David Lambert has a history of fixating on guns while using
methamphetamine. Armed with a knife on October 3, 2011,
Lambert went to the house of his 80-year-old paternal
grandfather George Lambert to steal guns. Lambert assaulted
and brutally murdered his grandfather, tied up his
66-year-old great-aunt, and stole her car. Lambert drove to
his mother's house to steal guns. Lambert confronted his
80-year-old maternal grandfather August Eisner in the
driveway and demanded the keys to the garage that contained a
gun safe. When Eisner refused to give him the keys, Lambert
brutally murdered him. Before he was arrested, Lambert went
to the apartment of an acquaintance to steal a weapon. A jury
convicted Lambert of two counts of premeditated murder and
felony murder in the first degree predicated on burglary in
the first degree, three counts of burglary in the first
degree, kidnapping in the first degree, taking a motor
vehicle without permission in the second degree, and unlawful
possession of a firearm in the second degree. Murder in the
first degree and burglary in the first degree are alternative
means crimes. The court instructed the jury that it need not
unanimously agree on the means. Where sufficient evidence
supports each of the alternative means of committing a crime,
jury unanimity is not required. But where insufficient
evidence supports one of the alternative means, the
conviction cannot stand. Lambert contends insufficient
evidence supports the felony murder convictions of George
Lambert and August Eisner predicated on burglary in the first
degree. Lambert also argues the to-convict jury instructions
on felony murder omitted an essential element, the murder in
the first degree and burglary in the first degree convictions
violate double jeopardy, the court violated his
constitutional right to represent himself, and the court
erred by ruling on his motion to acquit by reason of insanity
at the end of trial. Because insufficient evidence supports
the felony murder conviction of August Eisner predicated on
burglary in the first degree of the residence of
Lambert's mother and stepfather, we reverse the felony
murder conviction of Eisner and burglary in the first degree
of the residence of Lambert's mother and stepfather. On
remand, the State may retry Lambert on only premeditated
murder in the first degree and burglary in the first degree
on the deadly weapon prong. In all other respects, we affirm.
David Lambert is the son of Rick Lambert and Susan Lambert
and the father of S.L. Lambert has a history of using
methamphetamine. In 2001 and 2002, Lambert was convicted of
unlawful possession of methamphetamine. When S.L. was
3-years-old, the court appointed Susan Lambert and her spouse
James Coffin as the legal guardians of S.L. In 2005, Lambert
moved to Alaska. In March 2006, Lambert was convicted of
assault in the third degree. In October or November 2010,
29-year-old Lambert returned from Alaska to live with his
mother, stepfather, and 12-year-old S.L. at their residence
on Hastie Lake Road in Oak Harbor, Washington. Lambert lived
in a van parked in the driveway.
spring 2011, Susan Lambert and Coffin suspected Lambert was
using drugs and were concerned about the safety of S.L.
Coffin was also concerned for his own safety and
"started keeping a gun in the house" and
"would wear it in the house ... until Susie came
home." Coffin owned several guns that he kept locked in
a gun safe in the garage.
fight with a neighbor, Susan told Lambert he had to leave.
Coffin testified Lambert's "drinking had escalated
to violence, and we couldn't have him on the property ...
once he was doing violent things." Lambert sold the van
and lived in a tent in a heavily wooded area located
approximately 100 yards from the Hastie Lake Road residence.
Lambert used methamphetamine, he became paranoid, fixated on
guns, and engaged in " 'gun-searching
behavior.'" On October 2, 2011, Lambert stole a
12-gauge shotgun that belonged to Coffin from the garage.
Lambert "sawed the shotgun off, " removed the
serial number, and hid the gun in the woods.
next day on October 3, Lambert could not remember where he
hid the shotgun. Lambert decided to walk to his uncle Jeffrey
Lambert's house to "steal guns." Because
"there appeared to be a whole bunch of people" at
the house, Lambert decided to go to his paternal
grandfather's house on Oldenburg Lane in Oak Harbor to
George Lambert lived with his 66-year-old sister Kay Gage at
the house on Oldenburg Lane. After he suffered a "major
stroke" in 2005, George had significant "mobility
issues" and used a "lift chair." Lambert and
his grandfather had a close relationship. Lambert would often
visit his grandfather and help do yard work.
arrived at the house at approximately 2:30 p.m. Lambert
carried a folding knife in his pocket. Gage was in the
driveway loading her car with items from the garage to take
to storage. Gage told Lambert his grandfather was in the
living room doing crossword puzzles. Lambert entered the
house through the front door and immediately locked the door
behind him. George Lambert was standing in front of his lift
chair in the living room.
was on a " 'mission'" to get a gun and
confronted George. Lambert said, " 'I put the knife
in his face, which is the universal term for freeze. And ...
he wasn't scared at all. ... Not one bit of fear were in
his eyes at all.'" Lambert said George "
'charged'" at him and they fought and struggled.
Lambert stabbed George in the throat, nearly severing his
tongue. Lambert stabbed George in the chest 27 times.
grabbed Gage as she entered the house from the garage.
Lambert took her cellphone, pushed her into the living room,
hit her on the head, and bound her wrists and ankles with
packing tape. Lambert demanded Gage tell him "where the
guns were." Gage knew George kept a gun under his bed
but did not tell Lambert about the gun or that she and George
switched bedrooms. Lambert "started going through the
house and yelling and tearing things ... out of
closets." Gage said when Lambert "couldn't find
the weapons, " she recalled seeing "two guns that
were ... in the garage.... [A]n air gun and a
BB' gun." Gage told Lambert she
"remembered ... [t]here were rifles in the garage."
Lambert demanded Gage give him the keys to her car. After
finding " 'the pellet rifle'" and
ammunition in the garage, Lambert left.
drove to his mother's house on Hastie Lake Road because
he "knew there were guns there." Susan
Lambert's 80-year-old father August Eisner lived in an
apartment above the garage. Lambert searched the house for
firearms. While he was in the bedroom, Lambert saw his
grandfather outside in the driveway. Lambert left the house
and confronted Eisner in the driveway. Lambert told Eisner
he" 'needed the key'" to the garage
because" 'the garage was locked'" and there
were " 'guns and the cases in the garage.'"
Eisner refused to give him the keys to the garage. According
to Lambert, Eisner" 'said, "No. You're not
allowed in the garage."'" Lambert"
'put the knife in his face'" and Eisner lunged
at him. Lambert stabbed Eisner in the neck, severing his
carotid artery. Lambert stabbed Eisner in the back 21 times.
Lambert took the garage keys from Eisner's pocket but he
could not open the gun safe.
drove to the apartment of an acquaintance, Amber McCabe. When
McCabe retuned from visiting a neighbor, she found Lambert
inside holding her hunting bow. McCabe demanded he leave.
Lambert "said that the police were looking for
him." Lambert dropped the bow and left. As Lambert was
leaving, McCabe "noticed some needles - Yellow with
oranges [sic] caps on the ends of them - he had in his
Harbor Police Department officers arrested Lambert later that
day. Officer Robert Mirabal found a hypodermic needle in
Lambert's jacket pocket and a "[s]mall . plastic
bag" of white powder in his pants pocket.
State charged Lambert with premeditated murder and felony
murder in the first degree predicated on burglary in the
first degree of George Lambert, count I; premeditated murder
and felony murder predicated on burglary in the first degree
of August Eisner, count II; kidnapping in the first degree of
Kay Gage, count III; burglary in the first degree of the
residence of George Lambert and Kay Gage, count IV; taking a
motor vehicle without permission in the second degree, count
V; burglary in the first degree of the residence of Susan
Lambert and James Coffin, count VI; burglary in the first degree
of the residence of Amber McCabe, count VII; and unlawful
possession of a firearm in the second degree, count VIII. The
State alleged a deadly weapon enhancement and a number of
arraignment on October 17, 2011, Lambert told the court he
wanted to represent himself at trial. Following an extensive
colloquy, the court found Lambert knowingly, intelligently,
and voluntarily waived his right to counsel and granted his
request to represent himself. Lambert entered a plea of not
guilty. On November 21, the court appointed standby counsel
to assist Lambert in preparing for trial.
February 6, 2012, Lambert sent a five-page handwritten
confession to Detective Cecil Wallace. Lambert admits he
killed George Lambert and August Eisner and "
'detain[ed]'" Kay Gage. Lambert states that he
" 'thought, due to insanity, that [S.L.]'s life
was in danger.'"
February 8, 2013, the State filed a motion for a competency
evaluation of Lambert. The court ordered a competency
evaluation. On February 27, Western State Hospital
psychiatrist Dr. Ray Hendrickson issued a 15-page forensic
mental health evaluation. Dr. Hendrickson states Lambert has
a history of substance dependence and "an acknowledged
history of significant and continuing drug abuse." But
Dr. Hendrickson concluded his reported symptoms were
Most of [Lambert's] currently related symptoms of a
psychotic nature, if credible, are atypical and infrequently
reported symptoms and symptom combinations, and represent
possible feigned attempts to present with symptoms of a
Hendrickson diagnosed Lambert with "Substance Abuse
versus Dependence (alcohol, cannabis, amphetamines, cocaine,
opiates, and hallucinogens)."
[E]ven if Mr. Lambert's expressed psychotic symptoms are
genuine, they did not appear to interfere in any significant
manner with his ability to function, or his ability to have a
rational understanding of the court proceedings or to work
with his standby attorney.
filed a motion to obtain a second competency evaluation by
Dr. Lawrence Wilson. On March 5, the court authorized the
second competency evaluation. Dr. Wilson issued a report on
April 16. Dr. Wilson states that although Lambert "has
some deficits, " his "numerous fantasy-like claims
... add up ... to embellishment and exaggeration of whatever
psychotic experiences he had in Alaska and upon returning to
Washington." Dr. Wilson concluded Lambert was competent
to represent himself at trial.
In this case, it is my best judgment that Mr. Joshua Lambert
has the Factual and Rational Understanding that is necessary
to serve as his own defense counsel, and to make decisions on
his own behalf. I have come to this conclusion after careful
review of the case documents, an interview of adequate length
of time with Mr. Lambert, and have consulted with some of the
recent forensic psychiatry thinking on the topic, and make
this opinion to the best of my ability.'
court held a competency hearing on April 26. Lambert
disagreed with both competency evaluations and asserted Dr.
Wilson "lie[d]" in his report. The court concluded
Lambert was competent to stand trial and represent himself.
The defendant, in his present mental state, does possess the
basic and fundamental capacity to understand the nature of
the charge against him and does possess the basic fundamental
capacity of [sic] participate in his own defense.
court entered detailed findings of fact and conclusions of
6, Lambert filed a motion "to set a hearing for the
defendant to move for an acquittal based on insanity."
The State filed a motion to defer ruling on Lambert's
motion to acquit until after the experts testified at trial.
The court granted the State's motion.
jury was empaneled and the two-week trial began on July 10,
2013. Lambert reserved opening statement until the defense
case. The State called a number of witnesses in its
case-in-chief, including Kay Gage, Susan Lambert, James
Coffin, Amber McCabe, the Island County Coroner, Washington
State Patrol Crime Lab (WSPCL) forensic scientists, and
police officers and detectives.
stipulated that he had previously been convicted of a felony.
The police testified they found the shotgun Lambert stole
from Coffin on October 2, 2011, in the woods near the
residence on Hastie Lake Road.
testified that her brother George and Lambert had a very
close relationship. George "loved [Lambert] to
death" and "would have done anything for him."
Gage said George and Lambert "enjoy[ed] each other's
company." Lambert often came to the house to
"visit" George and was always "welcome."
Q Was he there to visit you or to visit your brother?
A To visit my brother. I tended to leave the room so they
could visit. He wasn't there to see me. So I just went
either to my room or, you know, outside or something.
testified that on October 3, 2011, Lambert asked her where
his grandfather was and started to enter the house through
the garage. Gage stopped him and said, " 'Honey, go
through the ... front door. He's in the living
room.'" Gage testified that 5 to 10 minutes later,
she entered the house through the garage. Gage testified that
Lambert hit her on the head, bound her wrists and ankles with
tape, demanded she tell him where the guns were located, and
drove away in her car.
testified Lambert was "allowed in the house" only
"when his mother was home." Coffin testified he
kept his guns in a locked gun safe in the garage. Coffin said
he installed a deadbolt on the garage door and
"always" kept the door locked "specifically
... to keep [Lambert] out of the garage." Coffin
testified that when he arrived home from work on October 3,
he saw Eisner on the ground in the driveway with a
"large gash on his throat that had bled dry."
forensic scientist Daniel Van Wyk testified that the white
powder the police seized from Lambert's pocket was a
substance "very frequently [used] as a cutting agent for
methamphetamine, " dimethyl sulfone.
forensic scientist Mariah Low testified there were
"blood stain swipes" on the garage door of the
Hastie Lake Road residence. Low testified there was blood on
a light switch inside the garage and "bloody shoe prints
or boot prints" on the garage floor. There were
bloodstains on the door of the main residence and
"bloody footwear impressions also at the base of the
door." Low described "blood marks that go around a
kitchen area and then up the stairs into a bedroom."
testified that Lambert called her several times on October 3,
2011. The first call was at 7:30 a.m. Lambert wanted to talk
to S.L. Susan Lambert told him S.L. "didn't want to
talk to him." The next call was "shortly after
2:30." Susan Lambert said she "noticed ... it was
Aunt Kay's number" but when she answered, "it
was [Lambert]." Susan asked Lambert if he was over at
the house helping his grandfather George.
And when I answered, it was him. And I said, "Oh, well,
hi." I said, "Are you helping Pops?"
I assumed that he was over there and he asked to use her
You know, we talked about him helping Pops trim the fruit
trees. And I - I made an assumption that that - that's
what he was doing.
said that during the conversation, she was not "alarmed
at all by anything that was happening."
County Coroner Dr. Robert Bishop testified George Lambert
suffered blunt force trauma to the face and stab wounds to
the neck and chest. Dr. Bishop said George sustained
"ecchymosis or bruising around the eyes from blunt force
trauma. Layman's term would be black eyes." Dr.
Bishop said George Lambert also showed signs of "[b]lunt
force trauma all around both cheeks and the chin and
mouth." Dr. Bishop testified the stab wound to the neck
"transected" the carotid artery, "injured the
jugular vein, " and "half-transected"
George's tongue. Dr. Bishop said the stab wounds to
George's chest punctured his liver and lungs
Bishop testified August Eisner suffered a stab wound to his
neck that "completely transected and... exposed"
the carotid artery and multiple stab wounds to the back. Dr.
Bishop testified that an individual with a severed carotid
artery can "have . as much as 20, 25 seconds of
consciousness." Dr. Bishop estimated that Eisner died at
approximately 3:00 p.m. on October 3.
court admitted into evidence recordings of several
conversations between Lambert and his mother while Lambert
was in jail. The State played portions of the recorded
conversations for the jury. On October 8, 2011, Susan tells
Lambert that "they know you were on something" and
asks him what he was "on." Lambert replies that he
"can't talk about too many details of the case"
and changes the subject. Later in the conversation, Lambert
describes the "whole day" as a "trip."
Lambert tells Susan he does not "know how I got to that
point." Susan responds, "Drugs."
October 14 phone call, Lambert tells Susan Lambert there is
"a dirty needle" in a duffle bag on the side of her
house and asks her to throw it away. In an October 19
recording, Lambert tells Susan Lambert he repeatedly stabbed
George Lambert and August Eisner "because they
weren't dying right away" and he "was trying to
get them to die."
SUSAN LAMBERT: ... The coroner's report says you stabbed
each grandpa at least 30 times.
JOSHUA D. LAMBERT: Well, actually, that was because they
weren't dying right away. And I couldn't stand to sit
there and watch them slowly die. That's why I- That's
why I kept stabbing them. Because I never killed anybody
before. I don't know how.
That's why- I slit their throat, but they won't- When
they're in the movies, you slit their throat, they drop
down dead right away.
They weren't dropping down dead. They're sitting
there looking up at me, moving around. Ah. And it's -
it's - it's- It is horrible.
That's why- That's why there's so many stab
wounds. Because I was trying to get them to die; not - not
sit there slowly die. Not sit there slowly in pain.
court admitted into evidence Lambert's five-page
handwritten confession. Detective Wallace read the
handwritten confession Lambert sent to him to the jury.
Lambert states killing George Lambert and August Eisner was
" 'the fastest way to a firearm.'" Lambert
states that" 'due to insanity, '" he
believed S.L's life was in danger. Lambert admits
stabbing George to death and says he stabbed Eisner in the
driveway because he would not provide the key to his
mother's garage. Lambert states he would have "
'killed just about anybody to arm myself.'"
"I don't want you to think hallucinations ordered me
to kill my grandpas. It was, honestly, the fastest way to a
firearm to save [S.L.].
"If it was somebody in the way of a firearm, ... I'd
have killed them if I thought they were jeopardizing the
safety of [S.L.] in the situation. I'd have killed just
about anybody to arm myself to save [S.L.] from this
opening statement, Lambert told the jury the evidence would
show that on October 3, 2011, he was "legally
testified he took methamphetamine intravenously and kept
needles at Susan Lambert's house. Lambert said he hears
voices "pretty much constantly" and was "in
some form of hallucination during the murders." Lambert
described previous hallucinations and the hallucinations he
experienced on the day of the murders in detail.
testified that on October 3, he went to his uncle Jeffrey
Lambert's home "and tried to steal guns there"
but left because there would be "[t]oo much
resistance" and he "wouldn't have been
said he took a bus to his grandfather George Lambert's
house. Lambert testified he "was planning on breaking
in" and "was going there ... to steal a gun."
Lambert said he tried to tie up George but stabbed him
because "[t]here was some resistance." Lambert
admitted he already had his folding knife "open in my
pocket" when he entered George Lambert's house.
Lambert said the first wound to George "wasn't aimed
at anything" and "couldn't have been lethal
really, " but the "other ones were aimed at the
veins" and "cutting someone's throat" with
a knife is a fatal wound.
testified that he drove his great-aunt's car to his
mother's house on Hastie Lake Road. Lambert said he
searched the house "trying to find a gun." Lambert
said that while he was inside the house, he saw his
grandfather August Eisner in the driveway.
Q Did he come down the stairs while you were out in the
driveway or where did you meet?
A I was in my mom's room and I seen him out the window.
Q So you had already- You were in the main house?
Lambert testified he was still carrying the same knife that
he used to kill George Lambert. Lambert testified that when
he confronted Eisner, he "put the knife ... on him ...
to get him to freeze." But Eisner "jerked his arms
up really fast."
cross-examination, Lambert admitted he had a fascination with
guns when he used methamphetamine. "I liked to clean
[guns] when I was on meth. So when I was doing meth, I -1
would have [guns] out all tooken [sic] apart and stuff."
Lambert said he "would bring [guns] out and load them
sometimes when I was on meth" because he "would get
paranoid on meth."
called several police officers to testify as well as defense
psychologist Dr. Robert Deutsch, Dr. Wilson, and Island
County Coroner Dr. Bishop.
Deutsch testified that in his opinion, Lambert was
"suffering from a long-standing, deeply ingrained
psychotic disorder." Dr. Deutsch said that on October 3,
2011, Lambert "was in the throes of an intense paranoid
delusional system." According to Dr. Deutsch, Lambert
became "obsessed" with a "paranoid delusion
that [S.L.] had been kidnapped." But Dr. Deutsch
admitted Lambert was "overemphasizing or embellishing or
exaggerating, misrepresenting" his symptoms. Dr. Deutsch
testified that on October 3, 2011, Lambert knew what
"the law of the land was, but... he believed that the
law was suspended for him." Dr. Deutsch said that in his
opinion, Lambert "believed he was doing the morally
Wilson testified he was "quite interested and
amazed" by how much Lambert had learned about mental
health issues. Dr. Wilson said Lambert did "a good bit
of study" and read multiple Internet articles and a
forensic psychiatry journal. Dr. Wilson stated that the
symptoms Lambert reported during his competency evaluation
were " 'not typical of usual schizophrenic
hallucinations and delusions'" and could be
"Many of his reported symptoms are clearly psychotic in
nature, but are not typical of usual schizophrenic
hallucinations and delusions. For example, schizophrenic
hallucinations do not usually manifest such a vast range of
voices that command the afflicted person to perform such a
wide range of actions mainly of a violent and/or shocking
nature. These could represent a faked attempt to exaggerate
the experience he had during his earlier brief psychotic
episodes with methamphetamine or psychedelic drugs or
flagrant sham symptoms of how he presumes severe mental
illness is actually experienced by an average person."
rebuttal, the State called Western State Hospital forensic
psychiatrist Dr. Margaret Dean and psychologist Dr. Brian
Judd. Dr. Dean testified Lambert was probably in a
"substance-induced psychotic episode" on October 3,
2011. Dr. Dean said substance-induced psychotic episodes
"are not the result of a major mental illness, ... but
are solely the result of voluntary use of a drug." Dr.
Dean concluded Lambert was "malingering, " or
intentionally "feigning or exaggerati[ng] or faking ...
mental health symptoms in order to obtain a certain definite
goal." Dr. Dean described a number of reasons to support
her conclusion that Lambert was malingering, including
"repeatedly tr[ying] to control the content and process
of the interviews" and reading from "copious
notes" to describe the events of October 3 during
interviews. Dr. Dean testified that it was her "medical
opinion, to a reasonable degree of medical certainty, that
Mr. Lambert does not qualify for an affirmative defense of
being found not guilty by reason of insanity."
Judd testified that he diagnosed Lambert with an
"[a]mphetamine-induced psychotic disorder with delusions
with onset during withdrawal." Dr. Judd testified that
psychiatric testing "came out very, very high indicating
that [Lambert] was exaggerating symptoms." Dr. Judd
stated Lambert was "endorsing .... symptoms that are
seldom seen in genuinely psychiatrically impaired
populations." Dr. Judd stated Lambert's former
girlfriend, Jackie Wallace, described her "observations
of [Lambert] using methamphetamine." Wallace told Dr.
Judd that when Lambert" 'starts coming down from a
meth binge, he would become paranoid and engage in
gun-searching behavior. He would collect firearms.'"
Dr. Judd testified that in his opinion, Lambert "was
able to understand the nature and the quality" of his
acts and "could tell right from wrong" on the day
of the murders.
conclusion of the evidence, the court ruled Lambert did not
meet his burden to show he was not guilty by reason of
insanity. The to-convict jury instruction on murder in the
first degree states, in pertinent part:
To return a verdict of guilty, the jury need not be unanimous
as to which of alternatives (2)(a) [(the defendant acted with
premeditated intent)] or (2)(b) [(the defendant caused the
death . . . [d]uring the course of, in furtherance of, or in
immediate! ]flight from the commission of burglary in the
first degree)] has been proved beyond a reasonable doubt, as
long as each juror finds that at least one alternative has
been proved beyond a reasonable doubt.
jury returned a verdict finding Lambert guilty of murder in
the first degree of George Lambert, murder in the first
degree of August Eisner, kidnapping in the first . degree of
Kay Gage, burglary in the first degree of the residence of
George Lambert and Kay Gage, taking a motor vehicle without
permission in the second degree, burglary in the first degree
of the residence of Susan Lambert and James Coffin, burglary
in the first degree of the residence of Amber McCabe, and
unlawful possession of a firearm in the second degree. By
special verdict, the jury found Lambert was armed with a
deadly weapon at the time he committed murder in the first
degree of George Lambert and August Eisner, kidnapping Kay
Gage, burglary in the first degree of the residence of George
Lambert and Kay Gage, and burglary in the first degree of the
residence of Susan Lambert and James ...