Bryan Anthony Toles

Executed July 22, 2003 by Lethal Injection in Oklahoma


45th murderer executed in U.S. in 2003
865th murderer executed in U.S. since 1976
12th murderer executed in Oklahoma in 2003
67th murderer executed in Oklahoma since 1976


Since 1976
Date of Execution
State
Method
Murderer
(Race/Sex/Age at Murder-Execution)
Date of
Birth
Victim(s)
(Race/Sex/Age at Murder)
Date of
Murder
Method of
Murder
Relationship
to Murderer
Date of
Sentence
865
07-22-03
OK
Lethal Injection
Bryan Anthony Toles

B / M / 21 - 31

09-09-71
Juan Franceschi
H / M / 39
Lonnie Franceschi
H / M / 15
07-16-93
Handgun
None
10-27-94

Summary:
Bryan Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's 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. Toles pushed his way into the home when 15 year old Lonnie Franceschi opened the door. He 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. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm. Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He 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. Toles' pants became soaked with Franseschi'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. Meanwhile Lonnie Franceschi was still kneeling on the floor 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. Toles confessed to the murders following his arrest. 16 year old accomplice David Flowers was also convicted on murder charges and sentenced to life in prison.

Citations:
Toles v. State, 947 P.2d 180 (Okl.Cr. 1997) (Direct Appeal).

Final Meal:
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 and a two liter cream soda.

Final Words:
"I'd like to apologize to the victims' family and ask them for their forgiveness," Toles said. He primarily talked to members of his family and his spiritual adviser, who were witnesses at his execution. "I love all y'all, thanks for coming. Take care of my mother. I'll see y'all later. We're all right. I fixing to pass out, I think."

Internet Sources:

Oklahoma Department of Corrections

Inmate: Bryan Toles
ODOC#: 200599
Birthdate: 09/09/1971
Race: Black
Sex: Male
Height: 5 ft. 08 in
Weight: 152 pounds
Hair: Black
Eyes: Brown
Location: Oklahoma State Penitentiary, Mcalester

Oklahoma.Com Channel 5

"Man Convicted In Deaths Of Father, Son Executed." (AP July 22, 2003)

MCALESTER, Okla. -- Bryan Anthony Toles was executed Tuesday for the 1993 shooting deaths of a 39-year-old man and his 15-year-old son. Toles, 31, was pronounced dead at 6:10 p.m. after receiving an injection of drugs at the Oklahoma State Penitentiary in McAlester. He was the 12th inmate executed in Oklahoma this year.

Toles was convicted of two counts of first-degree murder and sentenced to death for the July 16, 1993, murders of Juan Franceschi and his son, Lonnie Franceschi. As he lay strapped to a gurney, Toles offered his condolences to the Franceschi family. "I'd like to apologize to the victims' family and ask them for their forgiveness," Toles said.

Toles primarily talked to members of his family and his spiritual adviser, who were witnesses at his execution. "I love all y'all thanks for coming. Take care of my mother," he said. "I'll see y'all later. We're all right." Toles' eye lids began to flutter as the injections took effect. "I fixing to pass out, I think," Toles said. Members of his family wept as his eyes twitched. Toles struggled for breath and then his left arm and upper body began to twitch. His feet moved slowly before his body fell limp and he was pronounced dead.

About 15 minutes before his execution, other prisoners on death row began banging their cell doors to acknowledge the execution and give Toles a send-off. The banging could be heard in the death chamber and muffled what Toles said.

Juan and Lonnie Franceschi were shot shortly after midnight when Toles forced his way into their home in Lawton in an attempt to get the keys to the family car, according to Attorney General Drew Edmondson's office. Juan Franceschi, an Army veteran, was shot in the chest as he struggled with Toles. His son was shot in the back of the head as he lay face-down on the floor with his hands behind his back, authorities said. Toles confessed to the murders following his arrest, according to Comanche County District Attorney Robert Shulte, who prosecuted Toles. A co-defendant, David Flowers, was also convicted on murder charges and sentenced to life in prison.

Norma Franceschi, Juan Franceschi's widow and Lonnie Franceschi's mother, attended Tuesday's execution hoping to find closure. "I found closure," she said. "I have forgiven Toles. I came here to put closure in my life." Franceschi, who says she still copes with the deaths and has suffered numerous breakdowns requiring medical attention, appreciated Toles' deathbed apology. "I'm nobody to judge nobody, I'm nobody to judge nobody, I'm just grateful he said 'I'm sorry."' Franceschi said she takes medication for anxiety and occasionally experiences flashbacks of the crime, which cause "uncontrollable trembling and screaming."

Two other executions are scheduled in July: Jackie Lee Willingham on Thursday and Harold Loyd McElmurry III on July 29.

Oklahoma Attorney General News Release

News Release - W.A. Drew Edmondson, Attorney General

Execution Dates Set for Toles, Willingham, Date Requested for McElmurry 06/02/2003

The Oklahoma Court of Criminal Appeals today set July execution dates for two death row inmates, and Attorney General Drew Edmondson requested an execution date for a third. Execution dates were scheduled for Bryan Anthony Toles, July 22, and Jackie Lee Willingham, July 24. Edmondson requested the execution dates April 1 and May 19, respectively, after the U.S. Supreme Court denied the inmates' final appeals.

Toles, 31, was sentenced to death in Comanche County District Court for the July 16, 1993, murders of Juan Franceschi, 39, and his son, Lonnie Franceschi, 15. Toles shot both victims shortly after midnight when he forced his way into their Lawton home in an attempt to obtain keys to the Franceschi's car.

Willingham, 33, was sentenced to death in Comanche County District Court after confessing to the Dec. 20, 1994, murder of Jayne Ellen Van Wey, 62. Willingham was working as a traveling salesman when he attempted to sell perfume to Van Wey at her Lawton office. Van Wey refused Willingham's offer and asked him to leave. He then followed her into a bathroom where she was fatally beaten and robbed. Edmondson is asking family members of Jayne Ellen Van Wey to contact his office. Edmondson said his office attempts to notify victims' family members any time he requests an execution date. Under Oklahoma law, certain victim family members are permitted to witness executions, if they so desire. Family members are asked to contact Allyson Carson at (405) 521-3921.

Edmondson also today asked the Oklahoma Court of Criminal Appeals to set an execution date for McIntosh County death row inmate Harold Loyd McElmurry, III. McElmurry, 33, was sentenced to death for the Aug. 2, 1999, murders of 75-year-old Rosa Vivian Pendley and 80-year-old Robert Pendley in the couple's home west of Eufaula. McElmurry told authorities he stabbed the victims with scissors and hit them with a piece of pipe and a garden hoe. McElmurry's direct appeal was denied Dec. 2, 2002, and rehearing was denied Feb. 28, 2003. McElmurry, who has indicated his desire to waive further appeals, failed to file a petition for writ of certiorari at the U.S. Supreme Court before the May 29 deadline.

According to statute, Edmondson requested the date be set 30 days from May 29. "It is the practice of this office, before an execution date is requested, to examine each case to determine if the testing of DNA evidence should occur," said Edmondson. "We have determined, after a thorough review of this case, that DNA testing would be of no value and would have no relevance as to actual innocence. I see nothing that should stand in the way of this execution being carried out."

ProDeathPenalty.Com

The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, 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. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's 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. Toles pushed his way into the home when Lonnie opened the door. He 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. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm. Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He 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. 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. Meanwhile Lonnie Franceschi was still kneeling on the floor 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 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 who was 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 then spent the night at the home of another friend. He 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. 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 actually 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.

The DeathHouse.Com

Bryan Toles

McAlester, Okla. - Shot in the back of the head, 15-year-old Lonnie Franceschi got up from the floor and went to his bed. His mother heard him crying and gasping for air. He was later declared brain dead and removed from life support. The man who shot Lonnie, Bryan Toles, 31, is scheduled for execution July 22. Not only did Toles shoot Lonnie, but he also shot and killed the boy's father, Juan Franceschi, during a mindless and bloody home invasion. And, it all started because Toles and two other men were tired of walking after a night of drinking and didn't know how to hot wire the car they wanted to steal in the Franceschi driveway.

The murders occurred after midnight on July 16, 1993. Toles, along with David Blowers and Casey Young, had been drinking and walking home from a bar. They decided to steal a car and spotted the red Mustang in the Franceschi driveway. Not knowing how to hot wire the vehicle, Toles reportedly rang the doorbell while Flowers and Young hid. The duo covered their faces, "outlaw style," with bandannas, court documents stated. Young had a 22. caliber revolver. After pushing their way inside the house when Lonnie opened the door, Toles pointed a gun at the boy and told him to "get down and shut up." Young and Flowers came into the house and headed toward the bedrooms. Norma Franceschi heard the commotion and screamed for her husband, Juan, who struggled with Young and Flowers. Toles then kicked Lonnie and shot Juan in the arm. During the ensuing struggle, Toles shot Juan in the chest, but the mortally wounded man kept trying to fight the intruders. Lonnie Franceschi, kneeling on the floor near the front door, was shot in the head by Toles as he left the house. Before he shot him, Toles was heard to say, "Damn, there's still him left."

After Toles, Young and Flowers left, Lonnie went to his bedroom and lay in his bed. His mother heard him crying and gasping for air. She tried to call 911 from the back bedroom, but discovered that the phone was dead. She then ran to a neighbor's home to call for help.

Paramedics arrived and placed the mortally wounded boy on life support. Juan Franceschi died while medics worked on him. Later that day, Lonnie was declared brain dead, removed from life support and allowed to die, court documents stated. Toles gave conflicting statements as to what happened. Court documents stated that Toles first admitted to being present during the murder, but denied shooting anyone. He said Young shot the victims. In a second statement, he admitted he shot the victims. He said in a video-taped statement that he shot Juan and Lonnie Franceschi because they could identify him. James L. Hankins, the Oklahoma lawyer handling Toles' appeals, when contacted by The Death House .com for an update on the case, promised to return a telephone call to a reporter. He did not. Oklahoma Department of Corrections records show that Toles has previous convictions for robbery and burglary.

Oklahoma Coalition to Abolish the Death Penalty

Bryan Toles (OK) - July 22, 2003

The state of Oklahoma is scheduled to execute Bryan Toles, a black man, July 22 for the murders of Juan and Lonnie Franceschi in Lawton. Toles allegedly shot them in their home shortly after midnight on July 16, 1993 in an attempt to steal the red Mustang parked in their driveway. Toles confessed to the shootings the next morning, and received a death sentence in 1994.

Although his crime is certainly inexcusable, Toles is a victim of the economic discrimination inherent in the death penalty system. He did not have the necessary funds to secure the presence of Dr. Jonathan Lipman, a neuropharmacologist, and therefore forfeited what could have been the strongest mitigating factor in his case: voluntary intoxication. Toles could not afford a private attorney, and his court-appointed counsel refused to allocate funding for that defense.

Dr. Lipman, who interviewed Toles, reviewed his videotaped statements, and studied reports prepared by police investigators and social workers, could have given serious credibility to a defense of voluntary intoxication. After reviewing the case, Dr. Lipman reported that Toles had smoked eight rocks of crack cocaine prior to the murders, and had a blood alcohol level of .596. Since Toles could not afford to pay for Dr. Lipman, or private attorneys for that matter, he could not produce an effective defense on these grounds. Unfortunately, his case is not an isolated incident; 95 percent of death row inmates in the United States could not afford to hire private attorneys.

Toles also challenged the admission of his confessions at trial, which he made the morning after the murder. He claimed he did not knowingly and intelligently waive his constitutional rights as required by Miranda v. Arizona (1966). Police officers and Toles agree that he asked to speak to an attorney numerous times, but the state contends that after those requests, he changed his mind and decided to confess.

Most defendants convicted of murder in the United States do not receive death sentences. A small number do, and sadly, they are disproportionately African American and overwhelmingly poor. Please contact Gov. Brad Henry to protest the pending execution of Bryan Toles, as well as the racial and socio-economic discrimination in Oklahoma’s death penalty system.

McAlester News-Capital & Democrat

"Killer Slated For Execution," by Doug Russell. (July 21, 2003)

Fifteen-year-old Lonnie Franceschi staggered to his room and collapsed on his bed, crying and bleeding from a .22 caliber bullet wound in the back of his head. Lonnie's father, Army Sgt. 1st Class Juan Franceschi, lay in a heap in another part of the house, shot in the arm and chest. His mother ran screaming to a neighbor for help after finding the telephone wasn't working, but help came too late. The father and son died as a result of their wounds.

Ten years and six days later, the man who pulled the trigger in the early morning hours of July 16, 1993, is scheduled to walk the final steps to the state's execution chamber. Bryan Anthony Toles, 31, has requested a last meal 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 and a two liter cream soda. The meal is to be served at noon Tuesday. Toles is scheduled to die six hours later.

Comanche County District Attorney Robert Schulte remembers the case very well. Toles and two other men, David Flowers and Casey Young, had been out for a night of drinking before the shootings occurred. "There had been a bar fight so the three of them left," Schulte recalled. "It was a long walk home from where they were, so they thought they'd get a car and save the walking."

According to court documents, the three men spotted a Ford Mustang outside of the Franceschi home and decided to steal it, but since none of them knew how to hot-wire a car they decided to get the keys. Toles carried a .22-caliber revolver as he climbed up the front steps to the Franceschi home and rang the bell. When Lonnie Franceschi opened the door, the three men pushed their way into the home. Toles pointed the pistol at the 15-year-old and told him to get down. "He actually had him laying down in the foyer with his hands behind his back like he was waiting to be cuffed," Schulte said.

Hearing the noise, Norma Franceschi awoke and went to see what was wrong. When she spotted the intruders, she yelled for her husband, who came out of his bedroom and began struggling with Flowers and Young. Toles shot Juan Franceschi in the arm, then shot him again in the chest as the two struggled, according to court documents. Norma Franceschi was a daintily-built Oriental woman, Schulte recalled. "When she saw what was happening, she ran into the bedroom and hid in a small drawer that pulled out from under the bed," he said. "She could hear Toles walking around looking for her, but since the drawer was so small he didn't think to look in it. "She heard another shot and she knew her son was hurt - she heard him crying - but she waited a few minutes to make sure no one was there before she got out."

The telephone in the bedroom wasn't working, so Norma Franceschi ran to a neighbor for help. Juan Franceschi died at the scene as emergency medical responders worked on him. Lonnie Franceschi was later declared brain dead at a Lawton hospital and was removed from life support.

Last week Enid attorney Jim Hankins filed an appeal with the United States Supreme Court in an effort to stop Toles' execution. The state attorney general's office has filed a response to the appeal and "we fully expect to prevail," said spokesman Charlie Price.

McAlester News-Capital & Democrat

"Convicted Murderer Executed in Oklahoma," by Tim Talley. (AP 7/22/03)

McALESTER, Okla. - A man convicted of murder in the shooting deaths of a 39-year-old man and his teenage son was executed by injection Tuesday. As Bryan Toles lay strapped to a gurney, he offered condolences to the family of Juan Franceschi and his son, Lonnie Franceschi. "I'd like to apologize to the victims' family and ask them for their forgiveness," said Toles, 31, who was executed at the Oklahoma State Penitentiary in McAlester.

Toles was convicted of two counts of first-degree murder and sentenced to death for the slayings in 1993. Toles mostly talked to members of his family and his spiritual adviser, who were witnesses at the execution. "I love all y'all. Thanks for coming. Take care of my mother," he said. Toles' eyelids began to flutter as the injection took effect. "I fixing to pass out, I think," he said shortly before his body stopped moving and he was pronounced dead.

Juan and Lonnie Franceschi were shot after Toles forced his way into their home in an attempt to get the keys to the family car, prosecutors said. Toles confessed to the murders, according to prosecutors. A co-defendant was also convicted on murder charges and sentenced to life in prison.

"I have forgiven Toles," Norma Franceschi, Juan Franceschi's widow and Lonnie Franceschi's mother, who attended the execution. "I'm nobody to judge nobody. I'm just grateful he said 'I'm sorry.'"

Littlest Angels

Lawton, OK -- The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, began shortly after midnight on July 16, 1993.

Bryan Anthony Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's 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. Toles pushed his way into the home when Lonnie opened the door. He 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. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm.

Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He 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. 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.

Meanwhile Lonnie Franceschi was still kneeling on the floor 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 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 who was 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 then spent the night at the home of another friend. He 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.

UPDATE - August 29, 2000 -- A federal court denied the habeas appeal of Bryan Toles. Toles, a Comanche County death row inmate, was sentenced to death for the 1993 shooting deaths of Sgt.1st Class Juan Franceschi and his 15-year-old son, Lonnie, during a robbery attempt. David Flowers, a codefendant who was 16 at the time, received two life sentences for the murders. A third suspect was tried as a juvenile.

Toles v. State, 947 P.2d 180 (Okl.Cr. 1997) (Direct Appeal).

Defendant was convicted in the District Court, Comanche County, Mark R. Smith, J., of first-degree murder, conspiracy to commit robbery after former conviction of a felony, and possession of a weapon after former conviction of a felony, and was sentenced to death. He appealed. The Court of Criminal Appeals, Lane, J., held that: (1) information using term "premeditated design" was sufficient to charge malice murder; (2) one venireman was subject to removal for cause; (3) trial court's erroneous failure to remove one venireman for cause did not warrant relief; (4) defendant's custodial statements were properly admitted; (5) defendant was not denied effective assistance of counsel; (6) evidence supported aggravating circumstances; (7) alleged prosecutorial misconduct did not warrant relief; and (8) victim impact evidence did not create influence of passion, prejudice, or any other factor in sentencing decision. Affirmed. Lumpkin, J., concurred in results and filed opinion. OPINION LANE, Judge:
Bryan Anthony Toles, Appellant, was tried by jury for the crimes of 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); and Possession of a Weapon After Former Conviction of a Felony (Count VII) (21 O.S.1991, § 1283) in Comanche County District Court Case No. CRF-93-241. The jury acquitted Toles of Count VI and returned guilty verdicts on each of the other counts.

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; and 4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(2), (4), (5), (7). The jury then recommended a sentence of death on each of the murder counts, twenty years imprisonment for the conspiracy, and ten years imprisonment for the possession of a weapon after former conviction of a felony. The trial court imposed each of the recommended sentences. Mr. Toles has perfected his original appeal to this Court, and we affirm judgment and sentence.

FACTS

The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, 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. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's 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. Toles pushed his way into the home when Lonnie opened the door. He 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. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm. Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He 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. Toles' pants became soaked with Franseschi'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.

Meanwhile Lonnie Franceschi was still kneeling on the floor 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 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 who was 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 then spent the night at the home of another friend. He 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.