Francis v. State

• Decision Date: 16 December 2020
• Docket Number: CR-18-1090
• Parties: Lionel Rory Francis v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Lionel Rory Francis v. State of Alabama

CR-18-1090

Alabama Court of Criminal Appeals

OCTOBER TERM, 2020-2021

December 16, 2020

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Madison Circuit Court

(CC-17-3377)

WINDOM, Presiding Judge.

Lionel Rory Francis was indicted for capital murder in the shooting death of his 20-month-old daughter, Alexandria Francis. Francis was convicted of murder made capital for the intentional killing of a victim who was less than 14 years of age, see § 13A-5-40(a)(15), Ala. Code 1975. The jury, by a vote of 11 to 1, recommended that Francis be sentenced to death. The Madison Circuit Court accepted the jury's recommendation and sentenced Francis to death.

Facts

Emergency personnel responding to an emergency call on the evening of May 27, 2016, to report the shooting of a 20-month-old child at a house Francis shared with his girlfriend, Ashley Ross, found Francis calmly sitting on the curb and smoking a cigarette. Brandon Frazier, a driver and engineer for the Huntsville Fire Department, testified that it was as though Francis were "waiting for a ride." (R. 739.) Officer Gerald Gambino of the Huntsville Police Department approached Francis, who matched the description of the suspect given in the emergency call, and placed him in handcuffs. Francis responded: "I invoke my rights." (R. 749.)

Frazier hurried toward the house past Francis, whose dispassionate mien contrasted sharply with Ross's frenzy. Frazier testified that Rosswas screaming "He shot my baby!" (R. 740.) Ross hurriedly directed the first responders to a bedroom where Alexandria was lying on the floor in a narrow gap between the bed and a wall. Alexandria was unresponsive but had a slight pulse; a gunshot wound to the left side of her forehead was readily apparent. Frazier carried Alexandria outside to a waiting paramedic. Alexandria was rushed to the hospital, where she died as a result of the gunshot wound.

Dr. Valerie Green, state medical examiner with DFS, described the gunshot wound to Alexandria's forehead as "a star-like pattern, gaping, [and] open," with "areas of soot and searing ... along the edges of the wound." (R. 851-52.) According to Dr. Green, this indicated that the wound was a hard-contact gunshot wound, which is created when the barrel of a gun is placed on the skin with some pressure.

Investigator Richard Eason of the Huntsville Police Department obtained a statement from Francis within an hour of the shooting. Francis told Inv. Eason that the shooting had been accidental: "I went in the room to put my gun underneath the mattress where I keep it at. And Alexandria ran up and when I pulled the gun back to try to get it out theway, it went off." (State's Exhibit 10, 13:58.) Inv. Eason aptly described Francis as emotionless.

Ross offered little in the way of an explanation for Francis's shooting Alexandria. Ross testified that Francis had never been physically abusive nor had he ever threatened her with a weapon. Ross acknowledged that there had been an argument earlier that day about the couple's finances, but she saw it as a relatively trivial matter. Overall, Ross had considered Francis to be a good boyfriend and a caring father.

Although Ross struggled to conjure a motive for Francis's actions, her testimony provided the jury with clarity regarding his intent. Ross testified that, on the day of the shooting, she had just taken a shower and was in her bedroom getting dressed. Alexandria was in the bedroom as well, playing with the bedroom door. Ross noticed Francis quietly enter the bedroom and assumed he intended to take a nap. Ross testified that as she put on her shirt, she heard the cock of a pistol and then a gunshot. Ross turned to see Alexandria lying on the ground and rushed to her side. Ross asked Francis what he had done, and Francis responded: "Now yougot to live with what you made me do." (R. 813.) Francis then turned and walked out of the bedroom.

After Ross telephoned emergency 911, she confronted Francis in the living room. She asked Francis, "So you just going to kill us? You going to kill your family?" (R. 814.) Francis answered: "I'm not going to kill you, but I will not have a baby by you." Francis placed the pistol on an end table in the living room and walked outside, where emergency personnel found him sitting on the curb smoking a cigarette.

Standard of Review

Because Francis has been sentenced to death, this Court applies the plain-error standard of review set out in Rule 45A, Ala. R. App. P., which requires that

"[i]n all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

The Alabama Supreme Court has explained:

" ' "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's 'substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations." ' Ex parte Bryant, 951 So. 2d 724, 727 (Ala. 2002) (quoting Hyde v. State, 778 So. 2d 199, 209 (Ala. Crim. App. 1998)). In United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

" 'The Rule authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady, 456 U.S. 152, 163 (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. [157], at 160 [(1936)]. In other words, the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S., at 163, n.14.'

"See alsoEx parte Hodges, 856 So. 2d 936, 947-48 (Ala. 2003) (recognizing that plain error exists only if failure to recognize the error would 'seriously affect the fairness or integrity of the judicial proceedings,' and that the plain-error doctrine is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result' (internal quotation marks omitted))."

Ex parte Brown, 11 So. 3d 933, 938 (Ala. 2008).

Discussion

I.

A defendant convicted of capital murder is eligible to be sentenced to death only if the jury unanimously finds that the State has proven beyond a reasonable doubt the existence of at least one aggravating circumstance listed in § 13A-5-49, Ala. Code 1975. Ex parte Waldrop, 859 So. 2d 1181, 1187 (Ala. 2002). In this case the State offered evidence of only one aggravating circumstance - "The defendant was previously convicted of another capital offense or a felony involving the use or threat of violence to the person." § 13A-5-49(2), Ala. Code 1975.¹ The State specifically asserted that Francis had been convicted of a felony involving the use or threat of violence to the person. In Issues II, III, IX, and X ofthe appellant's brief, Francis challenges, in one manner or another, the application of this aggravating circumstance.

Whether Francis had been convicted of a felony involving the use or threat of violence to the person would appear, on its face, to be a rather straightforward inquiry; not so in this case, however, due to an unusual aspect of North Dakota's sentencing scheme. On April 5, 2007, Francis was charged in Cass County, North Dakota, by way of information, which stated:

"The Cass County State's Attorney charges that the above-named defendant(s) committed the following offense in Cass County, North Dakota:

"Count 1(a): AGGRAVATED ASSAULT in violation of N.D.C.C. § 12.1-17-02 in that on or about 11 February 2007 the above-named defendant willfully caused serious bodily injury to another human being, or, caused bodily injury or substantial injury to another human being while attempting to inflict serious bodily injury on any human being, to wit: that on or about the above-stated date, the defendant, LIONEL RORY FRANCIS, punched M.C.J. ... in the head in a parking lot at the Bowler at 2630 South University Drive in Fargo and/or kicked M.C.J. ... in the head while M.C.J. ... was on the ground as a result of which M.C.J. ... suffered physical pain and lost at least two teeth.

"Or, in the alternative,Count 1(b): ACCOMPLICE TO AGGRAVATED ASSAULT in violation of N.D.C.C. §§ 12.1-03-01 & 12.1-17-02 in that on or about 11 February 2007 the above-named defendant, with intent that an offense be committed, commanded, induced, procured, or aided another to willfully cause serious bodily injury to another human being, or cause bodily injury or substantial injury to another human being while attempting to inflict serious bodily injury on any human being to wit: that on or about the above-stated date, the defendant, LIONEL RORY FRANCIS, helped Franklin Roosevelt Hinkston, Jr., to commit the offense alleged in Count One."

(C. 70.)

The information indicated that the offenses were charged as Class C felonies.² On October 16, 2007, Count 1(a) was dismissed and Francis pleaded guilty to Count 1(b), accomplice to aggravated assault; yet, under North Dakota law, because the Cass County District Court sentenced Francis to only 189 days in jail, Francis was deemed to have been convicted of a misdemeanor. (C. 538.) At the time of Francis's offense, N.D. Cent. Code § 12.1-32-02(9) stated, in relevant part, that "[e]xcept asprovided in section...