-Meredith Kerr, St. Paul Journal
A jury found Frank James Frenchman guilty of second-degree murder following nearly 24 hours of deliberations.
Frenchman was accused of second-degree murder for his role in the death of 83-year-old Bonnyville resident Alfred Wagner. Wagner died of blood loss after being stabbed during a home invasion and robbery the night of Oct. 16, 2016. Also accused in the case was Frenchman’s sister, Arizona Chastity Frenchman, who pled guilty to manslaughter. She was sentenced to five years in jail in November 2018.
In closing arguments lasting most of the day on March 21, Frenchman’s lawyer Naeem Rauf argued Frenchman’s fetal alcohol spectrum disorder (FASD) prevented him from understanding what was happening, both during the events leading up to Wagner’s death and during his interviews with police after.
According to the Centre for Addiction and Mental Health, FASD is caused when a fetus is exposed to alcohol in the womb, causing “damage to the central nervous system, which can lead to a wide range of cognitive, behavioural and other problems. These include small brain, seizures, problems with coordination, visual motor difficulties, decreased IQ, significant developmental delays, attention deficit, and hyperactivity problems.”
“When you come to consider the reliability of the statement, I ask you to remember the evidence of Dr. Massey that Frank Frenchman functions at the level of a 10-year-old,” said Rauf.
He asked the jury to disregard the statements Frenchman made to police because “even after having spoken to a lawyer, Frank Frenchman doesn’t understand what first-degree murder meant, that’s what he had been arrested for. Does that not raise at the very outset a serious question about Frank Frenchman’s level of understanding?”Rauf stated.
His second reason for why the jury ought to disregard the statements was the RCMP’s treatment of Frenchman following his arrest.
“They treated him, in my respectful submission to you, with anything but respect. They overrode his wish to speak to his lawyer, they overrode his wish to speak to his brother, they lied to him. All these things disgracefully enough, the law allows. I’m not saying they acted illegally. But just because something is legal doesn’t make it morally justifiable,” said Rauf.
He argued the RCMP manipulated Frenchman into giving the statements that formed a significant part of the Crown’s case.
“Frank Frenchman agreed to things showing himself to be putty, that’s my respectful submission to you, by agreeing to suggestions made. Obviously there were some suggestions to which he didn’t agree, but the number of suggestions to which he simply assented is astonishing.”
Frenchman’s repeated use of the phrases ‘I think,’ ‘I don’t know,’ and ‘yeah’ throughout the interview with police were interpreted by Rauf to denote uncertainty and to show how Frenchman was simply agreeing to suggestions made to him.
According to the transcript of Frenchman’s interview with police, he tied Wagner up.
“I told (Arizona) let’s just leave him like this and we’ll leave him, and I got the truck started and then (Arizona), I come in and he’s on the ground all covered in blood,” read Rauf from the transcript.
At some point during the interview, Frenchman demonstrated to police how he had tied Wagner, and specified the chair Wagner had been in had tipped or been pushed backwards. According to the testimony of a police officer earlier in the trial, which Rauf referenced, the rope was only tied to one wrist and the remainder was in a tangled mess beside the body. According to Rauf, photos of the crime scene show the chair was tipped on its side, not backwards.
“Frank Frenchman doesn’t know what he’s talking about, or his memory is defective,” Rauf explained.
“His statement was a morass of confusion. I submit to you, it’s so unreliable in a sphere where you need near absolute certainty that you should reject it. If you reject it, think about it. There is nothing left of the Crown’s case. Without his statement, what we have is Frank Frenchman’s fingerprints on the television. We have his DNA on various items, and we have some of Mr. Wagner’s DNA on Frenchman’s clothing... All that proves is that Frank Frenchman was present at Mr. Wagner’s residence sometime after Mr. Wagner bled.”
Following arguments from the defence, Crown prosecutor Jeff Rudiak made his closing statements to the jury.
“Frank Frenchman played a role in the killing of Mr. Wagner. I’m not saying at all that he inflicted the fatal wound. Like, forget it, he didn’t. He was a party to the offence. Now, how it works in law, with parties, and the justice will explain, but if a party aids in an offence, knowing that he is aiding in that offence, he’s just as guilty as the person who does it,” Rudiak detailed.
“This isn’t a hard case, this is simple. There’s really two issues you need to decide. Issue number one is the weight you’re going to give to the statement, and issue number two is the intention of Frank Frenchman,” added Rudiak.
He explained to the jury that in order to include Frenchman’s statements as evidence, the Crown first had to prove to the judge the statement was voluntary and in compliance with the Canadian Charter of Rights and Freedoms.
“You’ve all heard the expression ‘he got off on a technicality.’ Generally speaking, when he gets off on a technicality, there’s a breach of charter rights. A charter right is the right to a lawyer, the right to be informed what you’re arrested for. We’ve had pre-trial applications and the judge ruled Frenchman’s rights were upheld,” said Rudiak.
He explained that for a statement to be voluntary the crown had to prove the police didn’t beat up anyone, induce, or trick anyone into making a confession, and that the accused had an operating mind.
“[An operating mind] doesn’t imply a higher degree of awareness than knowledge of what the accused is saying, and that he is saying it to persons in authority who can use it to his detriment,” said Rudiak.
He continued, “It’s very telling, on page 61 when we’re talking about FASD, this is what he says. Frenchman at line 2,654, ‘I know, I’d just like to see your evidence first.’ MacDuff, ‘okay.’ Frenchman ‘like what do you guys have on me and then we’ll go from there.’ Well that doesn’t sound like a person who is a child. It sounds like a person who knows why he’s there and he’s weighing should I talk or not,” said Rudiak.
On the issue of whether the phrases ‘I think’ and ‘I don’t know’ indicated uncertainty, Rudiak said that was possible.
“It could also be that he’s trying to be evasive, that he’s trying to be purposely misleading. Because there was no evidence of any drinking prior to being picked up.”
Referencing the statement again, “when Cst. MacDuff says ‘why did you tell us,’ he says, ‘because I have a guilty conscience...’ He also says, ‘I know how it is to lose somebody.’ Those two things are the reasons why he talked to police,” said Rudiak.
According to Rudiak, the inconsistencies and errors Rauf highlighted in Frenchman’s statements aren’t proof the statement as a whole is unreliable.
“We have a broken jaw, we have a broken nasal bone. Frank Frenchman without prompting said, ‘I think I broke his jaw.’ That’s reliable because it’s corroborated by the autopsy. There’s no suggestion. He was the one who brought it up,” Rudiak noted.
“The most important things are corroborated by other evidence. That’s why I’m saying when Frank Frenchman says, ‘I think,’ I don’t think that he doesn’t know, I think he’s just being evasive,” said Rudiak.
He argued that Frenchman was guilty of second-degree murder both by having assisted Arizona Frenchman in the killing and by having the common purpose of the home invasion that resulted in the death.
“There is ample evidence of talk of a home invasion and that comes from Mr. Frenchman’s statement,” said Rudiak, reading another portion into the record. “It’s late at night. If he doesn’t have this common intention to do this, why would you be going into a stranger’s home? It makes no sense, because you don’t know this guy, later on he says, ‘it’s random,’” said Rudiak.
He read another portion of Frenchman’s statement detailing the violence leading up to the final moments in the kitchen at Mr. Wagner’s home before they took the truck and left for Kehewin, taking back roads.
“That question and answer to me is the case, because that question and answer right there shows you that he was there when she [Arizona] stabbed him [Wagner], when she sliced his throat… Not only was he there, he was aiding in this, because he knocked him out, he tied him up. He did all that stuff,” said Rudiak.
Court was adjourned for the day following Rudiak’s arguments so Justice John S. Little could finish drafting his instructions for the jury and discuss them with counsel. Those instructions were given to the jury the morning of March 22, after which the jury was sequestered for the duration of their deliberations. They returned with a verdict of guilty of second-degree murder at 10:45 a.m. on March 23.
Under Canadian law, second-degree murder carries a life sentence in prison. Arguments at the sentencing hearing are expected to be about the length of time before parole eligibility, with the crown “probably suggesting a range of 12 to 14 years of parole ineligibility,” according to Rudiak. Frenchman has been remanded into custody until his sentencing. The date of his sentencing will be scheduled April 1.
