Bobby Marion Francis

Case name

Bobby Marion Francis (also referred to as Bobby Marion Francis)

Timeline

• August 16, 1975 — Opal Lee and Charlene Duncan went to Key West from Miami to deliver a package from Francis to Elmer Wesley.
• August 17, 1975 — Francis went to Key West with Willie Orr and lay in wait at Elmer Wesley’s home with the expressed intent to kill Walters.
• August 27, 1975 — A state grand jury indicted Francis and others for the first-degree murder of Titus Walters.
• 1976 — After a trial, a jury convicted Francis of first-degree murder and recommended the death penalty; the trial court sentenced him to death.
• 1979 — After a second trial, a jury again convicted Francis of first-degree murder and recommended the death penalty; the trial court sentenced him to death.
• 1982 — The Florida Supreme Court reversed Francis’s conviction and sentence because Francis had been involuntarily absent during a critical phase of the jury selection process; Francis v. State, 413 So.2d 1175 (Fla.1982).
• March 1983 — At a third trial, Charlene Duncan, among others, testified against Francis; Francis was sentenced to death.
• September 15, 1987 — The Governor of the State of Florida signed a death warrant for Francis.
• November 2, 1987 — The Florida Supreme Court denied Francis’s petition for writ of habeas corpus; Francis v. Dugger, 514 So.2d 1097 (Fla.1987).
• 1988 — The Florida Supreme Court affirmed the denial of relief on Francis’s Rule 3.850 motion; Francis v. State, 529 So.2d 670 (Fla.1988).
• September 12, 1988 — The Governor signed Francis’s second death warrant.
• 1988 — The United States District Court for the Southern District of Florida denied Francis’s federal habeas corpus petition and denied a certificate of probable cause to appeal; Francis v. Dugger, 697 F.Supp. 472 (S.D.Fla.1988).
• July 24, 1990 — The United States Court of Appeals for the Eleventh Circuit affirmed the denial of a writ of habeas corpus; 908 F.2d 696.
• June 25, 1991 — Francis was executed by electrocution in Florida.

Background

Bobby Marion Francis was executed on June 25, 1991.

Francis’s case included Florida Supreme Court proceedings listed with docket references:

• Florida Supreme Court Briefs and Opinions Docket #71292 — Bobby Marion Francis, Petitioner, vs. Richard L. Dugger, Respondent; 514 So. 2d 1097; November 2, 1987.
• Florida Supreme Court Briefs and Opinions Docket #71443 — Bobby Marion Francis, Appellant, vs. State of Florida, Appellee; 529 So. 2d 670; June 2, 1988.
• Florida Supreme Court proceedings also listed: Docket #78068 and Docket #78074 were consolidated; 581 So. 2d 583; June 15, 1991.

The offence

Francis murdered Titus R. Walters, described as a confidential informant used in a drug investigation in early August 1975.

Francis had vowed he would kill Walters after a conversation with the sheriff’s office in connection with the investigation resulted in Francis’s arrest for dealing in narcotics.

Events leading to the murder

The events leading to the actual murder of Titus Walters began on August 16, 1975, when Opal Lee and Charlene Duncan went to Key West from Miami to deliver a package from Francis to Elmer Wesley. Francis had given Duncan money for her bus ticket. Upon arriving in Key West, Lee and Duncan went to Wesley’s home and were introduced to Walters, who tried to make a move on Lee. Walters harassed them and eventually punched Lee in the face, knocked her down, pulled out a gun, and shot at Duncan.

Duncan called Francis in Miami and told him what had occurred. Francis agreed to go to Key West, which he did on August 17, 1975. Francis, Willie Orr, Elmer Wesley, Duncan, and Lee went to Wesley’s house, where Francis, with the expressed intent to kill Walters, lay in wait for Walters.

When Deborah Wesley Evans (Elmer Wesley’s sister), Arnold Moore, and Walters arrived at Wesley’s home, Francis, Lee, Orr, and Duncan came out from behind the curtain separating the living room from the kitchen. Francis told Walters to get on his knees and asked him why he punched Francis’s woman in the mouth. Walters pleaded for his life. Orr took Evans and Moore into the kitchen, where they heard a gunshot and heard Walters plead for his life.

Francis had shot into the floor. Francis then took Walters into the bathroom, made him sit backwards on the commode, put a washcloth in his mouth, and taped his hands and mouth. Francis went into the kitchen and requested syringes and Drano, proposing to inject Walters. These were subsequently obtained and were later found in Wesley’s home. Francis went into the bathroom and shot Walters in the head, but the wound was not fatal.

With a pillow and gun in hand, Francis came into the kitchen and informed those present that the victim must have strong roots because he would not die. Francis told the others they were all part of a conspiracy and that they would have to dispose of the body. He then went back into the bathroom and fatally shot Walters through the heart.

When Walters’s body was found in a bathtub in the Key West home, his hands were bound and his mouth was taped. Powder burns on his body indicated he had been shot at close range. The police recovered a pillow with six holes and a black substance on it, consistent with gunshots being fired through it.

Francis v. State, 473 So. 2d 672, 673-74 (Fla.1985) was also referenced in relation to the murder description; cert. denied was listed as 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986).

Investigation

The murder occurred in Key West, and the events involved a prior drug investigation in which Walters was used as a confidential informant.

Trial

Indictment and first trial

On August 27, 1975, a state grand jury indicted Francis and others for the first-degree murder of Titus Walters.

After a trial in 1976, a jury convicted Francis of first-degree murder and recommended the death penalty; the trial court sentenced Francis to death.

New trial and second trial

Before hearing the direct appeal, the Florida Supreme Court relinquished jurisdiction to the trial court, which granted Francis a new trial after finding his trial counsel rendered ineffective assistance of counsel.

After a second trial in 1979, a jury again convicted Francis of first-degree murder and recommended the death penalty; the trial court sentenced him to death.

Direct appeal reversal

On direct appeal, the Florida Supreme Court reversed the conviction and sentence because Francis had been involuntarily absent during a critical phase of the jury selection process; Francis v. State, 413 So.2d 1175 (Fla.1982).

Third trial

In March 1983, at a third trial, Charlene Duncan, among others, testified against Francis. Duncan had been a co-defendant with Francis at his first trial, where a jury convicted her of first-degree murder.

At Duncan’s sentencing, the trial court imposed a life sentence without parole for twenty-five years. In 1979, Duncan entered into an agreement with the state in which she agreed to testify truthfully against Francis at his second trial. The state agreed that if Duncan’s conviction were overturned on appeal, she could plead guilty to third-degree murder and receive a sentence of no more than ten years. Absent a successful appeal, the state agreed to actively seek executive clemency or a pardon. Duncan testified at the second trial.

Prior to the third trial, the state entered into another agreement with Duncan in which the state agreed to assist Duncan in preparing and filing a Rule 3.850 motion seeking relief on the ground that by testifying truthfully at Francis’s third trial, Duncan would be entitled to benefit of the 1979 agreement (plea to third-degree murder with a ten-year sentence). The state did not disclose this agreement to Francis’s counsel.

Duncan testified at trial regarding her agreement with the state. She stated she was serving a twenty-five year sentence and that if she testified truthfully she would be allowed to plead to third-degree murder with a ten-year sentence, or receive a pardon. Duncan also testified that the prosecutor had arranged a resentencing hearing scheduled for April 4, 1983, the week following Francis’s third trial.

On cross-examination, Francis’s counsel asked Duncan if “a new deal has already been processed,” and Duncan replied “no.” On recross, counsel asked if Duncan had received a pardon; Duncan replied, “No, but I can get one.” Duncan did not specifically testify that the prosecutor had agreed to assist her in a Rule 3.850 proceeding.

The state also called Deborah Wesley as a witness. Wesley’s testimony corroborated the testimony of the other eyewitnesses to the murder.

On cross-examination, defense counsel sought to inquire into a pending unrelated murder charge against Wesley; the trial court sustained the state’s objection to admissibility.

Jury recommendation and sentencing

At the third trial, the jury convicted Francis of first-degree murder and recommended a life sentence. The trial court overrode the jury’s recommendation and imposed the death penalty.

On appeal, the Florida Supreme Court affirmed the conviction and sentence; Francis v. State, 473 So.2d 672 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986).

Sentencing

The trial court sentenced Francis to death after overriding a jury recommendation of life imprisonment. The Florida Supreme Court affirmed the conviction and sentence.

Appeals

State post-conviction and habeas corpus

On September 15, 1987, the Governor signed a death warrant.

Francis then filed two collateral attacks. First, he filed a petition for writ of habeas corpus in the Florida Supreme Court. On November 2, 1987, the Florida Supreme Court denied the petition; Francis v. Dugger, 514 So.2d 1097 (Fla.1987).

Second, Francis filed a motion to vacate judgment and sentence under Rule 3.850. After an evidentiary hearing, the trial court denied relief. Francis appealed to the Florida Supreme Court, which affirmed the denial of relief; Francis v. State, 529 So.2d 670 (Fla.1988).

Federal habeas corpus and Eleventh Circuit decision

On September 12, 1988, the Governor signed a second death warrant. Shortly thereafter, Francis filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida under 28 U.S.C. Sec. 2254. The district court denied the petition and denied a certificate of probable cause to appeal; Francis v. Dugger, 697 F.Supp. 472 (S.D.Fla.1988).

This court granted a certificate of probable cause and stayed the pending execution.

The Eleventh Circuit appeal was listed as:

• 908 F.2d 696 — Bobby Marion Francis, Petitioner-Appellant, v. Richard L. Dugger, Secretary, Florida Department of Corrections, Respondent-Appellee.
• No. 88-6001 — Federal Circuits, 11th Circuits, July 24, 1990.
• Appeal from the United States District Court for the Southern District of Florida.
• Panel: KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.
• Decision: PER CURIAM — the court affirmed the district court’s denial of a writ of habeas corpus.

Issues raised and addressed

Francis contended the district court erred in denying habeas corpus relief, including:

1. State withholding material evidence about an agreement to assist Duncan in a Rule 3.850 proceeding and permitting Duncan to present false testimony regarding that agreement, under Giglio v. United States and Brady v. Maryland.
2. Error when the district court found the alleged Brady/Giglio violations to be harmless.
3. A confrontation clause violation from restriction of cross-examination of Deborah Wesley about her pending criminal charge, and error in finding harmless beyond a reasonable doubt.
4. Ineffective assistance of counsel during the penalty phase.
5. Arbitrary overriding of the jury’s life recommendation by imposing death.
6. Ex post facto clause violation regarding application of the aggravating factor “cold, calculated, and premeditated.”
7. Insufficient evidence supporting aggravating factors “heinous, atrocious, or cruel,” “cold, calculated, and premeditated,” and disrupting or hindering the enforcement of laws.
8. Unconstitutionally overbroad application of aggravating factors “cold, calculated, and premeditated” and “heinous, atrocious, or cruel,” citing Maynard v. Cartwright.
9. Error in concluding that pre-verdict plea offers to allow Francis to plead guilty to first-degree murder with a life sentence did not render improper the subsequent imposition of death.

The state responded that the district court properly denied relief, including that any nondisclosure and testimony issues were harmless beyond a reasonable doubt, and that cross-examination restriction was either not error or harmless beyond a reasonable doubt.

Court’s conclusions

The Eleventh Circuit held:

• The district court correctly found the state’s nondisclosure of its agreement to assist Duncan and failure to correct Duncan’s inaccurate testimony to be harmless beyond a reasonable doubt.
• The trial court did not err in prohibiting Francis’s counsel from cross-examining Wesley about her pending murder charge; in any event, any such error would be harmless beyond a reasonable doubt.
• Counsel’s performance during the penalty phase was not deficient under Strickland, and Francis was not entitled to an evidentiary hearing.
• The jury override was not constitutionally infirm and did not result in arbitrary or discriminatory capital sentencing.
• No ex post facto violation occurred because application of “cold, calculated, and premeditated” did not disadvantage Francis.
• Sufficient evidence supported the aggravating factors.
• The Maynard/Godfrey claims lacked merit.
• Francis was not entitled to relief based on a pre-verdict plea offer exchanged for a life sentence followed by imposition of death.

The appellate decision concluded: “In sum, we conclude that the district court properly denied Francis’s petition for a writ of habeas corpus. AFFIRMED.”

Outcome

Bobby Marion Francis was executed by electrocution in Florida on June 25, 1991.

The New York Times account included additional details about the execution, including that Francis began his last statement by chanting in Arabic: “There is no God but Allah, and Mohammed is his prophet.”

Aftermath

An imam named Rabbani Muhammad was described as stating: “as Allah’s will.” The account included the following quoted statements from Rabbani Muhammad: “He was sorry for the things he might have done,” Mr. Muhammad said, “but he's never been one to confess.”

A lawyer named Susan Cary was quoted: “To me, that is torture,” Ms. Cary said.