Death sentence stands in 3-2 vote

INDIANAPOLIS -- The Indiana Supreme Court narrowly let stand the death sentence of a man convicted of killing a Muncie police officer, even though it acknowledged that a trial court made errors during sentencing.\nThe justices voted 3-2 to deny Michael Allen Lambert's request that he be allowed to contest for a second time his death sentence for the shooting of Officer Gregg Winters.\nIn the majority opinion Thursday, Chief Justice Randall T. Shepard wrote that the grounds cited by Lambert in his petition did not entitle him to a successive appeal. Federal courts rejected his previous appeal.\nLambert sought permission to appeal because his sentence conflicted with a change in Indiana law that prohibits judges from issuing the death penalty when a jury recommends unanimously against it.\nIn Lambert's case, Delaware Superior Court jurors unanimously recommended the death penalty. But Lambert argued that they might not have done so had they not been swayed by victim-impact testimony by Winters' family members and fellow officers that was improperly allowed.\nUnder Indiana law, victim-impact statements are allowed only after the judge issues the sentence. Testimony during the penalty phase is limited to aggravating or mitigating circumstances.\nThe Supreme Court acknowledged the testimony was improper, but the majority held the error was harmless.\n"There is no suggestion the aggravating circumstance -- Officer Winters was acting in the course of duty when Lambert shot him -- was not proved beyond a reasonable doubt, which, in any event, we infer from the jury's unanimous recommendation," Shepard wrote.\nJustices Theodore Boehm and Robert Rucker, however, dissented, saying that the jury recommendation was tainted by the victim-impact testimony.\n"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," Rucker wrote in his dissent. "Therefore, we must hold that the error in admitting the victim impact testimony was not harmless error."\nJurors found Lambert guilty of murder in the Dec. 28, 1990 shooting of Winters, who died 11 days later. Prosecutors said Lambert, who had been arrested on a public intoxication charge, pulled a handgun from his belt while he was handcuffed in the back of a police car and shot Winters several times in the head and neck.