Francis v. State

• Decision Date: 17 November 2014
• Docket Number: No. S14A0877.,S14A0877.
• Parties: FRANCIS v. The STATE.
• Court: Georgia Supreme Court

296 Ga. 190

766 S.E.2d 52

FRANCIS

v.The STATE.

No. S14A0877.

Supreme Court of Georgia.

Nov. 17, 2014.

Teresa Lynn Smith, Covington, for Appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., Atlanta, Layla Hinton Zon, Dist. Atty., Melanie McCrorey Bell, Asst. Dist. Atty., Covington, for Appellee.

Opinion

HUNSTEIN, Justice.

Appellant Thomas Marlin Francis was convicted by a jury of murder and related offenses for the October 31, 2006 shooting death of his wife, Denise Michele Francis. Francis appeals the denial of his amended motion for new trial, contending that the evidence was insufficient for a jury to find him guilty; the trial court erred by denying his motion to suppress his custodial statement and refusing to give specific jury charges; and his trial counsel rendered ineffective assistance. Finding no error, we affirm.¹

Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. By 2006, Francis had been married to his wife for approximately five years, and they had a tumultuous relationship. The night before the shooting, Francis and his wife had argued, and they slept in separate bedrooms. The next morning, Francis got dressed, heard his wife in the master bathroom, and carried a loaded gun to the master bathroom. When his wife saw the gun in his hand, she jumped up, overturned the stool on which she had been sitting, picked up a knife off the bathroom counter, and backed away from Francis. Francis shot her two times from approximately three feet away. Francis walked to the living room, but then returned to the master bathroom, where he found his wife on the floor talking on the phone with 911. His wife told the 911 operator that her husband had shot her and was kicking her. Francis pushed the phone with his foot out from under her ear, put the phone up to his ear, heard nothing, and hung up. He ripped the phone cord out from the back of the phone. His wife moved, and Francis shot her again in the back of the head. A 911 operator returned the call to Francis' home, and Francis eventually answered, telling the operator that he had shot his wife and that she had a knife. When officers arrived at the scene, they found the victim, deceased and lying in the doorway of the master bathroom. They also found a gun with the clip removed lying on a sofa in the living room. Francis testified that he killed his wife because he was scared of her. He also told officers that he was “glad he shot her. Because she was mean and vindictive as hell and would not leave things alone.”

The medical examiner testified that the victim sustained one gunshot wound

to the mouth and one to the chest, neither of which would have been immediately lethal. She also sustained a gunshot wound

to her head, which passed through her brain stem, and would have caused her death instantaneously. Although the medical examiner testified that he could not determine the sequence of the gunshots, in his expert opinion, the victim would have been able to make a phone call after suffering the shots to her mouth and chest, but she would not have been able to do so after the shot to her head.

Investigators found a knife at the entrance to the master bathroom. According to a GBI investigator, no blood or fingerprints were found on the knife, and due to the blood spatter patterns, he believed the knife was placed on the ground after the shooting had occurred. The investigator also opined that the victim was seated at the counter in the bathroom when she sustained the gunshot wound

to the mouth.

Several witnesses testified that they had observed Francis' wife verbally abuse him, although none had witnessed or learned of any physical abuse by his wife against him. Francis testified that several months before the shooting, his wife had cut him with a knife on his arms and thrown a hammer at him, but he had not mentioned these incidents to anyone because he was embarrassed. An expert for the defense testified that at the time of the shooting, Francis was suffering from post-traumatic stress disorder

(“PTSD”) and battered person syndrome (“BPS”), and therefore, he would not have been thinking logically at the time of the shooting. The expert opined further that she believed Francis was terrified that his wife was going to hurt or kill him. An expert for the State testified that at the time of the shooting, Francis would have understood the difference between right and wrong, and he was not delusional or dissociative.

1. Francis argues that the evidence was insufficient to convict him and that his mental state at the time of the shooting, which included suffering from BPS and PTSD, as well as his justification theory, acted as an absolute defense. He also contends that there was no evidence of any malice or criminal intent. We find that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Francis was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see also Vega v. State, 285 Ga. 32, 33(1), 673 S.E.2d 223 (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ”) (citation omitted). The court charged the jury on self-defense and justification, and it was within the province of the jury to assess the evidence and determine whether Francis acted in self-defense. See White v. State, 287 Ga. 713, 715(1)(b), 699 S.E.2d 291 (2010) (“the issues of witness credibility and justification are for the jury to decide, and the jury is free to reject a defendant's claim that he acted in self-defense”). Although Francis initially told officers that his wife pulled a knife on him first and then he shot her, he never testified at trial that his wife moved toward him with a knife. In fact, he testified at trial that after he entered the bathroom, she picked up a knife and backed away from him toward a corner of the bathroom. Additionally, the evidence showed that while his wife called for help, Francis kicked her, took the phone from her, ripped the phone cord out of the phone, and then fatally shot her in the back of the head. He also told officers that he was glad he had killed her. This is sufficient evidence to sustain a conviction for malice murder. See Williams v. Kemp, 255 Ga. 380, 385–386, 338 S.E.2d 669 (1986) (“[u]nder state law malice aforethought comprises two elements: intent to kill and the absence of provocation or justification”).

2. Francis contends that the trial court erred by refusing to give the jury (1) a voluntary manslaughter charge and (2) a specific BPS charge. “A trial court is required to give a requested charge on voluntary manslaughter if there is slight evidence showing that the victim seriously provoked the defendant, causing the defendant to kill the victim solely as the result of a sudden, violent, and irresistible passion, OCGA § 16–5–2(a).” Merritt v. State, 292 Ga. 327, 331(2), 737 S.E.2d 673 (2013) (punctuation omitted).

Though there was evidence of ongoing marital difficulties between [Francis] and [his wife] and past acts of violence committed by [his wife] against [Francis], there was no evidence of any specific provocation at or around the time of the murders such as would generate the “sudden ... and irresistible passion” necessary to support a conviction for voluntary manslaughter.

Russell v. State, 295 Ga. 899, 901(2), 764 S.E.2d 812 (2014) ; Nichols v. State, 275 Ga. 246, 246–47(2), 563 S.E.2d 121 (2002) (“fighting prior to a homicide ‘does not constitute the type of provocation that would warrant a charge of voluntary manslaughter’ ”). Moreover, even though Francis told officers that his wife had come into his room the night before the shooting and threatened to kill him, “ ‘words alone [generally] are not sufficient provocation to excite the passion necessary to give rise to voluntary manslaughter,’ ” and several hours had passed between his wife's confrontation and the shooting. Merritt, 292 Ga. at 331, 737 S.E.2d 673 (voluntary manslaughter charge not warranted where the defendant and his wife had argued the night before the killing). Finally, even under Francis' initial version of events—where he told officers that his wife “came at” him with a knife—“this evidence shows that [Francis] was attempting to repel an attack, not that he was so angered that he reacted passionately.” Bell v. State, 280 Ga. 562, 567(5)(a), 629 S.E.2d 213 (2006). Francis testified that he shot his wife because he was scared of her, and this statement “ ‘unequivocally shows that he was not angered or impassioned when [the] killing occurred.’ ” Davidson v. State, 289 Ga. 194, 196(2), 709 S.E.2d 814 (2011) (firing a gun out of fear to defend one's own life and the life of others did not show a shooting in the heat of passion sufficient to charge the jury on voluntary manslaughter).

With regard to BPS, the trial court gave the jury the pattern instruction on BPS and refused to give a supplemental charge requested by Francis because it was duplicative of the pattern charge.² “A trial court does not abuse its discretion in refusing to give a jury charge in the exact language requested when the charge given substantially covers the correct principles of law.” Gamble v. State, 291 Ga. 581, 582(2), 731 S.E.2d 758 (2012). After a review of the jury charges, we find that the trial court did not abuse its discretion in refusing to give the supplemental charge because the supplemental charge was substantially the same as the pattern charge. See Stewart v. State, 286 Ga. 669(6), 690 S.E.2d 811 (2010).

3. Francis argues that the trial court erred in denying his motion to suppress his custodial statement.

Whether a defendant waives his rights under Miranda^{[ 3 ]} and makes a voluntary and knowing

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