Lambert v. State

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

Lambert appeals and assigns the following as error:

(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 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.

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.

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(l)(e) (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 less than capital. Therefore, the constituent offense allegation becomes immaterial.

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.

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 Highway Patrol, but Marks could not recall the technician’s name that initially received it from him.

The question, as to exhibits S-18 and S-22, is whether the failure of the State to produce as witnesses all of the parties who handled the evidence renders the evidence inadmissible.

This issue has been addressed repeatedly by this Court, and the law is settled. Introduction of demonstrative evidence without preliminary proof of its condition from the time of seizure until the time of examination by an expert witness is a matter for determination within the sound discretion of the trial court. Wright v. State, 236 So.2d 408, 409 (Miss.1970). This Court will not reverse the trial court’s ruling except where this discretion has been “so abused as to be prejudicial to the defendant.” Id.

In Grady v. State, 274 So.2d 141 (Miss.1973), this Court stated that the test is “whether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” 274 So.2d at 143.

Notwithstanding a “break” in the chain of custody, in Nix v. State, 276 So.2d 652 (Miss.1973), this Court held that the admissibility of evidence was:

(W)ithin the sound discretion of the trial judge, and unless this judicial discretion has been so abused as to be prejudicial to the defendant, this Court will not reverse the rulings of the trial court. Wright v. State, 236 So.2d 408 (Miss.1970). See also Gallego v. United States, 276 F.2d 914 (C.C.A. 9th, 1960). The test is whether or not there is an indication of probable tampering with the evidence. Stunson v. Florida, 228 So.2d 294 (Fla.App.1969). In such matters the presumption of regularity supports the official acts of public officers. Gallego v. United States, supra.

276 So.2d at 653. See also Morris v. State, 436 So.2d 1381, 1382 (Miss.1983). Based on the above authorities, the failure of the State in the case at bar to produce the actual crime lab employees who received exhibits S-18 and S-22 does not render the evidence inadmissible.

B. RELEVANCY

The appellant further argues that the prejudicial value of the challenged previously scientific evidence outweighs any probative value the evidence might have. The argument here is simply that the existence of pubic hair in and around the body of the victim does no more than establish a fact not in dispute, that is that the defendant was next to the body of the deceased for some period of time. Moreover, appellant urges that due to its inflammatory nature this evidence is highly likely to arouse the prejudice of the jury.

The determination of relevancy is left to the sound discretion of the trial judge whose determination will not be reversed in the absence of clear abuse. McNeil v. State, 308 So.2d 236, 241-242 (Miss.1975). Given the theory of sexual battery upon which the State relied, this Court cannot conclude that such evidence had no probative value or that admission of the hairs found on and around the victim constituted a clear abuse of discretion.

C. SUFFICIENCY

In addition to moving for a directed verdict at the conclusion of the State’s case, the sufficiency of the evidence presented by the State was attacked at the conclusion of all proof by motion for a new trial, thereby preserving the alleged error of the trial court. Rainer v. State, 438 So.2d 290 (Miss.1983).

On appeal, this Court when reviewing the sufficiency of evidence to support a verdict, must consider the evidence in the light most favorable to the State. Brady v. State, 425 So.2d 1347 (Miss.1983). All evidence supporting or tending to support the verdict, as well as all reasonable inferences that may be drawn from the evidence, must be accepted as true. Id.

In the State’s favor, the defendant’s body was found beside the deceased. Additionally, the analysis of pubic hair removed from the body of the decedent is affirmative. The testimony of fiber identification specialist Joe Andrews lends support to the State’s theory of sexual battery. Andrews’ testimony did not entirely exclude a hypothesis of innocence; however, in that some of the hairs could not be matched with either the known samples of the decedent or those of the appellant. Moreover, the defense offered a plausible explanation for the presence of appellant’s hair in the vicinity of the decedent since testimony established that the body had been moved several times for the purpose of taking photographs and the victim’s mouth was open.

In the defense’s favor, there was expert testimony that none of the fluids ordinarily associated with sexual contact were found in the victim.

No murder weapon was found and the absence of bruises on the appellant’s hands while not conclusive, is at least consistent with the defense’s hypothesis of innocence.

In the case at bar, the State concedes that the case against the appellant rests upon circumstantial evidence. This Court has stated that circumstantial evidence:

Is always insufficient where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth. Whenever, therefore, the evidence leaves it indifferent, which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.

Sorrells v. State, 130 Miss. 300, 94 So. 209 (1922).

The question then is whether the State’s circumstantial case was such as to exclude the defense’s hypothesis of innocence. The defense relies upon Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), which held that:

... (W)here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

165 Miss, at 209, 147 So. at 482.

Lambert’s explanation of his whereabouts on the preceding night in question was largely corroborated up until 3:00 a.m. on the morning of the murder. The testimony regarding the alcohol content in Lambert’s blood at around noon the following morning is consistent with the defense’s theory that Lambert was in an advanced state of intoxication and, in all likelihood, was unconscious. The defendant had no version due to his intoxication. The only other defense proof offered to the jury supporting Lambert’s theory that he was placed in Mrs. Trigg’s bedroom by some unknown person or persons was Ricky Cook, a friend of Lambert. He testified to such a version in general terms. But the defense objected to the introduction of his written statement to the jury because of its bizarre content. In fact the defense even challenged the credibility of Cook’s testimony by their delving into his being “possessed” through hypnosis to make the written statement. Therefore, the record is absent of any credible eyewitness evidence to the homicide that give a basis for reliance on the Weathersby rule. Additionally, the scientific evidence supported the State’s theory.

This Court concludes that this evidence presented is legally sufficient to support the jury’s verdict. No error is noted in this assignment.

Likewise, this same reasoning would apply to the assignment of error relating to the court’s refusal to direct a verdict of not guilty.

IV.

THE MANSLAUGHTER INSTRUCTION

Appellant assigns as error the granting of a manslaughter instruction on the ground that it invited the jury to find the appellant guilty of a lesser included offense in the event that they could not otherwise agree upon a verdict. Relying primarily on Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the appellant contends that the granting of the lesser included offense instruction denied him due process of law.

The responsive verdict procedure condemned in Roberts v. Louisiana, differed decidedly from the case here. The legislative scheme in Roberts provided for four mandatory responsive verdicts and required that the jury be instructed on all of the verdicts whether or not raised by the evidence. 428 U.S. 330, 96 S.Ct. 3004. Moreover, the statute made the death penalty mandatory whenever the jury found a defendant guilty of first degree murder.

The procedure employed in the case at bar is clearly distinguishable. Mississippi statutory scheme does not require the death penalty upon conviction of capital murder. Miss.Code Ann. § 99-19-101 (Supp.1983). Furthermore, unlike the Louisiana statute, the instruction as to a lesser included offense is not mandatory and such an instruction may be given only when justified by the evidence. Presley v. State, 321 So.2d 309, 310-311 (Miss.1975). Finally, in the case at bar the trial court expressly admonished the jury not to compromise their verdict in its instruction as to the requirements for a finding of guilty of manslaughter, as follows:

If warranted by the evidence you may find the defendant, Gary Dean Lambert, guilty of a crime lesser than capital murder. However, notwithstanding this right, it is your duty to accept the law as given you by the Court, and if the facts and the law warrant a conviction of the crime of capital murder, then it is your duty to make such a finding uninfluenced by your power to fix a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime.

Also, the inclusion of these instructions on the issues of non-capital murder and manslaughter is not made for the purpose of suggesting that you should compromise your position and vote guilty as to a lesser offense merely to reach a unanimous verdict.

This Court reviewed the practice of instructing the jury with reference to lesser included offenses in light of the Supreme Court decision in Roberts. This Court concluded:

We therefore hold that, when warranted by the evidence, the trial court may instruct the jury with reference to lesser included offenses. However, such an instruction should not be indiscriminately or automatically given, as was condemned in Roberts, supra, 428 U.S. at 335, 96 S.Ct. at 3007, 49 L.Ed.2d at 982, but should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence.

Jackson v. State, 337 So.2d 1242, 1255 (Miss.1976). The question then in the case at bar is whether the manslaughter instruction was warranted by the evidence. Mississippi Code Annotated section 97-3-35 (1972) defines manslaughter as “the killing of a human being without malice in the heat of passion but in a cruel or unusual manner or by the use of a dangerous weapon without authority of law and not in necessary self-defense.” From a totality of all the proof, we conclude the manslaughter instruction was justified. We find no error in this assignment.

V.

INEFFECTIVE ASSISTANCE OF COUNSEL

Lambert argues in his supplemental brief pro se that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution. Lambert directs this Court’s attention to the failure of his attorney at trial to object to testimony involving the defendant’s prior involvement with narcotics, as reflected in the following excerpts from the record.

I. CROSS EXAMINATION OF STATE WITNESS, HAROLD MARX, AN INVESTIGATOR.

Q. BY MR. BUCKLEY: (Defense Counsel) Do you know a Mr. Charles Neal Hughes?

A. BY MR. MARX: I believe I do.... He lives in close proximity to Mrs. Trigg’s home and we’ve had dealings with him in law enforcement circles before due to his activities_ My intentions in discussing the matter with him was that — I don’t want to blacken his name or anything here, but it was alleged that he deals in narcotics at some times and to see if perhaps he were (sic) familiar with Mr. Lambert and maybe that was why Mr. Lambert was in the area.

LATER ON:

A. BY MR. MARX: On one in the— that I had interviewed had mentioned Mr. Charles Hughes. The only reason I was looking for him at all was searching for an explanation of why Mr. Lambert could have been in the area. Mr. Lambert, by his own admission, participated in some drug activity. Mr. Hughes participates in drug activity. I was trying to find out if maybe Mr. Lambert was looking for Mr. Hughes’ house was why he would have been in that area.

II. CROSS EXAMINATION OF DEFENSE WITNESS, CARL WAYNE LAMBERT, GARY”S BROTHER.

Q. BY MR. EVANS: (District Attorney) Did he (the defendant) tell you about what he had told investigator Marx?

A. I’m unaware of what he told her, sir.

Q. Did your brother tell you that he told Mr. Marx that some years ago he was running dope for some people and they might have framed him?

A. No, sir.

III. CROSS EXAMINATION OF DEFENDANT, GARY DEAN LAMBERT.

Q. BY MR. EVANS: (District Attorney) And at that point you told him about this business about you having been a drug runner for these people, is that correct?

A. No—I made a remark to Mr. Marx that back when I was in my teens a gentleman asked me to give a—bring a package to a certain place and I—apparently I—I—I didn’t know what it was. I assumed what it was, but I did not look and see what it was, and then when I did I started bringing the package to this gentleman and when I did I didn’t come to a complete stop at a stop sign and an officer flipped his lights on later on as I went down the road and I threw the packages out, assuming that it was some drugs.

Q. What else did you tell Mr. Marx about that?

A. That was all.

It is well established that the Sixth Amendment right to counsel includes “the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, n. 14, 25 L.Ed.2d 763 (1970); Stewart v. State, 229 So.2d 53, 56 (Miss.1969), quoting Makenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960).

The issue of ineffective assistance of counsel may be raised by a convicted defendant on direct appeal. Read v. State, 430 So.2d 832, 841 (Miss.1983).

In the absence of any standard of review from the United States Supreme Court on the question of counsel ineffectiveness, this Court adopted a test to be applied. Callahan v. State, 426 So.2d 801 (Miss.1983). However, the United States Supreme Court has now addressed this issue in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our decisions since that date have followed the federal standard in application of the Sixth Amendment right. Stringer v. State, 454 So.2d 468 (1984), Thames v. State, 454 So.2d 486 (1984).

In Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth the test by which a claim of ineffective assistance of counsel should be measured. The Court held that, in order to justify a finding of ineffective assistance of counsel, the defendant must prove: (1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced the defense. — U.S. at -, 104 S.Ct. at 2063.

The Court set forth a number of guidelines for evaluating counsel performance. The standard employed is that of reasonably effective assistance. Id. at -, 104 S.Ct. at 2063. Counsel’s performance is to be judged in light of “prevailing professional norm,” taking into account “all the circumstances”. Id. at -, 104 S.Ct. at 2065. Moreover, the alleged deficiencies must be judged as of the time of counsel’s conduct. Id. As the Court noted:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

— U.S. at -, 104 S.Ct. at 2065.

In order to meet the second prong of the test—prejudice to the defense—the defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” — U.S. at -, 104 S.Ct. at 2068. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.

The Court noted that: “a verdict or conclusion only weakly supported by the record, is more likely to have been affected by errors than one with overwhelming record support.” Id.

Applying the Strickland test to the case at bar, this Court must first inquire whether defense counsel’s performance was in fact deficient. Lambert relies heavily on this Court’s holding in Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950). In Brooks the defendant was charged with assault and battery with the intent to kill. On cross-examination the prosecution asked, “This place of business you run is a bootlegging establishment, isn’t it?” Defense counsel failed to object to the question. Reviewing the conviction, this Court noted that not a single objection was made by the attorney during the trial.' This Court reversed the conviction on the ground that it had been procured by the introduction of inadmissible evidence which was obtained in violation of the defendant’s fundamental rights. Id. 46 So.2d at 96.

The case at bar is distinguishable from Brooks on two grounds. First, unlike Brooks, where the record did not reflect a single objection by the defense attorney, in the case at bar the record is replete with defense objections. Secondly, the line of questioning in the case at bar arose out of statements made by the defendant himself to the authorities following his arrest. Lambert candidly acknowledges in his brief that “there was nothing (the attorney) could do about the fact that Gary made various statements to the authorities after his arrest that adversely reflected upon his character and portrayed him as having personal habits which are not readily acceptable to the mainstream of our society.”

Examining the one example of alleged counsel deficiency in light of the entire record and bearing in mind the deferential Strickland guidelines, this court concludes that the appellant has failed to meet the first prong of the Strickland test.

We find no reversible error in this record.

Noting that there is an equal division of the court in the vote on this appeal with four judges voting to affirm, four judges voting to reverse, and one judge not participating, the judgment of the trial court is affirmed.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, J., concur.

DAN M. LEE, HAWKINS and SULLIVAN, JJ., dissent.

ROBERTSON, J., concurs in part and dissents in part (SULLIVAN, J., joins in dissenting portion).

PATTERSON, C.J., not participating.