Francis v. State

• Decision Date: 27 December 2005
• Docket Number: No. WD 63589.,WD 63589.
• Parties: Reva Elaine FRANCIS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

183 S.W.3d 288

Reva Elaine FRANCIS, Appellant, v. STATE of Missouri, Respondent.

No. WD 63589.

Missouri Court of Appeals, Western District.

December 27, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 31, 2006.

As Modified January 31, 2006.

Application for Transfer Denied February 28, 2006.

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Kent E. Gipson, Kansas City, MO, for appellant.

Don Willoh, Kansas City, MO, for respondent.

Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.

PATRICIA BRECKENRIDGE, Judge.

Reva Francis appeals the denial of her Rule 29.15 post-conviction motion, following her conviction for second degree murder, 565.021, RSMo 2000, and armed criminal action, 571.015, RSMo 2000, in the death of her husband, Anthony Francis.¹ On appeal, Ms. Francis claims the motion court erred in denying her motion for post-conviction relief because she was not provided effective assistance of counsel. Specifically, Ms. Francis claims that trial counsel's failure to investigate and present expert testimony that Ms. Francis suffered from battered spouse syndrome at the time of the shooting denied her effective assistance of counsel. Additionally, Ms. Francis claims that she was denied effective assistance of counsel because her trial counsel promised the jury during opening statements that she would testify, but then rested her case without presenting her testimony. This court finds that the decision not to present the defense of battered spouse syndrome in favor of an accident defense was a reasonable decision based on trial strategy. Additionally, because of the unexpectedly limited nature of the State's case-in-chief, the decision to rest Ms. Francis' case without her testifying, as consented to by Ms. Francis, was reasonable trial strategy. The judgment of the motion court is affirmed.

Factual and Procedural Background²

In August 1998, Reva Francis was living with her husband, Tony, and her 18-year-old daughter, Roxanne Cummings, at their home near Raymore in Cass County. On the afternoon of August 18, Roxanne's boyfriend, Shane Ross, came to the house, planning to take Roxanne on a date. Shane and Roxanne were in Roxanne's bedroom talking and listening to the radio when Tony Francis came home at around 4 P.M. Roxanne briefly stepped out of the bedroom to greet her stepfather.

A short time later, Roxanne and Shane heard "something hit the wall," followed by a short pause and then a noise that "[s]ounded like a firecracker." After the first "pop," Roxanne said she heard her stepfather yell and then a very short time later another "pop." Roxanne estimated a couple of seconds passed between shots. Shane said he heard a shot, screaming, and then another shot. Upon hearing the shots, Shane and Roxanne went into the kitchen. They observed Tony Francis slumped over a chair.

Officer Tony Yates was the first to arrive at the scene of the shooting. After entering the house, Officer Yates saw Ms. Francis "standing inside the kitchen living room area." She appeared distraught, was shaking, and was standing about two and a half to three feet from the body of Tony Francis, which was slumped over a chair. There was a small pool of blood around the victim's head. Ms. Francis did not appear to have any blood on her body or clothing. Ms. Francis approached Officer Yates and told him "it was an accident [that] she accidentally shot her husband." The officer inquired where the gun was. Ms. Francis pointed to the floor. Officer Yates observed a .32-caliber semi-automatic handgun lying near a purse.

There was a hole in the side of the purse. Subsequent forensic tests showed that the muzzle of the gun was in contact with the wall of the purse at the time it was fired. Investigators also found a spent shell casing inside the appellant's purse and a second spent shell casing in a flowerpot near the kitchen sink. A checkbook was lying near Tony's head.

Officer Yates asked where the gun was when it went off, and Ms. Francis stated it was in her purse. She explained to him that "the gun went off in her purse through a struggle." Ms. Francis stated that she fired two shots: "there was one shot, some more arguing, then a second shot." Officer Yates testified that he believed Ms. Francis had indicated that there had been "[a] few seconds maybe" between the two shots, but he "really c[ould]n't recall" for certain.

Officer Dale Loney arrived at the scene shortly after Officer Yates. He advised Ms. Francis of her rights and she agreed to waive her rights and make a statement. Ms. Francis told Officer Loney "that she and her husband had been involved in an argument and that there was a struggle over her purse and there was a gun inside of her purse and that the gun went off." She further told Officer Loney that she and her husband were sitting at the kitchen table at the time the first shot was fired. According to Officer Loney, Ms. Francis stated: "There was a struggle over her purse, that he attempted to get her purse from her and that the weapon was in the purse and it went off accidentally." Officer Loney asked Ms. Francis on two separate occasions whether she had intentionally shot Tony. Both times she stated she did not. Officer Loney asked Ms. Francis if the argument had become physical. Ms. Francis said that it had not. Ms. Francis further stated that her husband had only become physical with her on one occasion — shortly after the couple was married. Officer Loney asked again whether there had been an altercation. Ms. Francis reasserted that she and her husband had had a verbal argument.

Ms. Francis was taken into custody. She was interrogated by Detective Denise Davidson and Captain Charles Stocking that evening for approximately six hours at the Cass County sheriff's office. Most of the interrogation was videotaped. After again waiving her rights, Ms. Francis made the following statement:

I came home around four p.m. Sunday night. We're s[i]tting . . . at the dining room table going over bills and [our] checkbook. . . . He called the secretary to go over bills and I explained to him that I didn't like the gun in the house and I was taking it to Anita's or Lanna's house. He got mad and tried to get the gun out of my purse and my hand was in there, too. Then, the gun went off. I stand up with the gun in my left hand and with the purse in my right hand. Tony fell over the table and onto the chair. The gun went off one more time in my hand. I dropped the gun and my purse and fell to the ground. I yelled at Shane to call the police.

At one point during the questioning, the police officers asked Ms. Francis to show them how the second shot had been fired. An officer testified that Ms. Francis told them that, "Tony fell over the chair. She had the gun in this hand, her hand on the right of the purse. She said, leave me the f—k alone, pointed the gun down and then did this motion [demonstrating] with her hand, indicating the gun went off another time." Detective Davidson testified that when Ms. Francis demonstrated how the gun discharged the second time, it appeared that "when [Ms. Francis] extended her arm out, she made a grasping motion with her hand, as if to fire the gun again." At one point during her interview with Captain Stocking, the subject of abuse was raised. Ms. Francis denied that her husband had abused her.

The autopsy revealed that Tony suffered gunshot wounds to the back of the head, left shoulder and chest, caused by two bullets. Gunpowder particles were on the victim's shirt where one bullet hit him in the chest. The bullet hit him above and to the outside of the left nipple, moving in a slightly downward direction from left to right, front to back. The bullet penetrated the left lung, the heart, and then the right lung before lodging under the skin. A separate bullet entered the back of the head, exited, and ended up in Tony' right shoulder. The cause of death was listed as "multiple gun shot wounds." The ballistics test showed that the .32-caliber semi-automatic handgun found at the scene had fired the fatal bullets. The gun had a trigger pull of fifteen pounds, which is considered a "heavy trigger pull." The gun had to be "cycled" after inserting the magazine for a round to be fired. A loosely-held automatic pistol is unlikely to fire a second time and is likely to jam. The weapon used to shoot Tony had two safety mechanisms: a magazine safety, which prevented the trigger from being pulled if the magazine was removed; and a button on the left side of the handgun that had to be turned to the "off" position before the gun would fire.

Ms. Francis was indicted for first degree murder, under section 565.020.1, RSMo 2000, for knowingly and deliberately killing her husband. Ms. Francis was also indicted for armed criminal action, under section 571.015. Ms. Francis hired Randell Wood, Brian Gepford, and Willard Bunch to defend her against the State's charges. John Cash, another attorney, was consulted on a more limited basis. Mr. Wood, who was lead counsel, had tried four murder cases prior to Ms. Francis' case. Mr. Gepford had tried criminal cases for his entire career, which began around 1982. A very large number of these cases were murder cases. Mr. Bunch had practiced law for thirty-five years. Most of his experience is in criminal law, including between 50 and 100 murder trials.

Prior to trial, trial counsel became aware that Ms. Francis had been abused by her husband in the past. There were records from two interventions by the police. Specifically, in September 1988, Ms. Francis reported to police that Tony had physically assaulted her. Ms. Francis told police that Tony broke her nose during this assault. In August 1989, after Ms. Francis had attempted to leave him, Tony broke into the home where Ms. Francis was staying, tied her up, and forcibly took her to their shared residence, where Tony continued to abuse her until police arrived. Between the August...