Bryan Toles

Defendant

• Bryan Anthony Toles was convicted in the District Court, Comanche County, of first-degree murder and other felony counts, and was sentenced to death.

Timeline

• July 16, 1993 — Bryan Anthony Toles, David Flowers, and Casey Young walked past the Franceschi home in Lawton and decided to steal a car; Toles forced his way into the home after Lonnie opened the door, shot Juan Franceschi and Lonnie Franceschi, and later gave his bloody clothes to a runaway girl and told others he shot two people.
• July 22, 2003 — Bryan Anthony Toles was executed by lethal injection in Oklahoma.
• August 22, 1997 — The Oklahoma Court of Criminal Appeals decided Toles v. State (Case Number F-94-1145), and affirmed the judgment and sentence.
• October 26, 2001 — The United States Court of Appeals for the Tenth Circuit affirmed the district court’s denial of Bryan Anthony Toles’ habeas corpus petition.
• August 29, 2000 — A federal court denied the habeas appeal of Bryan Toles.
• September 13, 1991 — A burglary incident described in the “continuing threat” aggravator testimony occurred at the home of Teta Johnson and her daughter, Amy Gooday.
• March 7, 1992 — An incident described in “continuing threat” testimony occurred involving Newton Onco in Anadarko.
• April 28, 1992 — An incident described in “continuing threat” testimony occurred involving Jimmy Dorsey and Charles Hugar.
• December 2, 2002 — (Referenced in another inmate’s case within the same material) A direct appeal was denied for Harold Loyd McElmurry, III.
• February 28, 2003 — (Referenced in another inmate’s case within the same material) Rehearing was denied for Harold Loyd McElmurry, III.
• May 29 (year not specified) — (Referenced in another inmate’s case within the same material) A deadline was described for filing a petition for writ of certiorari.

Background

Bryan Anthony Toles was sentenced to death in the District Court, Comanche County. He was executed by lethal injection in Oklahoma on July 22, 2003.

Toles was 31 at the time of his execution.

Toles’ crimes included the deaths of Juan Franceschi (39) and Lonnie Franceschi (15).

The Oklahoma Court of Criminal Appeals set execution dates for two other death row inmates and an Attorney General request for a third execution date. Execution dates were scheduled for Bryan Anthony Toles (July 22) and Jackie Lee Willingham (July 24).

Key other case mentioned in the material

• Jackie Lee Willingham (33) was sentenced to death in the District Court, Comanche County, after confessing to the Dec. 20, 1994 murder of Jayne Ellen Van Wey (62). The material describes Willingham as fatally beating and robbing Van Wey after being refused and followed her into a bathroom.
• Harold Loyd McElmurry, III (33) was sentenced to death for the Aug. 2, 1999 murders of Rosa Vivian Pendley (75) and Robert Pendley (80), and the material describes that he told authorities he stabbed the victims with scissors and hit them with a piece of pipe and a garden hoe.

The offence

Decision to steal a car and entry into the home

The events culminated in the murders of Juan Franceschi and his fifteen-year-old son, Lonnie, and 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. They were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. They did not know how to hot-wire the red Mustang 5.0 in the Franceschi 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.

Lonnie opened the door. Toles pushed his way into the home, 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.

Shootings of Juan and Lonnie

Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm. Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. Toles 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, and Toles’ pants became soaked with Franceschi’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.

Lonnie Franceschi remained kneeling 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 the home invasion

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 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 spent the night at the home of another friend.

Toles 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.

Investigation

Following his arrest, Toles agreed to talk to the police.

During his first interview, he admitted entering the Franceschi home with David Flowers and Casey Young, but insisted that Young was responsible for the murders.

During three subsequent interviews, all of which were videotaped, Toles admitted carrying the gun into the Franceschi home and shooting Juan and Lonnie Franceschi.

In the trial court proceedings, the state also provided evidence described as four felony counts and four aggravating circumstances.

Custodial statements and voluntariness

At the Jackson v. Denno hearing, uncontroverted evidence established:

1. Toles asked for an attorney when he was arrested and placed in a squad car.
2. He received Miranda warnings and again asked for his attorney when he arrived at the police station.
3. Questioning was not begun, and he was told he would still have to be booked.
4. He stated he had changed his mind and would talk to police without counsel present.
5. Questioning began after this affirmative waiver.

The trial court found his statements were freely and voluntarily given after a knowing and intelligent waiver of Miranda rights and allowed the videotaped statements to be admitted at trial.

Arrest

Toles was arrested later that afternoon in Lawton while he was talking to his mother on a pay phone at the corner of 17th Street and Gore.

Trial

Charges and verdicts (first-stage proceedings)

Toles was tried by jury for:

• 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)
• Possession of a Weapon After Former Conviction of a Felony (Count VII) (21 O.S. 1991, § 1283)

The trial was in the Comanche County District Court in Case No. CRF-93-241 before the Honorable Mark R. Smith, District Judge.

The jury returned:

• Guilty verdicts on the murder counts, conspiracy to commit robbery, and possession of a weapon after former conviction of a felony.
• Not guilty verdicts on Count VI (attempted robbery with firearm after former conviction of a felony).

At the conclusion of the first-stage proceedings, the jury found Toles guilty of the two murder counts, conspiracy to commit robbery in the first degree after former conviction of a felony, and feloniously carrying a firearm, and found him not guilty of attempted robbery in the first degree after former conviction of a felony.

Aggravating circumstances (second-stage proceedings)

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.
4. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Sentencing

Recommended and imposed sentences

After finding the aggravating circumstances, the jury recommended:

• Death on each of the murder counts,
• Twenty years imprisonment for the conspiracy count,
• Ten years imprisonment for the possession of a weapon after former conviction of a felony.

The trial court imposed each recommended sentence.

The jury recommended death sentences on the two murder counts, and the trial court sentenced Toles to death on each of the murder counts.

Appeals

Oklahoma Court of Criminal Appeals (direct appeal)

In Toles v. State (947 P.2d 180; decided 08/22/1997), the Oklahoma Court of Criminal Appeals affirmed judgment and sentence.

The opinion listed that Toles’ arguments addressed:

• Sufficiency and charging language issues relating to “premeditated design” and malice aforethought.
• Juror removal for cause (venireman Pacheo and venireman Pyles).
• Denial of suppression of custodial statements.
• Denial of funds to secure presence of expert witness Dr. Jonathan Lipman and related ineffective assistance arguments.
• Admission of victim impact evidence and instructions about its use.
• Sufficiency of evidence supporting aggravating circumstances.
• Alleged prosecutorial misconduct.
• Jury instruction challenges.
• Accumulated error.
• Mandatory sentence review.

The Court held that the jury found the four aggravating circumstances and that judgment and sentence were affirmed.

U.S. Supreme Court denial and federal habeas

The material states that the U.S. Supreme Court denied final appeals and includes references to habeas review.

A federal court denied the habeas appeal of Bryan Toles on August 29, 2000.

The United States Court of Appeals for the Tenth Circuit, in Toles v. Gibson (October 26, 2001), affirmed the denial of Toles’ 28 U.S.C. 2254 petition for writ of habeas corpus.

Outcome

Bryan Anthony Toles’ convictions and sentences were affirmed on direct appeal, and his federal habeas petition was denied.

Aftermath / execution account

On July 22, 2003, while Bryan Toles was strapped to a gurney at the Oklahoma State Penitentiary in McAlester, he offered condolences to the family of Juan Franceschi and Lonnie Franceschi.

He said: “I'd like to apologize to the victims' family and ask them for their forgiveness,”

He also said:

• “I love all y'all. Thanks for coming. Take care of my mother,”

He stated “I fixing to pass out, I think” shortly before his body stopped moving and he was pronounced dead.

Norma Franceschi, Juan Franceschi’s widow and Lonnie Franceschi’s mother, attended the execution. The material includes that she said: “I have forgiven Toles,” and “I'm nobody to judge nobody. I'm just grateful he said 'I'm sorry.'”

The material also states:

• Toles offered condolences to the family.
• His family and his spiritual adviser were witnesses at the execution.
• Toles was convicted of two counts of first-degree murder and sentenced to death for the slayings in 1993.
• A co-defendant was also convicted and sentenced to life in prison.

Other details

Victim impact witnesses

In the second stage of trial, Norma Franceschi and her daughter Wendy presented victim impact testimony.

Continuing threat testimony incidents (prior acts described in the appeal opinion)

The “continuing threat” aggravator evidence included testimony about prior incidents involving:

• Newton Onco: On March 7, 1992, Onco testified that Toles accompanied a driver searching for a boyfriend, flashed headlights, and that Toles came up to the passenger side, hit Onco twice in the face, knocked out a tooth, kicked Onco when Onco got out, and told someone in the car to get his gun.
• Jimmy Dorsey: On April 28, 1992, Dorsey testified that Toles accused Charles Hugar of trying to beat up Toles’ brother a few days earlier; later Toles returned with friends, kicked in the front door, broke a window, threw a television antenna into the house, and hit Dorsey with part of the window molding when he tried to leave.
• Teta Johnson and Amy Gooday: During the night of September 13, 1991, Gooday testified that Toles broke into their home and tried to steal their television; she grabbed the cord as Toles crawled out the window, and Toles dropped the television and fled.

Confessions and reasons given in interviews

In videotaped statements, Toles told detectives he shot Juan and Lonnie Franceschi because they could identify him, and that he did not shoot Norma Franceschi because he thought she was too hysterical to identify him.

Last meal request (execution material)

The material describes a last meal request by Toles consisting of:

• “four fried chicken breasts”
• “mashed potatoes and gravy”
• “three Bama pecan pies”
• “two foot-long chili cheese dogs”
• “a small order of chili cheese fries”
• “a two liter cream soda”

It also states the meal was to be served at noon Tuesday and that Toles was scheduled to die six hours later.

Lawyer mentioned for appeals

The material names James L. Hankins as the Oklahoma lawyer handling Toles’ appeals, describing a contact attempt and that he promised to return a telephone call but did not.

Expert mentioned

The trial and appeals discussed denial of funding to secure the presence at trial of Dr. Jonathan Lipman, described as a neuropharmacologist from Illinois.

Verbatim quotations (selected)

• Toles thought: “damn, there’s still him left.”
• Toles was described as saying: “might as well go ahead and kill him”
• Toles was described as being heard to say: “damn, there's still him left.”
• Toles said: “I'd like to apologize to the victims' family and ask them for their forgiveness,”
• Toles said: “I love all y'all. Thanks for coming. Take care of my mother”
• Toles said: “I fixing to pass out, I think”
• Norma Franceschi said: “I have forgiven Toles,”
• Norma Franceschi said: “I'm nobody to judge nobody.