85 P.3d 287 (Okla.Crim.App. 2004), D-2000-1609, Littlejohn v. State

Docket NºD-2000-1609.
Citation85 P.3d 287
Party NameEmmanuel A. LITTLEJOHN, Appellant v. STATE of Oklahoma, Appellee.
Case DateFebruary 12, 2004
CourtCourt of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 287

85 P.3d 287 (Okla.Crim.App. 2004)

Emmanuel A. LITTLEJOHN, Appellant

v.

STATE of Oklahoma, Appellee.

No. D-2000-1609.

Court of Criminal Appeals of Oklahoma

February 12, 2004.

Page 288

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 290

James T. Rowan, Janet Chesley, Oklahoma Indigent Defense System, Norman, OK, Joel A. Porter, Attorney At Law, Oklahoma City, OK, attorneys for appellant at trial.

Pattye High, Assistant District Attorney, Jodi Casey, Assistant District Attorney, Oklahoma City, OK, attorneys for the state at trial.

Janet Chesley, Matthew D. Haire, Capital Trial Division, Oklahoma Indigent Defense System, Norman, OK, attorneys for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

STRUBHAR, Judge.

¶ 1 Emmanuel A. Littlejohn, Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CF-92-3633, and was convicted of Robbery with a Firearm, After Former Conviction of Two or More Felonies (Count I), First Degree Malice Aforethought Murder (Count II) and Conspiracy to Commit Robbery with a Firearm, After Former Conviction of Two or More Felonies (Count III). The jury found three aggravating circumstances1 and recommended a death sentence for Count II. The jury set punishment at three hundred (300) years imprisonment for Count I and ninety-nine (99) years imprisonment for Count III. The trial court sentenced Littlejohn accordingly.

¶ 2 Littlejohn appealed his Judgment and Sentence to this Court. We affirmed his convictions and sentences for Counts I and III,2 but vacated his death sentence for Count II because of the erroneous admission of Littlejohn's uncorroborated confession to a jailhouse informant. Because we could not find the error did not influence the jury's finding of the continuing threat aggravator and because there was insufficient evidence to support the jury's finding of the great risk of death aggravator, we remanded the matter for resentencing.3 Pursuant to 21 O.S.Supp.2000, § 701.10a, a new jury was impaneled for the resentencing trial which was held before the Honorable Virgil C. Black on October 30-November 8, 2000. This time the jury found two aggravating circumstances4

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and recommended the death penalty. The trial court so ordered. Littlejohn now appeals from that Judgment and Sentence.5

¶ 3 Briefly stated, the facts show that on June 19, 1992, Littlejohn and Glenn Bethany robbed the Root-N-Scoot convenience store located at 532 Southeast 15th Street in Oklahoma City, Oklahoma. At the time of the robbery, Tony Hulsey, his younger brother Danny Waldrup, and store manager Kenneth Meers were working in the store. Meers was shot and killed as Littlejohn and Bethany exited the store.

¶ 4 In his first proposition of error, Littlejohn claims the trial court gave a constitutionally deficient response to the jury's inquiry about the ramifications of imposing a sentence of life imprisonment without the possibility of parole. During deliberations, the jury sent out a note asking, "Is it possible to change the verdict of life without parole to with parole after our verdict and without another jury verdict (by anyone)?" Defense counsel asked the trial court either to use one of its proposed instructions concerning parole ineligibility for offenders sentenced to life imprisonment without the possibility of parole6 or to tell the jury that each of the sentencing options means what it says. After some discussion, no agreement could be reached about what would constitute a factually correct answer. As a result, the trial court, with the assent of defense counsel, opted to tell the jury that it "had all the law and evidence necessary to reach a verdict."

¶ 5 Littlejohn concedes this Court has upheld such responses to questions concerning the meaning of the life imprisonment without the possibility of parole sentencing option. However, Littlejohn argues the trial court's response was insufficient and unconstitutional in this particular case when considered in conjunction with the trial court's oral instructions concerning jury questions. Before the jury retired to deliberate, the trial court told the jurors it had some latitude to answer questions posed from the jury during deliberations. The judge said he would give the jurors the code--"I'll answer it if it's appropriate to answer." The judge then stated:

If you get the code back that says, you have all the law and evidence necessary to reach a verdict, what that means is the answer to your question is in the instructions, it was in the evidence, or you're asking me something that's inappropriate for me to answer, okay. You now have the code. I'll answer what I can; if I can't, that's you know what the code means.

¶ 6 Littlejohn argues that the trial court's response coupled with the "code" was tantamount to telling the jury that parole was inappropriate for their consideration. Relying on Johnson v. Gibson, 254 F.3d 1155 (10th Cir.), cert. denied, 534 U.S. 1029, 122 S.Ct. 566, 151 L.Ed.2d 439 (2001) and 534 U.S. 1036, 122 S.Ct. 580, 151 L.Ed.2d 451 (2001), Littlejohn claims relief is required. Both this Court and the Tenth Circuit held it was error for the trial court in Johnson to respond to the jury's question concerning parole eligibility for a defendant sentenced to life imprisonment without the possibility of parole by stating it was inappropriate for the jury to consider the question because a capital sentencing jury must consider the distinctions between life, life without parole and death in reaching a sentencing decision. Johnson, 254 F.3d at 1165; Johnson v. State, 1996 OK CR 36, ¶ 49, 928 P.2d 309, 320, cert. denied, 522 U.S. 832, 118 S.Ct. 99, 139 L.Ed.2d 54 (1997). The Tenth Circuit reversed this Court's decision holding the error harmless, finding "the trial court's instruction that it was inappropriate for the jury to consider parole eligibility did not refer the

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jury back to the instructions; rather, it plainly contradicted those instructions." Johnson, 254 F.3d at 1166. The trial court's response told the jury that parole eligibility could not be considered when plainly it could be. Id.

¶ 7 Johnson is distinguishable from the instant case. Here, the trial court followed this Court's guidelines adopted in Cohee v. State, 1997 OK CR 30, ¶ 2, 942 P.2d 211, 212, and told the jury it would answer the jury's questions if it could. Neither the trial court's response to the jury's question nor its supplemental oral instructions concerning how to decode its answers advised the jury it could not consider parole eligibility in determining the appropriate sentence. Because the trial court's response and supplemental instructions did not have the effect of creating the false choice dilemma condemned in Johnson, we find no error. See Mollett v. Mullin, 348 F.3d 902, 916 (10th Cir. 2003)

¶ 8 Littlejohn also asks the Court to reconsider its position on providing jurors with information concerning the meaning of life imprisonment without the possibility of parole and adopt the opinion of those Court members who are in favor of providing inquiring juries a meaningful response in regard to the parole eligibility of an offender sentenced to life imprisonment without the possibility of parole. Since the enactment of the life without the possibility of parole punishment option, a majority of this Court has adhered to the position that the three punishment options are self-explanatory. We held that instructing a capital sentencing jury on the three statutory punishment options, with their obvious distinctions, was sufficient to satisfy the due process concerns addressed in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality).7 See Williams v. State, 2001 OK CR 24, ¶ 10, 31 P.3d 1046, 1050, cert. denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002). In addition, we have held the proper method for trial courts to utilize in disposing of jury questions inquiring about the meaning of life imprisonment without the possibility of parole was to refer the jury back to the self-explanatory instructions. Douglas v. State, 1997 OK CR 79, pp 102-04, 951 P.2d 651, 678, cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998). What the trial court did in this case with its response was the exact practice prescribed by this Court, and we are unwilling to hold the response was somehow insufficient, misleading or erroneous.

¶ 9 Nevertheless, the frequency with which this issue arises sparks debate anew and causes us to reexamine our present stance and consider whether future juries who ask about the meaning of life imprisonment without

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the possibility of parole should be given further explanation. We see case after case in which the jury is instructed on the three punishment options, and yet the jury sends out a note, asking in some form or fashion whether the offender will be parole eligible if sentenced to life imprisonment without the possibility of parole.8 We are concerned the jury's question here illustrates a recurring misconception within Oklahoma juries regarding the effective application of a life imprisonment without the possibility of parole sentence, which in turn casts at least some doubt on our premise that the punishment options are self-explanatory. Unlike the Simmons situation where the jury's question stemmed from the fact it was not given any information about parole eligibility from the sentencing options provided, i.e., life imprisonment or death, the situation we face in Oklahoma is that a fair number of jurors do not comprehend the plain meaning of the life imprisonment without the possibility of parole sentencing option and question whether the offender is truly parole ineligible. This is likely because "...

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43 practice notes
  • Bennett v. Pima County Community College District, 102816 AZAPP2, 2 CA-CV 2016-0019
    • United States
    • Arizona Court of Appeals of Arizona
    • October 28, 2016
    ...a 'decision on an improper basis, such as emotion, sympathy, or horror.'" Shotwell 207 Ariz. 287, ¶ 34, 85 P.3d at 296, quoting State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). The trial court expressed concern about a portion of the report a......
  • In re Adoption of 2005 Revisions to Oklahoma Uniform Jury Instructions, 072805 OKCRI, 2005 OK CR 12
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • July 28, 2005
    ...released from prison. The Court of Criminal Appeals gave the following advice to trial courts in Littlejohn v. State, 2004 OK CR 6, ¶ 11, 85 P.3d 287, 293-94, on how to respond to such requests: Therefore, in future cases where the jury during deliberations asks, in some form or fashion, wh......
  • 119 P.3d 753 (Okla.Crim.App. 2005), CCAD-2005-7, In re Adoption of 2005 Revisions to Oklahoma Uniform Jury Instructions
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • July 28, 2005
    ...released from prison. The Court of Criminal Appeals gave the following advice to trial courts in Littlejohn v. State, 2004 OK CR 6, ¶ 11, 85 P.3d 287, 293-94, on how to respond to such requests:+» «+Therefore, in future cases where the jury during deliberations asks, in some form or fashion......
  • Question Submitted by Jenks, 101012 OKAG, 2012 OK AG 17
    • United States
    • Oklahoma Oklahoma Attorney General Opinions
    • October 10, 2012
    ...that a limitation on the parole power does not also extend to the separate commutation and pardoning powers. See also Littlejohn v. State, 85 P.3d 287, 303 (Okla. 2004) (Lumpkin, J., concurring) ("[G]iving the jury any additional information as to the meaning of life without parole is ......
  • Request a trial to view additional results
43 cases
  • Bennett v. Pima County Community College District, 102816 AZAPP2, 2 CA-CV 2016-0019
    • United States
    • Arizona Court of Appeals of Arizona
    • October 28, 2016
    ...a 'decision on an improper basis, such as emotion, sympathy, or horror.'" Shotwell 207 Ariz. 287, ¶ 34, 85 P.3d at 296, quoting State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). The trial court expressed concern about a portion of the report a......
  • In re Adoption of 2005 Revisions to Oklahoma Uniform Jury Instructions, 072805 OKCRI, 2005 OK CR 12
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • July 28, 2005
    ...released from prison. The Court of Criminal Appeals gave the following advice to trial courts in Littlejohn v. State, 2004 OK CR 6, ¶ 11, 85 P.3d 287, 293-94, on how to respond to such requests: Therefore, in future cases where the jury during deliberations asks, in some form or fashion, wh......
  • 119 P.3d 753 (Okla.Crim.App. 2005), CCAD-2005-7, In re Adoption of 2005 Revisions to Oklahoma Uniform Jury Instructions
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • July 28, 2005
    ...released from prison. The Court of Criminal Appeals gave the following advice to trial courts in Littlejohn v. State, 2004 OK CR 6, ¶ 11, 85 P.3d 287, 293-94, on how to respond to such requests:+» «+Therefore, in future cases where the jury during deliberations asks, in some form or fashion......
  • Question Submitted by Jenks, 101012 OKAG, 2012 OK AG 17
    • United States
    • Oklahoma Oklahoma Attorney General Opinions
    • October 10, 2012
    ...that a limitation on the parole power does not also extend to the separate commutation and pardoning powers. See also Littlejohn v. State, 85 P.3d 287, 303 (Okla. 2004) (Lumpkin, J., concurring) ("[G]iving the jury any additional information as to the meaning of life without parole is ......
  • Request a trial to view additional results