jury determined that the existence of the aggravating circumstance outweighed any mitigating circumstance or circumstances.
The Sixth Amendment requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Ring v. Arizona, made it clear that Apprendi applies to capital sentencing schemes. 536 U.S. 584, 589. Here, Lamberts death sentence was based on facts extending the sentence beyond the maximum authorized by the jurys verdict finding him guilty of murder. But in effect there was no determination that the qualifying aggravating circumstance was proven beyond a reasonable doubt. If Lambert were before us on direct appeal, it is clear that his death sentence would violate the federal constitution. See Bostick v. State, 773 N.E.2d 266, 273 (Ind. 2002) (holding Apprendi and Ring were violated by sentence imposed under Indianas capital sentencing statute without a jury determination that the qualifying aggravating circumstances were proven beyond a reasonable doubt).
As the seventh circuit noted, the procedure followed in this case is called
into serious question by
Ring . Lambert v. McBride, 365 F.3d 557,
563 (7th Cir. 2004), cert. denied, 125 S.Ct. 669 (2004). However, the
circuit court expressly held that Ring was not retroactive. Id. at 562.
More recently the Supreme Court has spoken on the issue and also
has held that Ring is an application of the procedural rule announced in
Apprendi, and as such does not apply retroactively to cases already final on
direct review. Schriro v. Summerlin, 124 S.Ct. 2519, 2522-26 (2004). But
that is not the end of the analysis. This Court has addressed
previously the propriety of affirming a death sentence under circumstances analogous to those
The trial court sentenced Benny Saylor to death for a 1992 murder despite
a unanimous jury recommendation against the death penalty. At the time, the
jurys death penalty recommendation was advisory only and thus not binding on the
trial court. Indianas capital sentencing statute was amended in 2002 to provide
in part, [i]f the jury reaches a sentencing recommendation, the court shall sentence
the defendant accordingly. Ind. Code § 35-50-2-9(e). Recognizing that the legal
landscape had changed since Saylor was sentenced, we exercised our authority under Article
VII, Section 4 of the Indiana Constitution and concluded that Saylors death sentence
was inappropriate. In doing so we said, even if the Sixth Amendment
does not bar Saylors execution for a pre-
Ring crime, as a matter of
Indiana state law Saylor, if tried today, could not be sentenced to death
without a jury recommendation that death be imposed. Saylor, 808 N.E.2d at
It is true, as the majority points out, the jury in this case
did not unanimously recommend against the death sentence. Order at 3.
However, the reverse is equally true: the jury did not properly recommend in
favor of the death sentence. Before a jury can recommend the death
penalty, it must find that (1) the state has proved beyond a reasonable
doubt that at least one (1) of the aggravating circumstances listed in subsection
(b) exists; and (2) any mitigating circumstances that exist are outweighed by the
aggravating circumstance or circumstances. Ind. Code § 35-50-2-9(l) 2002. In this
case, the trial court as well as this court found the existence of
the aggravating circumstance: a police officer killed in the course of duty.
See I.C. § 35-50-2-9(b)(6). And certainly the record would seem to support
the existence of the aggravator. We cannot say, however, as a matter
of law that the jury made such a finding. In fact, but
for the improperly admitted testimony, given Lamberts age at the time of this
murder (twenty) and the fact that he was highly intoxicated (scoring .18 on
a breathalyzer test) it is conceivable that even had the jury found the
existence of the charged aggravating circumstance, the jury may very well have determined
that these two mitigating circumstances outweighed the sole aggravating circumstance and thus would
have recommended against the death penalty. It is also conceivable that even
finding that the aggravating circumstance outweighed the mitigating circumstances the jury may have
exercised its authority under Article 1, Section 19 of the Indiana Constitution and
recommended against the death penalty. See Bivins v. State, 642 N.E.2d 928,
946 (Ind. 1994) (commenting that because of Art. 1, § 19, a jury
in a criminal case is not bound to convict even in the face
of proof of guilt beyond a reasonable doubt); Pope v. State, 737 N.E.2d
374, 380 (Ind. 2000) (noting that even in the face of proof beyond
a reasonable doubt to the contrary, the jury nonetheless could have recommended against
life without parole either upon a finding that the State failed to prove
the statutory aggravator, or that the statutory aggravator outweighed any mitigating circumstances).
A judge is not free under the 2002 amended statute to impose a death sentence absent a jurys unanimous finding that the State has proved beyond a reasonable doubt the existence of at least one of the statutory aggravating circumstances. Under the amended statute, the trial court is required to provide a special verdict form for each aggravating circumstance alleged. Ind. Code § 35-50-2-9(d). As this Court has observed, [i]t is thus conceivable that a penalty phase jury could return a verdict finding one or more aggravators proven beyond a reasonable doubt, but be unable to reach unanimous agreement on whether any mitigating circumstances are outweighed by the aggravating circumstances. State v. Barker, 809 N.E.2d 312, 316 (Ind. 2004). Under those circumstances the trial court is authorized to discharge the jury and proceed as if the hearing had been to the court alone. Ind. Code § 25-50-2-9(f). Still, however, [i]n the event a penalty phase jury is unable to reach a unanimous decision as to the existence of aggravating circumstances,  Ring and Apprendi would prohibit the trial judge from proceeding under Subsection 9(f) and a new penalty phase trial would be required. Barker, 809 N.E.2d at 316 (citation omitted). Here, although the reasons differ slightly from those in Saylor, it is apparent to me that as a matter of Indiana statutory law, if tried today Lambert could not be sentenced to death under the facts presented in this case. And this is so because as a practical matter there has been no jury finding of the statutory aggravating circumstance.
I would therefore (1) grant Lamberts request to file a successive petition for
post conviction relief, (2) vacate his sentence of death based on the merits
of his claim, and (3) remand this cause to the trial court for
further proceedings. I would instruct the trial court that if the State
elects to dismiss its request for a death sentence, then the trial court
may proceed accordingly and resentence the defendant to a term of years as
authorized by Ind. Code § 35-50-2-3(a).See footnote
I would also instruct that if
the State proceeds with its death sentence request, then the trial court shall
convene a new penalty phase jury and conduct further proceedings pursuant to Indiana
Code § 35-50-2-9. See Bostick, 773 N.E.2d at 273-74.