On Wednesday the Oklahoma Court of Criminal appeals vacated the death sentence of Keary Lamar Littlejohn. The Court held, simply, trial counsel should have known that their client was likely to lose and be convicted of capital murder; counsel needed to start thinking about the penalty phase long before they did. Specifically:
On October 12, 2007, the district court submitted a detailed document entitled, “Agreed Findings of Fact and Conclusions of Law,” approved by counsel for both parties. Given the State’s position on this claim, we need not present Appellant’s argument in great detail. Essentially, he claims that trial counsel did not devote sufficient time and attention to developing a persuasive mitigation strategy. Trial counsel presented only two witnesses in the mitigation phase of the trial, Appellant and his mother. According to the stipulated facts, Appellant conducted no further investigation into other sources of mitigating evidence, nor did he adequately prepare either Appellant or his mother before they testified. The parties stipulated that, had trial counsel conducted a reasonably adequate investigation, he would have discovered a number of mitigating factors that might have affected the jury’s choice of sentence, including: (1) that according to school records, Appellant, while not mentally retarded, suffered from a low I.Q. and attended special education classes; (2) that Appellant grew up in an environment of domestic abuse involving his mother and his step-father; (3) that during Appellant’s teenage years, his stepfather began selling crack cocaine, and his mother began using crack cocaine; (4) that Appellant did not learn that his stepfather was not his biological father until he was a teenager, and that he subsequently quit school, left home, and began getting into trouble; (5) that according to a friend of Appellant’s family, who saw Appellant shortly after Gregory Rogers’s murder, Appellant was so upset and remorseful about what had happened that he threatened suicide.
¶27 Appellant was entitled to the effective assistance of counsel at trial. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We begin with the presumption that counsel’s efforts were adequate, and that counsel’s decisions were part of a sound trial strategy. Id. at 689, 104 S.Ct. at 2065; Andrew v. State, 2007 OK CR 23, ¶ 96, 164 P.3d 176, 198. To prevail on a claim that counsel was ineffective, Appellant must demonstrate that counsel’s efforts and decisions were professionally unreasonable – so unreasonable as to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Andrew, 2007 OK CR 23 at ¶ 97, 164 P.3d at 198. In capital cases, the constitutional guarantee to reasonably effective counsel includes the right to a reasonably adequate investigation into potential mitigation evidence – evidence which might convince a jury that a sentence of death is not appropriate. In recent years, the Supreme Court has issued a number of decisions applying the Strickland standards to the unique responsibilities in preparing a capital mitigation case. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Likewise, this Court has applied Strickland in the context of capital mitigation investigations, and granted relief when those investigations proved wanting. Malone v. State, 2007 OK CR 34, ¶¶ 101-113, 168 P.3d 185, 223-29; Marquez-Burrola, 2007 OK CR 14 at ¶¶ 42-61, 157 P.3d at 763-68. While each of these cases obviously presents a unique set of facts, their common theme is that, generally speaking, an uninformed capital mitigation strategy is not a sound one. To paraphrase the Supreme Court in Strickland, counsel’s strategic decisions are entitled to deference, but only in proportion to the amount of reasonable investigation behind them. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.
¶28 The supplementary materials submitted by Appellant raise substantial questions about trial counsel’s effectiveness in the capital sentencing stage. We observe that, in light of the felony-murder doctrine, Appellant’s voluntary confession to police about his involvement in the robbery essentially foreclosed any issue of Appellant’s guilt. This was a trial about punishment and nothing more, and the record indicates that counsel was well aware of that fact. Trial counsel could have, and should have, focused his energies on developing a more extensive mitigation case. On remand, the State conceded that trial counsel’s performance in this regard was professionally unreasonable, and could have affected the jury’s decision to impose the death sentence. In its findings of fact and conclusions of law, the trial court carefully evaluated the three aggravating circumstances found by the jury and, assuming the evidence was sufficient to support them, the court nevertheless concluded that the available but unused mitigation evidence could have made a difference in the jury’s ultimate sentencing decision. While this Court makes the ultimate determination of whether trial counsel’s deficient performance warrants relief, we give great deference to the trial court’s findings on the issue, and review only for an abuse of discretion. Patterson v. State, 2002 OK CR 18, ¶ 19, 45 P.3d 925, 930; Rule 3.11(B)(3)(b)(iv), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007). The record and detailed findings before us support the trial court’s conclusions. We therefore VACATE the sentence of death imposed in Count 1 and REMAND FOR RESENTENCING. Our resolution of this claim renders Appellant’s other claims relating to the capital sentencing phase of the trial moot.