                          IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 1999-CA-00395-SCT

GARY DEAN LAMBERT

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                 01/30/1999
TRIAL JUDGE:                                      HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED:                        COVINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                          KRISTY L. BENNETT
                                                  JOE M. RAGLAND
ATTORNEY FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                  BY: SCOTT STUART
DISTRICT ATTORNEY:                                EDDIE BOWEN
NATURE OF THE CASE:                               CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                                      AFFIRMED - 09/14/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        BEFORE COBB, P.J., CARLSON AND DICKINSON, JJ.

        DICKINSON, JUSTICE, FOR THE COURT:

¶1.     The indictment alleged the defendant committed a murder during the commission of

a burglary and was therefore guilty of capital murder.               However, the indictment failed to

disclose that the crime the defendant intended to commit after breaking and entering the

dwelling was sexual battery.      Although the defendant was convicted of simple murder, he now

seeks post-conviction relief due to the faulty capital murder indictment.                The question

presented is whether the deficient capital murder indictment prejudiced the defendant, such

that his conviction or sentence was actually adversely affected, thus requiring post-conviction

relief. We find that under the facts and circumstances of this case, it did not.
                         BACKGROUND FACTS AND PROCEEDINGS

¶2.     At 6:30 p.m. on January 15, 1982, Gary Dean Lambert went to Nick’s Ice House to

shoot pool and drink.     At midnight, Lambert left Nick’s to go to a party, where he smoked

marijuana and continued to drink.        At 2:30 a.m., he left the party.        Realizing he was too

intoxicated to continue driving, Lambert pulled into a gas station to call a friend to pick him

up. While at the gas station, Lambert saw Bob McClain, whom he had met earlier that night at

the party. McClain asked Lambert for a ride, and Lambert agreed to take him home, but he told

McClain to drive. Lambert claims he recalls nothing more of the events of that night.

¶3.     About 9:00 a.m. the next morning, Herschel and Edwin Trigg were informed that

something was wrong at their mother’s house.           The two discovered the badly beaten body of

their 86-year-old mother, Pearl Lott Trigg, lying in her bed, with Lambert sleeping partially

undressed next to her.     Lambert’s checkbook was discovered under Mrs. Trigg’s body, and

pubic hairs matching the characteristics of Lambert’s hairs were found lodged in Mrs. Trigg’s

larynx. An autopsy revealed Mrs. Trigg’s cause of death to be strangulation.

¶4.     Lambert was indicted for capital murder while engaged in the commission of the crime

of burglary. The indictment stated Lambert did

        wilfully, unlawfully, feloniously and of his malice aforethought without the
        authority of law kill and murder Pearl Lott Triggs [sic], 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 [sic], contrary to and in violation of section 97-3-
        19(2)(e) of the Miss. Code of 1972, Ann. as amended.




                                                   2
Although the indictment charged that burglary was the felony which elevated the crime to

capital murder, it did not specify the underlying offense that constituted the “intended crime”

element of the burglary.1

¶5.     On August 6, 1982, Lambert was convicted of simple murder and sentenced to life

imprisonment.    His conviction was affirmed by this Court on October 31, 1984.             Lambert v.

St at e, 462 So. 2d 308, 317 (Miss. 1984) (hereinafter Lambert I).                  For several years

thereafter, Lambert unsuccessfully pursued habeas corpus relief in the federal courts.              The

United States District Court’s denial of Lambert’s request for habeas relief was affirmed by

the United States Court of Appeals for the Fifth Circuit. Lambert v. Miss. Dep’t of Corrs.,

974 F.2d 1334 (5th Cir. 1992).         The United States Supreme Court later denied Lambert’s

petition for certiorari. Lambert v. Miss. Dep’t of Corrs., 507 U.S. 1020, 113 S. Ct. 1819, 123

L. Ed. 2d 449 (1993).

¶6.     On October 13, 1997, ten days before this Court handed down its decision in State v.

Berryhill, 703 So. 2d 250 (Miss. 1997),2 Lambert filed a pro se petition for post-conviction

relief, which this Court denied as time- barred pursuant to Miss. Code Ann. Section 99-39-5(2)

(Rev. 2000).

¶7.     In February 1998, with the assistance of counsel, Lambert filed another petition for

post-conviction relief urging us to recognize Berryhill as an intervening decision that entitled


        1
         The crime of burglary requires the breaking and entering of a dwelling with the intent to commit
some crime therein. Miss. Code Ann. § 97-17-23 (Rev. 2006).
        2
         The Berryhill Court held that capital murder indictments predicated on the underlying felony of
burglary must specifically name the intended crime that comprised an element of the burglary charge. 703
So. 2d at 255.

                                                   3
him to present his post- conviction relief claim to the trial court.      On July 2, 1998, this Court

granted Lambert’s motion and allowed him to proceed in the trial court with his application for

post-conviction relief.

¶8.     On November 18, 1998, Lambert filed his petition for post-conviction relief in the

Circuit Court of Covington County, Mississippi. The State opposed the motion on the grounds

that the three-year statute of limitations for presenting the motion had expired.      The trial court

refused to recognize Berryhill as an intervening decision, and it denied Lambert’s petition as

time-barred.    Lambert appealed, raising numerous issues including a demand for DNA testing

of the pubic hairs found in Mrs. Trigg’s larynx.

¶9.     On January 11, 2001, without deciding the question of whether Berryhill qualified as

an intervening decision, this Court remanded Lambert’s case to the trial court for DNA testing

of the pubic hairs taken from Mrs. Trigg’s throat. Lambert v. State, 777 So. 2d 45, 49 (Miss.

2001). We deferred addressing the other issues raised by Lambert, stating, “Lambert may wish

to bring these matters before this Court or a lower court at a later time, dependent upon the

proof obtained pursuant to our holding today.” Id.

¶10.    The DNA analysis, completed in December 2002, showed Lambert was the source of

the pubic hairs found in Mrs. Trigg’s larynx.            In January and February 2003, and in January

2004, Lambert filed motions requesting permission to file a supplemental brief in this matter.

These requests were denied.

¶11.    In October 2005, Lambert filed another petition for post-conviction relief.               On

December 15, 2005, this Court entered an order, stating:




                                                     4
        the Court finds that the issues raised in Lambert’s direct appeal should be finally
        decided by this Court. The Court further finds that the mandate in this matter
        was issued improperly and it should be recalled. The Court finds that the Orders
        entered by this Court on April 29, 2003 and January 23, 2004 should be vacated.
        The Court further finds that the parties in this matter should file supplemental
        briefs regarding the remaining issues in this appeal.

¶12.    There is but one issue3 for our consideration: whether the trial court erred in holding

that State v. Berryhill was not an intervening decision which would have adversely affected the

outcome of Lambert’s conviction or sentence.

                                              DISCUSSION

¶13.    Pursuant to Miss. Code Ann. Section 99-39-5(2), a motion for post-conviction relief

“shall be made within three (3) years after the time in which the prisoner’s direct appeal is

ruled upon by the Supreme Court of Mississippi . . . .” This Court decided Lambert’s direct

appeal in 1984, and Lambert first filed for post-conviction relief in 1997.               Therefore, unless

an exception to the time-limit applies, Lambert’s motion for post-conviction relief must be

denied as time-barred. The three- year statute of limitations does not bar post-conviction relief

where the prisoner can demonstrate “there has been an intervening decision of the Supreme

Court of either the State of Mississippi or the United States which would have actually

adversely affected the outcome of his conviction or sentence . . . .” Miss. Code Ann. § 99-39-

5(2).

¶14.    Finding that Lambert failed to meet his burden of proving by a preponderance of the

evidence that this exception to the time-bar applied, the trial court denied his petition. “When


        3
          Lambert does not raise two of the issues from his original appeal of the trial court’s denial of his
motion for post-conviction relief. As such, his claims for relief based on Ricky Cook’s statement and
ineffective assistance of counsel are procedurally barred. Nevertheless, we would affirm the trial court’s
denial of relief on both these issues.

                                                      5
reviewing a lower court’s decision to deny a petition for post conviction relief this Court will

not disturb the trial court’s factual findings unless they are found to be clearly erroneous.

However, where questions of law are raised the applicable standard of review is de novo.”

Brown v. State, 731 So. 2d 595, 598 (Miss. 1999) (citing Bank of Miss. v. S. Mem’l Park,

Inc., 677 So. 2d 186, 191 (Miss. 1996)).

        Whether the trial court erred in holding that State v. Berryhill was not an
        intervening decision which would have adversely affected the outcome of
        Lambert’s conviction or sentence.

        State v. Berryhill

¶15.    In Berryhill, this Court considered whether a capital murder indictment predicated upon

the underlying crime of burglary must specifically disclose the crime the defendant intended

to commit after breaking and entering the dwelling. 703 So. 2d at 251.           We held “that such

capital murder indictments must contain an allegation of the specific criminal intent that

constitutes an element of the burglary.” Id. at 251-52.

¶16.    In Berryhill, the defendant was indicted for capital murder while engaged in the

commission of a burglary.      Id. at 252.    Prior to trial, Berryhill moved to quash the indictment

because it did not specify the underlying offense comprising an element of the charged

burglary.   Id.    At the direction of the court, the State advised Berryhill that the felony

underlying the burglary count was intent to commit assault.        Id.   Four months later, the State

informed Berryhill that it might attempt to prove burglary based on kidnaping or attempt to

commit kidnaping, in addition to the intent to commit an assault. Id.




                                                    6
¶17.    The trial court ultimately quashed the capital portion of the indictment because it failed

to disclose the crime Berryhill intended to commit after breaking and entering the dwelling.

Id. However, the State was permitted to proceed on simple murder. Id.

¶18.    Thereafter, Berryhill pled guilty to simple murder and was sentenced to life without

parole. Id. The State appealed the trial court’s ruling on the capital murder indictment, seeking

a ruling from this Court on the requirements for capital murder indictments where the

underlying felony is burglary. Id. at 252-53.

¶19.    The Berryhill Court began its analysis by discussing this Court’s Lambert I opinion,4

wherein the four justices comprising the plurality declined to articulate a rule on whether

capital murder indictments should disclose the intended crime of the burglary.      Berryhill, 703

So. 2d at 254 (citing Lambert I, 462 So. 2d at 311). Since Lambert was only convicted of

simple murder, there was no need for the Court to determine the sufficiency of his capital

murder indictment, and the Court refused to comment on whether the indictment would have

been fatally defective had Lambert been convicted of capital murder.       Berryhill, 703 So. 2d

at 254-55 (citing Lambert I, 462 So. 2d at 311).

¶20.    The Berryhill Court then considered Justice Dan M. Lee’s dissent in Lambert I, which

pointed out that neither the defense nor the court knew the State was going to rely on the crime

of sexual battery as the basis of the burglary charge.    Berryhill, 703 So. 2d at 255 (citing

Lambert I, 462 So. 2d at 319 (Dan M. Lee, J., dissenting)). The dissent concluded that “since

the indictment provides the basis of the notice to the defendant of the crime for which he is


        4
         Lambert’s conviction and sentence were affirmed by this Court in a 4-4 decision. Lambert I,
462 So. 2d at 317.

                                                   7
to be tried, the failure to be informed of the nature of the crime underlying the burglary was

tantamount to the failure to allow a defendant to prepare a defense.” Id.5

¶21.    Following the reasoning advanced by the Lambert I dissent, the Berryhill Court held

that “capital murder indictments that are predicated on burglary are required to state the

underlying offense to the burglary.” Berryhill, 703 So. 2d at 255. The Court was concerned

with giving notice to a defendant of the charges against him and providing him with an

opportunity to prepare an effective defense.              Id. at 255-56.      According to the Court, a

defendant like Berryhill, who is indicted without notice of the crime the State alleges he

intended to commit during the burglary, could be forced to guess the theories the State might

present at trial and prepare defenses against all of them. Id. at 256. The Court noted, “[s]uch

‘trial by ambush’ is at odds with this Court’s jurisprudence on the need for an indictment to

give enough notice for a defendant to prepare a defense.” Id. Accordingly, the Court affirmed

the trial court’s decision to quash the capital portion of Berryhill’s indictment. Id. at 258.

        The trial court’s findings

¶22.    Here, the trial court concluded Berryhill was not an intervening decision that would

have adversely affected Lambert’s conviction or sentence.           Thus, it concluded that the Section

99-39-5(2) time-bar applied.

¶23.    The trial court rejected Lambert’s interpretation of Berryhill.               It acknowledged that

Berryhill stood for the proposition “that a capital murder indictment in which the underlying


        5
         While Justice James L. Robertson agreed with this portion of Justice Dan M. Lee’s dissent, he
also agreed with the plurality inasmuch as Lambert was only convicted of a simple murder charge, and that
crime was sufficiently alleged in the indictment. Berryhill, 703 So. 2d at 255 (citing Lambert I, 462 So.
2d at 322-23 (Robertson, J., concurring in part and dissenting in part)).

                                                      8
felony is burglary must also state the underlying crime for which the breaking and entering

occurred.” However, the trial court noted the Berryhill Court did not reverse a conviction for

simple murder because of deficiencies in the indictment.             That issue was not before the

Berryhill Court, because the defendant pled guilty to murder. The Court’s holding that capital

murder indictments predicated on burglary must specify the underlying offense could not have

actually adversely affected Lambert’s case because Lambert was never convicted of capital

murder. He was found guilty of simple murder, a conviction unrelated to the burglary charge,

regardless of the underlying intended crime.

        Berryhill’s effect on Lambert’s case

¶24.    In Berryhill, the capital murder portion of the defendant’s indictment was held deficient

because it did not specify the crime the defendant intended to commit after breaking and

entering the dwelling.    However, Lambert must do more than point to a holding in order to

prevail on his petition for post-conviction relief.     Under Section 99-39-5(2), the Court must

also consider whether the decision in Berryhill would have “actually adversely affected the

outcome of [Lambert’s] conviction or sentence.”

        1.      The capital murder portion of Lambert’s indictment

¶25.    Lambert acknowledges the Berryhill Court did not specifically hold that a capital

murder indictment which fails to specify the intended crime of the burglary charge is void

where the defendant is only convicted of murder.         However, Lambert argues that because the

defendant in Berryhill pled guilty to murder, the Court had no reason to address the issue.




                                                   9
¶26.       According to the State, Berryhill stands for the proposition that a capital murder

indictment which is insufficient to charge capital murder can still support a conviction of

murder less than capital.       In Berryhill, the defendant was convicted of simple murder after

entering a guilty plea, an appeal was taken, and the appeal left Berryhill’s murder conviction

intact.      Thus, the State claims Berryhill could not have actually adversely affected Lambert’s

conviction for simple murder or his sentence.

¶27.       Additionally, the specific wording of Lambert’s indictment survives any application of

Berryhill.      The first portion of Lambert’s indictment, standing alone, sufficiently charges him

with simple murder.        Miss. Code Ann. Section 99-7-37 states that an indictment for simple

murder is sufficient if it charges “that the defendant did feloniously, wilfully, and of his malice

aforethought, kill and murder the deceased.”        Lambert’s indictment charged that he “wilfully,

unlawfully, feloniously and of his malice aforethought kill and murder Pearl Lott Triggs [sic]

. . . .”

¶28.       The Court in Berryhill held that the trial court correctly quashed the defendant’s capital

murder indictment.      Had Berryhill been controlling precedent at the time of Lambert’s trial,

that case would only have required the trial court to quash the capital murder portion of his

indictment. Simply stated, we find that Berryhill does not require the reversal of a conviction

or sentence obtained under the non-capital portion of an indictment.       Based on the holding of

Berryhill alone, we cannot consider it an intervening decision that would have actually

adversely affected the outcome of Lambert’s conviction or sentence.




                                                  10
        2.      Lack of notice and corresponding prejudice

¶29.    Bolstered by language from Berryhill, Lambert argues that he was not given sufficient

notice of the charges against him and thus could not prepare an effective defense.       Lambert

claims he did not know the State would rely on sexual battery as the intended crime of the

burglary and, as such, he was unable to present an effective defense to the charges against him

as a whole.

¶30.    Lambert points to this passage in Justice Dan M. Lee’s dissent in Lambert I as

demonstrating Lambert’s lack of notice of the sexual battery offense:

                It is clear from the record that neither the defense counsel nor the trial
        judge knew that the state would be relying on sexual battery as the underlying
        crime for the allegation of burglary. This is evidence from a reading of a
        portion of the record which follows the defense counsel’s argument regarding
        a demurrer to the indictment. There the defense counsel argued that the simple
        breaking and entering into the house of Mrs. Triggs [sic] was not a burglary and
        that it could not be an underlying felony. At that point the district attorney
        interjected with the following which makes it clear that neither the defense nor
        the court knew that the prosecution was going to be relying on sexual battery as
        an underlying offense:

                BY MR. EVANS:
                       Judge, I know you don’t want to hear arguments now, but I want to
                point out, for the sake of the record, that Mr. Buckley has overlooked the
                elements of the crime of sexual battery altogether.

                BY MR. BUCKLEY:
                     What is the - I don’t understand the -

                BY THE COURT:
                        Well, he’s not charged with sexual battery.     He’s charged with
                burglary, isn’t he?

                BY MR. EVANS:
                        Yes, sir, burglary with the intent to commit sexual battery.
                Burglary, which is the breaking and entering with the intent to commit
                any crime.


                                                  11
                  BY THE COURT:
                          The motion will be overruled, but let me have that indictment,
                  please. (BRIEF PAUSE) Will you approach the bench?

                  (Whereupon, an off-the-record discussion was had by Court and Counsel
                  at the bench with the Defendant present.)

                 While admittedly the jury failed to find Lambert guilty of capital murder,
        it is difficult to imagine that the surprise to the defense and the prosecution’s
        attempt to prove sexual battery had no impact on the jury’s ultimate conclusion.

Lambert I, 462 So. 2d at 319-20 (Dan M. Lee, J., dissenting). In our view, neither this vague

exchange nor the information provided to us by the parties in this case leads to the conclusion

that Lambert was subjected to the “trial by ambush” tactics criticized in Berryhill.

¶31.    Lambert also relies on a bold statement from Justice Dan M. Lee’s dissent that “[d]uring

the course of the trial the state was allowed to introduce evidence of the sexual battery.

Because Lambert was not charged with sexual battery, the introduction of that evidence was

clearly error.”    Id. at 320 (Dan M. Lee, J., dissenting).         However, neither that dissent nor

Lambert explains what the improper evidence might be.

¶32.    It is certainly plausible that evidence relevant to the sexual battery offense would also

be relevant to the attacker’s possible motive and the identification of Lambert as Mrs. Trigg’s

murderer.    Lambert’s only example of allegedly improper evidence admitted by the trial court

was select testimony by serologist Jonette Gothard, who stated that she tested Mrs. Trigg’s

body for spermatozoa and seminal fluid using a sexual assault kit, and that she tested Mrs.

Trigg’s “mouth, her vaginal vault and . . . [her] anus.” Lambert claims that had he known the

State intended to introduce this evidence, he would have moved to exclude all testimony

concerning the sexual battery.



                                                   12
¶33.    We note that Lambert raises no complaint of discovery violations.            Absent some

discovery violation, we find no credibility to the theory that Lambert would not have known

about this evidence or recognized its value to the State. Autopsies, tests, and other evidence

relating to a victim’s injuries are often discussed during trial, and Lambert never explains why

this evidence was so surprising that it served to prejudice his defense.

¶34.    Lambert bears the burden of “proof by preponderance of the evidence” that he is entitled

to post-conviction relief.    McClendon v. State, 539 So. 2d 1375, 1377 (Miss. 1989) (citing

Miss. Code Ann § 99-39-23(7)).           Lambert simply does not carry his burden.    He claims,

without explanation, that he did not know the State would attempt to show he committed a

sexual battery.   He argues that he would have moved to exclude certain evidence of the sexual

battery, but he never describes which evidence would have been excluded in a prosecution for

simple murder. In fact, the pubic hairs found at the scene, evidence criticized by Justice Dan

M. Lee’s dissent in Lambert I before the hairs were proven by DNA analysis to belong to

Lambert, was significant in identifying Mrs. Trigg’s attacker, and thus relevant to more than

just the alleged sexual battery.     See Miss. R. Evid. 404(b) (evidence of other crimes, wrongs,

or acts may be admissible for “purposes such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident”).     As for testimony

about the sexual assault kit used on Mrs. Trigg’s body and the resulting findings, evidence of

sexual assault may be admitted even when unrelated to the ultimate cause of death.     See, e.g.,

Thorson v. State, 895 So. 2d 85, 96, 103 (Miss. 2004).

¶35.    Lambert argues that because his indictment did not inform him that the underlying

“intended crime” was sexual battery, his trial was inherently unfair.      However, in order to

                                                    13
prevail on his petition for post- conviction relief, Lambert must prove by a preponderance of

the evidence that he was prejudiced by evidence that should have been excluded in a simple

murder trial. Lambert points to no such evidence.

¶36.    Lambert finally argues that “once the concept that Lambert penetrated Mrs. Triggs [sic]

mouth and throat with his private parts was implanted in the jurors’ minds, any chance that

Lambert might have received a fair trial was obliterated.” However, the State points out that

Lambert was convicted of murder less than capital, negating any inference that he suffered

prejudice.   Clearly, Lambert defended himself admirably because the jury did not find him

guilty of the underlying burglary felony, and thus they did not convict him of capital murder.

His simple murder conviction was completely unrelated to the burglary charge, no matter the

underlying offense, so he cannot reasonably claim prejudice to his defense.

¶37.    Had Berryhill been the law when Lambert was tried, the trial court would have quashed

the portion of the indictment charging him with capital murder.         Berryhill does not support a

finding that Lambert’s indictment, in its entirety, was void or voidable.     Given Lambert’s failure

to point to any tainted evidence or demonstrate with any specificity prejudice suffered, the trial

court’s finding that Lambert did not carry his burden of proof with respect to the Section 99-

39-5(2) time-bar exception was not clearly erroneous.               Lambert has not shown by a

preponderance of the evidence that his conviction or sentence would have been different had

Berryhill been controlling precedent when he was tried, so Lambert’s petition for post-

conviction relief was properly denied by the trial court.




                                                    14
                                           CONCLUSION

¶38.    Because Lambert has not established any exception to the three-year statute of

limitations for his post-conviction relief petition, the trial court correctly denied that petition

as time-barred.     For the reasons herein, we affirm the trial court’s denial of Lambert’s petition

for post-conviction relief.

¶39.    AFFIRMED.

     SM ITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J.,
NOT PARTICIPATING.




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