Littlejohn v. State

• Citation: 181 P.3d 736,2008 OK CR 12
• Decision Date: 26 March 2008
• Docket Number: No. D-2005-237.,D-2005-237.
• Parties: Keary Lamar LITTLEJOHN, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

181 P.3d 736

2008 OK CR 12

Keary Lamar LITTLEJOHN, Appellant v. STATE of Oklahoma, Appellee.

No. D-2005-237.

Court of Criminal Appeals of Oklahoma.

March 26, 2008.

An Appeal from the District Court of Oklahoma County; the Honorable Susan P. Caswell, District Judge.

John Albert, Attorney at Law, Oklahoma City, OK, and Michael McBride, Attorney at Law, Oklahoma City, OK, attorneys for defendant at trial.

Sandra Elliott, Assistant District Attorney, Oklahoma City, OK, attorney for The State at trial.

David Autry, Attorney at Law, Oklahoma City, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, attorneys for The State on appeal.

OPINION

C. JOHNSON, Vice-Presiding Judge.

¶ 1 Appellant, Keary Lamar Littlejohn, was charged in Oklahoma County District Court, Case No. CF-2002-2384, with the crimes of First Degree Felony Murder (21 O.S.2001, § 701.7(B)) (Count 1) and Conspiracy to Commit Robbery with Firearms (21 O.S.2001, §§ 421, 801) (Count 2). As to Count 1, The State sought the death penalty and alleged three aggravating circumstances in support: (1) the murder was committed for the purpose of avoiding arrest or prosecution; (2) Appellant created a great risk of death to more than one person; and (3) there existed a probability that Appellant would commit future criminal acts of violence that would pose a continuing threat to society. Jury trial was held January 24 through February 1, 2005 before the Honorable Susan P. Caswell, District Judge. The jury found Appellant guilty as charged on both counts, and recommended a sentence of ten years imprisonment and a $5000 fine on the conspiracy charge. As to the murder charge, after a separate sentencing proceeding the jury found the existence of all three aggravating circumstances and recommended a sentence of death. Appellant was formally sentenced on March 2, 2005.

¶ 2 Appellant was charged jointly with Kevin Macklin, Lewis Hamilton, and Vernon King in connection with the armed robbery and murder of Gregory Rogers, Jr., in front of an Oklahoma City convenience store on March 19, 2002. The State alleged that the four men conspired to commit an armed robbery, that they aided and abetted one another to steal Rogers's automobile at gunpoint, and that Rogers died of a gunshot wound during the commission of the robbery, thus making all four men criminally liable for both conspiracy and felony murder.

¶ 3 At trial, Appellant did not dispute that Rogers was killed in the commission of a robbery, nor did he deny that he was part of the robbery plan. His only strategy was to emphasize that he was not the triggerman. Several weeks after the crime, Appellant was arrested and interviewed by detectives. Appellant told the detectives that he and his three companions were driving around town when they saw Rogers's vehicle and decided to take it. Appellant admitted handing a .38-caliber handgun to Kevin Macklin to accomplish the robbery. He claimed that Lewis Hamilton handed a second handgun to Vernon King, and that Macklin and King then got out of the car and approached Rogers as he finished paying for gasoline and returned to his vehicle. A surveillance videotape from the convenience store, admitted into evidence at trial, showed two men accosting Rogers and attempting to force him into his own vehicle.¹ Appellant told police that when Rogers broke free and ran back toward the store, Macklin fired several shots at him. Macklin and King left the scene in Rogers's vehicle, while Appellant and Hamilton sped away in the car they had all arrived in. Rogers died at the scene from a single .38-caliber gunshot wound.²

¶ 4 Tashia Galbreath, one of Appellant's girlfriends, testified at trial that Appellant called her on the night in question and asked her to watch the evening news on television. She did, and saw a "breaking news" report about the robbery. A short time later, she said, Appellant and Hamilton came to her apartment, where they watched a replay of the news report. Appellant then received a call on his cell phone, and he and Hamilton left. They returned a short time later with King and Macklin, and the four men watched additional news coverage of the event. Galbreath heard Macklin tell Appellant that he shot Rogers because Rogers managed to get a good look at his face. According to Galbreath, the men wrapped their firearms up in a shirt and hid them in her closet. Several days later, Appellant, accompanied by Hamilton's girlfriend Lynlea Gentry, came to Galbreath's apartment and retrieved the guns.

¶ 5 The jury found Appellant guilty of both conspiracy and felony murder. In the capital-sentencing stage, the State presented evidence that Appellant had been involved in at least two other armed attempts to rob drivers of their vehicles, or "car-jackings," and that he and his co-defendants had, in fact attempted to rob another person of his vehicle just hours before they approached Gregory Rogers. Appellant testified in the sentencing stage, admitting complicity in the robbery plan but maintaining that he did not shoot Rogers. After hearing additional evidence in aggravation and mitigation of punishment, the jury recommended that Appellant be put to death for his involvement in Gregory Rogers's murder.

¶ 6 Appellant raises eighteen propositions of error. Because we find that Appellant's death sentence must be vacated, we address only those capital-sentencing issues that warrant relief. First, however, we address the issues related to the guilt-innocence stage of the trial.

¶ 7 In Proposition 1, Appellant claims the trial court erred in its instruction on the law of co-conspirator liability. Because Appellant makes his current objection for the first time on appeal, we review only for plain error. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.

¶ 8 The instruction at issue read:

When a conspiracy is entered into to do an unlawful act, the conspirators are responsible for all that is said and done pursuant to the conspiracy by their co-conspirators until the purpose has been fully accomplished. If two or more persons conspire to combine to commit a felony, each is criminally responsible for the acts of his associates and confederates in furtherance of common design, if the criminal act thoroughly results from the common enterprise, or where the connection between them is reasonably apparent.

¶ 9 Appellant claims this instruction permitted the jury to "short-circuit" its fact-finding duties, allowing it to convict him of felony murder merely by finding that he conspired to commit the robbery, and without specifically finding that he actively participated in the robbery itself. Appellant points out that a conspiracy to commit a crime is legally distinct from the completed crime, and that one may be guilty of conspiracy to commit a crime, regardless of whether he could be found guilty of the completed crime. He also points out that while armed robbery is a legal predicate for first-degree felony murder, conspiracy to commit armed robbery is not. Appellant contends that the trial court's instruction created an impermissible conclusive presumption, i.e., that anyone who even conspires to commit armed robbery is necessarily guilty of first-degree murder, if the robbery is in fact attempted and someone dies during that attempt.

¶ 10 It is fundamental to our system of justice that, before a conviction can be had, the State must prove, beyond a reasonable doubt, the facts comprising every element of the offense. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Instructions that force the jury to presume a particular result from a certain set of facts can violate due process, if doing so invades the jury's province of considering the sufficiency of the evidence as to each particular element of the offense. See generally Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (disapproving of instruction requiring jury to presume that "a person intends the ordinary consequences of his voluntary acts").

¶ 11 The jury was properly instructed that all persons who either commit acts constituting a crime, or who knowingly, and with criminal intent, aid and abet in the commission of the crime, are equally guilty as principals. The jury was also properly instructed that before it could find Appellant guilty of Robbery with a Firearm — and, hence, Felony Murder — it first had to find (1) that Appellant participated in the wrongful taking and carrying away of personal property belonging to another, through force or fear, by means of a firearm; and (2) that Appellant's own conduct formed an "inseparable part" of the robbery. 21 O.S.2001, §§ 172, 701.7(B), 801; OUJI-CR (2nd) Nos. 2-5, 2-6, 2-9, 4-64, 4-65.

¶ 12 Appellant's trial counsel conceded that the court's instruction was an accurate statement of the law; he simply complained that it was not taken from the Oklahoma Uniform Jury Instructions. Trial courts should use the Uniform Instructions whenever possible. Marquez-Burrola v. State, 2007 OK CR 14, ¶ 26, 157 P.3d 749 758. Yet, the scope of co-conspirator liability is not addressed by the Uniform Instructions. Compare OUJI-CR (2nd) Nos. 2-16 — 2-22 (conspiracy instructions) to OUJI-CR (2nd) No. 2-5 (addressing the scope of aider-and-abettor liability).³

¶ 13 The ultimate issue is whether the instructions, taken as a whole, fairly state the applicable law. Mitchell v. State, 2005 OK CR 15, ¶ 70, 120 P.3d 1196, 1214. The instruction complained of here did, in fact, accurately state the law on this important issue. See Hatch v. State, 1983 OK CR 47, ¶ 19, 662 P.2d 1377, 1382; Fox v. State, 1974 OK CR 120, ¶ 8, 524 P.2d 60, 63; Ex parte Hayes, 6 Okl.Cr. 321, 328, 118 P. 609, 612 (1911).⁴ The instruction did not require the jury to presume an element of the offense was automatically fulfilled. Compare Sandstrom, 442 U.S. 510, 99 S.Ct....