Toles v. State, F-94-1145

Decision Date22 August 1997
Docket NumberNo. F-94-1145,F-94-1145
Citation947 P.2d 180,1997 OK CR 45
Parties1997 OK CR 45 Bryan Anthony TOLES, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

LANE, Judge:

Bryan Anthony Toles, Appellant, was tried by jury for the crimes of Murder in the First Degree (Counts I and II) (21 O.S.1991, § 701.7(A)); Conspiracy to Commit Robbery After Former Conviction of a Felony (Count V) (21 O.S.1991, § 421); Attempted Robbery with Firearm (Count VI) ( 21 O.S.1991, § 797); and Possession of a Weapon After Former Conviction of a Felony (Count VII) (21 O.S.1991, § 1283) in Comanche County District Court Case No. CRF-93-241. The jury acquitted Toles of Count VI and returned guilty verdicts on each of the other counts.

The jury found four aggravating circumstances: 1) the defendant knowingly created a great risk of death to more than one person; 2) the murder was especially heinous, atrocious or cruel; 3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and 4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(2), (4), (5), (7). The jury then recommended a sentence of death on each of the murder counts, twenty years imprisonment for the conspiracy, and ten years imprisonment for the possession of a weapon after former conviction of a felony. The trial court imposed each of the recommended sentences. Mr. Toles has perfected his original appeal to this Court, and we affirm judgment and sentence.

FACTS

The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, began shortly after midnight on July 16, 1993. Bryan Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's driveway, so they had to get the keys.

Toles rang the doorbell while Young and Flowers hid around the corner and put bandannas over their faces outlaw-style. Young had already loaded a .22 revolver and given it to Toles.

Toles pushed his way into the home when Lonnie opened the door. He pointed the pistol at Lonnie and told him to get down and shut up. Young and Flowers went down the hall toward the bedrooms. Norma Franceschi heard the commotion and met them in the hall. She screamed for her husband and continued toward the front door. Juan Franceschi struggled briefly with Young and Flowers in the hall and joined his wife. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm.

Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He aimed at Mr. Franceschi's head, but before he could fire, Mrs. Franceschi grabbed his arm. Thinking that Mr. Franceschi could identify him, and that he "might as well go ahead and kill him," Toles aimed at Franceschi's chest and shot. Even though he was shot, Franceschi fought with Toles in the hallway. Toles' pants became soaked with Franseschi's blood during the fight. Mrs. Franceschi escaped to their grown daughter's bedroom, hiding first in the closet, and then in the drawer of a waterbed. She heard someone come into the room and leave.

Meanwhile Lonnie Franceschi was still kneeling on the floor near the front door with his hands behind his back. Toles saw Lonnie on his way out of the house and thought, "damn, there's still him left." Realizing Lonnie could identify him, Toles turned, extended his arm so the barrel of the pistol was about six inches from the back of Lonnie's head, and fired.

After Toles, Young and Flowers left, Lonnie went to his bedroom and got in bed. His mother heard him crying and gasping for air. When she tried to call 911 from the back bedroom, she discovered the phone was dead and ran to a neighbor's home to call. Paramedics arrived shortly and placed Lonnie on life support. Juan Franceschi died while the paramedics worked on him. Later that day Lonnie was declared brain dead, removed from life support and allowed to die.

After they left the Franceschi home, Toles, Young and Flowers walked two blocks to the home of a friend who gave them a ride to Herbie Foster's. Toles gave his bloody clothes to a runaway girl who was staying there and told her to burn them. He called a family friend and told her and her boyfriend that he shot two people. He then spent the night at the home of another friend. He was arrested later that afternoon while he was talking to his mother on a pay phone at the corner of 17th Street and Gore in Lawton.

SUFFICIENCY OF THE INFORMATION

Toles was charged with first degree, malice aforethought murder by Information which used the term "premeditated design." He asserts in his first proposition of error the Information is fatally defective for the term "malice aforethought" must be used to charge malice murder. Toles argues his case is controlled by Pickens v. State, 885 P.2d 678, 683-84 (Okl.Cr.1994), overruled on other grounds by Parker v. State, 917 P.2d 980 (Okl.Cr.1996). In that case the charging paragraph contained the language "premeditated design" as well as language associated with felony murder. As a result the charging paragraph did not clearly charge either felony murder or malice aforethought murder. This defect was fatal.

Careful reading of Pickens makes clear the term "premeditated design" does not, in itself, create a defect. The Pickens defect was the irreconcilable confusion as to what crime was charged. No confusion as to the crime charged exists in the Information filed in Mr. Toles' case. The meaning of the charging paragraph is clear--it charges Toles with malice aforethought murder. There is no error here.

JURY SELECTION

Toles raises two issues concerning the removal of veniremen for cause in his fifth proposition of error. He claims the trial court erred by removing venireman Pacheo, and by not removing venireman Pyles.

Removal for cause is proper when a venireman is unable to perform the duties of a juror in accordance with the court's instructions and the jurors' oath. Knighton v. State, 912 P.2d 878, 885 (Okl.Cr.1996); See Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Venireman Pacheo told the court, "... I don't think that--I don't want the responsibility of having to decide whether someone lives or dies." The trial judge asked whether it was "too awesome of a responsibility" for him, and he replied, "For me, personally." The prosecutor asked, "Are there any circumstances under which you would give the death penalty in a murder first case?", and he replied, "I don't know. It's just a decision that I really do not want to have to make...." The prosecutor asked whether he could agree to a verdict imposing the death penalty without doing violence to his conscience, and he replied, "No." The trial court then removed him for cause.

Toles seizes the "violence to the conscience" language to argue venireman Pacheo was removed under an unconstitutionally low standard for mere conscientious objections to the death penalty. See Mayes v. State, 887 P.2d 1288, 1297 (Okl.Cr.1994), cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995); See Witt, 469 U.S. at 420-421, 105 S.Ct. at 850. The persuasive force of this argument is dissipated by the facts of the case.

Pacheo did not communicate a mere conscientious objection to the death penalty, he communicated a strong aversion to being placed in a position to decide, and he communicated the inability to impose the death penalty. Removal for cause of this venireman who could not follow the instructions of the court was proper. Witt, 469 U.S. at 424, 105 S.Ct. at 852.

Venireman Pyles was not removed for cause despite the fact her husband left her the day before, and she had lost her job two weeks earlier. She said she could not pay attention to the trial. When defense counsel asked her whether she would like someone in her frame of mind sitting on the jury if she were the defendant, she replied, "No." The trial court then asked Pyles if she could follow the court's instructions. When she replied she could, the trial judge denied the defense challenge for cause.

One is hard pressed to imagine circumstances more compelling for removal for cause. Pyles' promise to follow the court's instructions hardly cures the fundamental problem here; she could not keep her mind on the case given the chaos of her own life. Pyles should have been removed for cause, for in her present mental state she was not competent to serve as a juror.

Toles argues that because he was forced to remove Pyles with his last peremptory challenge, reversal is necessary for the jury panel was tainted with another unsatisfactory juror. Prior to challenging Pyles, defense counsel argued an additional "unsatisfactory juror" was also on the panel. Counsel did not name the juror or state why the juror was unsatisfactory. Our review of the record reveals nothing to suggest any seated juror was not competent. If the seated jury panel is competent, the fact the defendant had to use his peremptory challenge to achieve this result is irrelevant to a determination of constitutional error. Tibbs v. State, 819 P.2d 1372, 1378-79 (Okl.Cr.1991); Ross v. Oklahoma, 487 U.S. 81, 88 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988). There is no error here.

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