Littlejohn v. State

2008 OK CR 12, 181 P.3d 736, 2008 Okla. Crim. App. LEXIS 9, 2008 WL 786516
CourtCourt of Criminal Appeals of Oklahoma
DecidedMarch 26, 2008
DocketD-2005-237
StatusPublished

This text of 2008 OK CR 12 (Littlejohn v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Littlejohn v. State, 2008 OK CR 12, 181 P.3d 736, 2008 Okla. Crim. App. LEXIS 9, 2008 WL 786516 (Okla. Ct. App. 2008).

Opinions

OPINION

C. JOHNSON, Vice-Presiding Judge.

T1 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 ©.8.2001, § 701.7(B)) (Count 1) and Conspiracy to Commit Robbery with Firearms (21 §§ 421, 801) (Count 2). As to Count 1, The State sought the death penalty and alleged three aggravating circumstances [739]*739in 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 (8) 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 cireumstances and recommended a sentence of death. Appellant was formally sentenced on March 2, 2005.

T2 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 eriminally liable for both conspiracy and felony murder.

13 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 erime, 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 seene 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 .88-caliber gunshot wound.2

T4 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. Gal-breath heard Macklin tell Appellant that he shot Rogers because Rogers managed to get a good look at his face. According to Gal breath, 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 Gal-breath's apartment and retrieved the guns.

T5 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, [740]*740attempted 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.

T6 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, 189 P.3d 907, 928.

1 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 eriminal act thoroughly results from the common enterprise, or where the connection between them is reasonably apparent.

19 Appellant claims this instruction permitted the jury to "short-cireuit" 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, ie., 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.

110 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 clement of the offense. See generally Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 89 (1979) (disapproving of instruction requiring jury to presume that "a person intends the ordinary consequences of his voluntary acts").

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Littlejohn v. State
2008 OK CR 12 (Court of Criminal Appeals of Oklahoma, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2008 OK CR 12, 181 P.3d 736, 2008 Okla. Crim. App. LEXIS 9, 2008 WL 786516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/littlejohn-v-state-oklacrimapp-2008.