Littlejohn v. State

• Decision Date: 31 December 1998
• Docket Number: No. F-94-1269.,F-94-1269.
• Parties: Emmanuel Antonia LITTLEJOHN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

989 P.2d 901

1999 OK CR 75

Emmanuel Antonia LITTLEJOHN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-94-1269.

Court of Criminal Appeals of Oklahoma.

December 31, 1998.

James T. Rowan, and Debbie Maddox, Oklahoma Indigent Defense System, Capital

Litigation Division, Norman, OK, for defendant at trial.

Sandra Howell Stensaas, Pattye Wallace, Assistant District Attorneys, Oklahoma City, OK, for the state at trial.

Anne M. Moore, Division Chief, Capital Direct Appeals Division, Oklahoma Indigent Defense, Norman, OK, for defendant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, OK, for appellee on appeal.

OPINION

JOHNSON, Judge.

¶ 1 Emmanuel Antonia Littlejohn was tried by a jury in the District Court of Oklahoma County, Case No. CF-92-3633 before the Honorable Charles L. Owens. Littlejohn was convicted of Robbery with a Firearm, After Conviction of Two or More Felonies (Count I), First Degree Malice Aforethought Murder (Count II) and Conspiracy to Commit Robbery with a Firearm, After Conviction of Two or More Felonies (Count III). After finding the existence of three aggravating circumstances — Littlejohn had previously been convicted of felonies involving the use or threat of violence to the person; Littlejohn knowingly created a great risk of death to more than one person; and Littlejohn posed a continuing threat to society — the jury set punishment at three hundred (300) years for the robbery, death for the murder, and ninety-nine (99) years for the conspiracy. The trial court sentenced Littlejohn accordingly. Littlejohn now appeals.

¶ 2 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 Kenneth Meers were working in the store. Meers was killed as Littlejohn and Bethany were exiting the store.

ISSUES RELATING TO COMPETENCY

¶ 3 Prior to trial, Littlejohn challenged his competency to stand trial and a post-examination competency jury trial was conducted. Pursuant to the statute in effect at the time, Littlejohn was required to prove his incompetence to stand trial by "clear and convincing evidence." 22 O.S.1991, § 1175.4(B). In Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), the United States Supreme Court held this standard violates a defendant's right to due process, and that the proper standard is a preponderance of the evidence. Pursuant to Cooper, this Court remanded this matter to the District Court of Oklahoma County to determine (1) whether it was feasible to conduct an appropriate retrospective competency hearing, and (2) if so, to conduct the hearing using the correct standard.¹ Littlejohn stipulated on remand that it was feasible to conduct a retrospective competency hearing, and on October 20-24, 1997, the Honorable Charles L. Owens conducted a retrospective post-evaluation competency jury trial. The jury found that Littlejohn had not proven by a preponderance of the evidence that he was incompetent to stand trial in November, 1994.

¶ 4 Littlejohn submitted a brief containing seven supplemental propositions of error based on his retrospective competency proceedings. In Supplemental Proposition I, Littlejohn contends the trial court abused its discretion by denying Dr. G. Barry Robbins, D.O., pretrial access to Littlejohn for the purpose of conducting tests that were critical to the development of Littlejohn's theory of incompetency. On September 18, 1997, Littlejohn filed a motion requesting that Stephen Carella, Ph.D., Eugene Reynolds, Ph.D., and Dr. G. Barry Robbins, D.O., be permitted to examine and conduct tests on him at the Oklahoma County Jail. Littlejohn further requested that Dr. Robbins be permitted to perform an electroencephalogram (EEG) on Littlejohn at a location suitable to the court. On October 1, 1997, the trial court granted Littlejohn's motion with regard to Drs. Carella and Reynolds. However, Dr. Robbins was denied access to Littlejohn and was refused permission to conduct an EEG. The record is silent as to the trial court's rationale.

¶ 5 In spite of the trial judge's ruling, Dr. Robbins testified at the competency trial. Dr. Robbins' testimony was based on his review of numerous documents and records pertaining to Littlejohn. Dr. Robbins opined Littlejohn suffered "some neurological injury from birth." While Littlejohn understood the charges against him, Dr. Robbins concluded Littlejohn was unable, due to neurological damage, to assist his counsel in any meaningful way.

¶ 6 Citing Frederick v. State, 1995 OK CR 44, 902 P.2d 1092, 1096, Littlejohn asserts on appeal that he was denied his due process right to the assistance of a competent expert at trial as Dr. Robbins was unable to support his opinion with the necessary neurological test. He further argues this error rendered his retrospective competency determination fatally defective. While it is unclear why Dr. Robbins was precluded from examining Littlejohn and performing an EEG, we find any error which may have occurred in this regard was harmless beyond a reasonable doubt.²

¶ 7 The jury was charged with determining Littlejohn's competency on or about the 7th day of November, 1994, through the 18th day of November, 1994. Four experts testified at Littlejohn's retrospective competency hearing.³ Three of these experts had examined Littlejohn during the relevant time frame. Dr. Robbins was the only expert who had not previously examined Littlejohn. In any event, Robbins was able to testify and form an opinion based upon numerous records and documents which had been provided to him. These records included reports prepared by Dr. Edith King, Ph.D. and Dr. Carella. Although Dr. Robbins was the only neurologist to testify, an interview with Littlejohn conducted in 1997 would have been less probative than those conducted near the relevant time period. Moreover, had an EEG ultimately uncovered neurological damage, such damage would not have automatically rendered Littlejohn incompetent to stand trial in 1994. See Walker v. State, 1992 OK CR 10, 826 P.2d 1002, 1005-06,

cert. denied, 506 U.S. 898, 113 S.Ct. 280, 121 L.Ed.2d 207 (an organic brain dysfunction does not automatically mean petitioner was incompetent to stand trial).

¶ 8 During the retrospective competency hearing, Littlejohn conceded he understood the nature of the charges and proceedings brought against him. Littlejohn's incompetency claim went specifically to his ability to assist his attorneys. Although Littlejohn was a difficult client at times,⁴ the evidence overwhelmingly demonstrated he was able to assist counsel in his defense and was competent to stand trial in November of 1994. The most compelling evidence comes from Littlejohn's ability to testify for three and a half hours during his 1994 trial. During this testimony, Littlejohn did not seem "confused or baffled or unfocused in any way." Thus, under the circumstances of this case, actual proof of brain damage would not have altered the jury's verdict. Any error resulting from the trial court's restrictions on Dr. Robbins was harmless beyond a reasonable doubt.

¶ 9 We find it troubling, however, that the State improperly attempted to gain an advantage from Dr. Robbins' inability to visit Littlejohn in the county jail. During cross-examination, the State attempted to impeach Dr. Robbins because he had failed to conduct some type of competency evaluation on Littlejohn.⁵ Moreover, during closing arguments, the State again noted Dr. Robbins' failure to interview Littlejohn and conduct tests. This argument was clearly inappropriate. The trial court's October 1, 1997 order plainly denied Dr. Robbins access to Littlejohn in the county jail. Nevertheless, in light of the strong evidence of competency, we find this error was harmless. Littlejohn's first supplemental proposition of error is denied.

¶ 10 Littlejohn asserts in Supplemental Proposition II that prosecutorial misconduct during the retrospective competency proceeding violated his due process rights and deprived him of a fundamentally fair proceeding. He raises four separate allegations of misconduct. Littlejohn failed to properly object to the challenged arguments contained in his first two allegations. Thus, as to these allegations, Littlejohn has waived all but plain error. See Toles v. State, 1997 OK CR 45, 947 P.2d 180, 193,

cert. denied, 524 U.S. 958, 118 S.Ct. 2380, 141 L.Ed.2d 746 (1998). Upon careful review, we find no plain error occurred.

¶ 11 As to the remainder of this proposition, Littlejohn first contends the State sponsored false and/or misleading testimony that went uncorrected. Littlejohn specifically attacks Sandra Elliott's testimony that she had been instructed by the trial court not to mention the first competency trial held in May 1994. Littlejohn argues the court's admonishment referred to "verdicts" at the 1994 murder trial. Upon review, we find the trial court's admonishment was not that precise. The trial judge simply stated, "I certainly trust we'll not get into anything about the verdict of the trial and this sort of thing." It is unclear whether the trial court was referring to Littlejohn's 1994 competency trial or his 1994 murder trial. It is reasonable to assume the trial court would have wanted Ms. Elliott to avoid testifying regarding the verdicts of either proceeding. Under these circumstances, Littlejohn has failed to demonstrate that the State knowingly used false testimony. See Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 307

.⁶ We further find the challenged testimony was not material to the jury's competency determination.

¶ 12 Littlejohn next asserts the prosecutor attempted to introduce testimony she knew, or should have known, was inadmissible. During cross-examination of Melody Brannon, the State inquired, ...