Court sets aside Tilley death penalty
Wednesday, July 8, 1998
TISHOMINGO -- The Oklahoma Court of Criminal Appeals set aside a
1996 Johnston County jury's death penalty verdict against Joe
Vance Tilley and returned the case to district court for
Finding no errors in the guilt stage of the trial, the appeals
judges Tuesday confirmed Tilley's conviction for the 1990 murder
of 15-year-old Kimberly James. However, they ordered the
sentencing phase of the trial be conducted a second time. The
judges said they based their decision on the contention Madill
defense attorney, Jody Minter, did not "adequately investigate and
present second-stage mitigation evidence that was available."
The judges apparently disregarded evidence Tilley repeatedly
rejected Minter's efforts to mount a defense against a death
penalty verdict. Tilley not only refused to take the stand himself
and beg the jury for his life, he spurned Minter's attempt to call
his mother as a mitigating circumstances witness. Out of the
jury's hearing, Minter also made an official court record saying
his 22-year-old client continued to reject his advice.
During his closing argument on April 11, 1996, Minter asked the
jury to "end it now. I'm not asking for Joe's sake, but for his
family and Miss James' family. The James family grieves, and
rightly so. Joe's family grieves, and rightly so. I ask for mercy,
if not for Joe, then for the families."
The jury deliberated approximately two hours before returning the
death penalty verdict.
Tilley asked District Judge Tom Walker to sentence him immediately
and smiled as the judge validated the jury's decision.
Minutes later, as he watched his client being escorted from the
courtroom by Department of Corrections officers, Minter said, "I
have spent over five years on this case, and the last four days
trying to save a boy who didn't want to be saved. It's been the
strangest four days of my life."
Late Tuesday, Minter said he was pleased the death penalty had
"I think that's proper. I don't understand the court's opinion,
but then I haven't had time to read it and I often don't
understand why they do things," he said.
The Madill lawyer said he was not sure if he would represent
Tilley the second time around.
"I will be speaking with Joe and his family," Minter said, adding
if he was retained in the case, he hoped his former client had had
a change of heart.
"Hopefully Joe will have changed his mind and will allow us to put
on mitigating evidence," he said.
District Attorney Gary Henry called the appeals court's ruling
"The Court of Criminal Appeals seems bent on ignoring what juries
want," Henry said.
Henry accused appeals judges of "playing legislators." He said,
"The law was complied with. They've (judges) changed the law. They
are forcing outcomes they want and are wanting to make the rules
-- be legislators."
Recalling the trial, Henry pointed to Minter's attempts to present
mitigating evidence for his client.
"We (prosecutors) did nothing wrong. Judge Walker did nothing
wrong and Jody Minter did nothing wrong. It burns me up."
Walker said while he was aware of the appeals court's order, he
had not had an opportunity to read the decision, nor had he
selected a date to have Tilley returned to Johnston County
District Court for the resentencing portion of his trial.
While the appeals judges set aside the 1996 death penalty, a
resentencing could result in the same verdict. Meanwhile, Tilley
remains behind prison walls for the slaying of one of his Madill
High School classmates.
In addition, he is serving a life without parole sentence for the
murder of a 75-year-old Ardmore man. Tilley was convicted in 1993
in Carter County District Court of gunning down Herman Deagon in
an Ardmore alley. The slayings occurred within days of each other.
Tilley was 16 years old at the time of the murders.
Joe Vance Tilley
In November 1999, Joe Vance Tilley was sentenced to life
imprisonment without the possibility of parole (LWOP) for shooting
15-year-old Kimberly Ann James dead in 1990. Tilley, who was 16 at
the time of the crime, was already serving a LWOP sentence for
another murder committed around the time of the James shooting.
He was originally sentenced to death for the James murder, but was
granted a resentencing hearing. That was cancelled when the
Johnston County prosecutor reached an arrangement whereby Tilley
agreed to LWOP and to waive his right to appeal that sentence.
This arrangement was agreed to by the parents of the victim. In
the case of Sean Sellers, sentenced to death for the murder of
three people committed when he was 16, family members called for
his execution and the Oklahoma County authorities never wavered
from this objective. Sean Sellers was executed in February 1999.
Tilley v. State
1998 OK CR 43
963 P.2d 607
69 OBJ 2522
Case Number: F-96-441
JOE VANCE TILLEY,
Appellant -vs- STATE OF OKLAHOMA, Appellee
Oklahoma Court of
O P I N I O N
[963 P.2d 610]
¶1 Joe Vance Tilley was tried by a jury in the District Court of
Johnston County, Case No. CRF-90-71, before the Honorable Thomas
S. Walker. Tilley was convicted of First Degree Malice
Aforethought Murder. After finding the existence of one
aggravating circumstance – Tilley posed a continuing threat to
society – the jury set punishment at death. The trial court
sentenced Appellant accordingly. Tilley now appeals.
¶2 During the early morning hours of September 14, 1990,
fifteen-year-old Kimberly Ann James sneaked out of her house to
meet sixteen-year-old Joe Vance Tilley. The two teenagers attended
high school together in Madill. Tilley then took James riding
around in his car. Tilley eventually pulled off the roadway and
stopped the car. After directing James to get out of the car,
Tilley asked James whether she believed he was crazy or would kill
her. Tilley then proceeded to strangle James until he could no
longer feel a pulse. Thereafter, Tilley placed James’ body in his
car and drove her to a bridge over the Washita River, where he
threw her body into the water. Two fisherman discovered James’
body floating face down in the river on the afternoon of Monday,
September 17, 1990.
¶3 Prior to his arrest, Tilley made statements to Wilma Rushing
Bentley and Gregg Maddox about the murder. During these
conversations, Tilley stated he had killed James and gave specific
details about the murder. Tilley also confessed to law enforcement
after his arrest.
¶4 Tilley submits in his sixth proposition of error that the
Information was insufficient as it failed to allege all the
elements of malice murder. Tilley specifically contends the trial
court never acquired subject matter jurisdiction over this case
because the indispensable "malice aforethought" element was not
alleged in the Information filed against him. As Tilley did not
object to the Information at trial, we review only for plain,
reversible error. Conover v. State, 1997 OK CR 6, 933 P.2d
¶5 In Parker v. State, 1996 OK CR 19, 917 P.2d 980,
cert. denied, ___ U.S. ___, 117 S.Ct. 777, 136 L.Ed.2d 721
(1997), this Court rejected Miller v. State, 1992 OK CR 8,
827 P.2d 875, and concluded that any failure to allege facts
constituting an offense raises due process questions but does not
automatically affect the trial court's jurisdiction. Parker,
917 P.2d at 985. Thus, review of this issue focuses on whether the
Information gave the defendant notice of the charges against him
and apprised him of what he must defend against at trial. Id.
at 986. This determination is to be made on a case-by-case basis.
"[T]his Court will look to the "four corners" of the Information
together with all material that was made available to a defendant
at preliminary hearing or through discovery to determine whether a
defendant received notice to satisfy due process requirements."
Conover, 933 P.2d at 909.
¶6 The Information in the instant case set forth sufficient facts
to give Tilley notice of the charge against him. The use of the
phrase "with premeditated design" was sufficient to advise
Appellant that he was charged with [963 P.2d 611] malice
aforethought murder. Conover, 933 P.2d at 910. See also
Holloway v. State, 1979 OK CR 113, 602 P.2d 218, 220. It is
also clear from the trial record that Tilley understood he was
charged with malice aforethought murder. Consequently, we find no
due process violation occurred.
¶7 Tilley contends, however, that retroactive application of
Parker to his case violates Oklahoma case law and is
fundamentally unfair under federal and state constitutional
provisions for due process and equal protection of the laws. This
issue was specifically addressed and rejected by this Court in
Conover, 933 P.2d at 910. See also Miles v. State, 1996
OK CR 24, 922 P.2d 629, 631 (application of Parker does not
deny a defendant of a substantial personal right nor does it
violate the prohibition against ex post facto laws). We need not
revisit this issue at this time.
¶8 The Information in the present case was not ambiguous and set
forth the requisite mens rea to place Tilley on notice that he was
charged with malice murder. This proposition of error is denied.
¶9 In his fourteenth proposition of error, Tilley submits that
Oklahoma’s reverse certification statutes are inadequate to insure
that a sixteen-year-old offender is sufficiently mature and
morally responsible to be subjected to the death penalty. Tilley
appealed the denial of his reverse certification motion in
Tilley v. State, J-92-114 (not for publication opinion decided
on October 1, 1992). All challenges to the reverse certification
procedure should have been presented and decided in that matter.
This allegation of error is not properly before us at this time.
Issues Relating to Guilt/Innocence
¶10 On August 28, 1991, defense counsel filed a motion to quash
the Information in this case based on the State’s failure to prove
the corpus delicti of the crime. A hearing was held on December
22, 1992, at which time argument was presented. The court reserved
ruling on the motion and ordered both parties to submit briefs on
the issue. On January 13, 1993, relying on Thornburgh v. State,
1991 OK CR 65, 815 P.2d 186, the district court
sustained Tilley’s motion to quash finding the State had failed to
sufficiently prove the corpus delicti of the crime. The district
court also ordered the charge dismissed and bond exonerated, and
stayed the order of dismissal and exoneration of the bond pending
the State’s appeal.
¶11 On December 5, 1994, in an unpublished opinion (State v.
Tilley, Case No. F-93-660), this Court reversed the district
court’s order finding that the corpus delicti rule set forth in
Thornburgh had been overruled by Fontenot v. State,
1994 OK CR 42, 881 P.2d 69. Thereafter, Tilley filed a Petition
for Rehearing arguing, in part, that the Court’s decision
improperly subjected him to an ex post facto application of
substantive law. On October 11, 1995, this Court denied Tilley’s
rehearing motion. Citing Mitchell v. State, 1994 OK CR 70,
884 P.2d 1186, 1204, cert. denied, 516 U.S. 827, 116 S.Ct.
95, 133 L.Ed.2d 50 (1995), the Court reasoned that the application
of a new evidentiary rule in a trial for a crime committed prior
to the evidentiary change is not prohibited by the constitutional
prohibition against ex post facto law.
¶12 In his first assignment of error, Tilley again contends the
retroactive application of this Court’s decision in Fontenot
violated judicial ex post facto principles. Review of
this claim is barred by the doctrine of res judicata. This
issue was fully addressed by this Court in its October 11, 1995,
order denying Tilley’s motion for rehearing.
¶13 [963 P.2d 612] Tilley asserts in his second assignment of
error that the evidence was insufficient to sustain his conviction
for first degree murder. Tilley maintains his conviction cannot
stand as it was based solely upon his uncorroborated confession.
He contends that even under the Opper standard adopted in
Fontenot, the State completely failed to corroborate his
confessions with substantial independent evidence. We disagree.
¶14 "A confession may be considered trustworthy if it is
corroborated by substantial independent evidence." Rogers v.
State, 1995 OK CR 8, 890 P.2d 959, 975, cert. denied,
516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995). See also
Fontenot, 881 P.2d at 80-1. However, each material element
does not have to be corroborated by facts independent of the
confession. Rogers, 890 P.2d at 975. In fact,
inconsistencies between the facts proven and the facts related in
the confession may exist, so long as the inconsistencies do not
overwhelm the similarities. Id.
¶15 The State in the instant case provided sufficient
corroborative evidence independent of Tilley’s confession to show
its trustworthiness and thus its competence. First, in addition to
confessing to law enforcement, Tilley made several post-crime
statements in which he admitted killing the victim. See Johnson
v. State, 1995 OK CR 62, 911 P.2d 918, 925, cert. denied,
___ U.S. ___, 117 S.Ct. 116, 136 L.Ed.2d 67 (1996). During two
separate conversations with Wilma Rushing Bentley, Tilley stated
that he had killed Kimberly James. During the second conversation,
Tilley described in detail the events leading up to the victim’s
murder and the actual murder. Tilley also spoke with Gregg Maddox
in detail about the murder. Tilley’s post-crime statements to
Maddox were consistent with his statements to Bentley.
¶16 Second, although the autopsy was inconclusive as to the
victim’s cause of death, Dr. Chai Choi testified that the left
part of the victim’s head had a purplish to green coloring which
indicated some traumatic bruises in that area. This evidence of
bruising was consistent with Tilley’s statements that he had
dropped the victim on her head when he was attempting to throw her
over the bridge.
¶17 Third, the victim’s body was found in the Washita River four
or five miles north of Dickson approximately 75 to 100 yards east
of the River Bridge. The location of the victim’s body is
consistent with Tilley’s post-crime statements to Gregg Maddox.
¶18 Finally, Tilley’s voluntary confession to the Herman Deagon
murder in Carter County, which occurred just four days prior to
the James murder, corroborates the trustworthiness of Tilley’s
confession to the James murder. When asked whether Tilley wished
to discuss the murder, Tilley responded "Which one?" Thereafter,
Tilley confessed to both the James and Deagon murders. Tilley also
assisted Sheriff Bill Noland in recovering the .22 pistol used to
kill Deagon. Under these particular circumstances, we find the
trustworthiness of Tilley’s confession to the Deagon murder is
indicative of the trustworthiness of Tilley’s confession to the
¶19 This evidence sufficiently corroborated Tilley’s confession.
Thus, the jury was free to consider it as evidence of guilt and
the evidence was sufficient to convict Tilley of first degree
murder. This proposition of error fails.
¶20 In his third assignment of error, Tilley contends the trial
court erroneously admitted his inculpatory statements to Gregg
Maddox which were made the morning of his arrest. On the evening
of September 17, 1990, the same evening in which Kimberly James’
body was identified, Gregg Maddox had two separate telephone
conversations with Tilley. During these conversations, Tilley
informed Maddox that he had killed the victim and described the
events leading up to the murder and the actual murder. Maddox [963
P.2d 613] later related the details of his conversations with
Tilley to the police.
¶21 The next morning, Maddox agreed to wear a wire transmitter to
school in an attempt to obtain additional information about the
murder. The plan was for Maddox to meet up with Tilley at school
and instigate a conversation with Tilley regarding Kimberly James.
Maddox testified that he had been instructed to ask Tilley
specific questions. Officer Sikes and Deputy Sheriff Bilbrey drove
Maddox to school and dropped him off. Several other officers were
also stationed at various points around the high school.
¶22 Maddox saw Tilley outside the gymnasium and initiated a
conversation. As instructed by police, Maddox first asked Tilley
if he had taken James’ shoes off before he threw her body off the
bridge. Tilley replied, "No, they must have fallen off." Maddox
next inquired how James got a knot on her head. Tilley responded
that he had dropped James as he was getting her body out of the
car. Maddox next asked Tilley about James’ eyes. Tilley stated
something like "if he’d had a knife, he’d cut out her eyes and
saved ‘em." Finally, as instructed by police, Maddox asked Tilley
if he had wiped off his car. Tilley responded that he had and had
removed some hair from the back seat. After this conversation,
Maddox walked away from Tilley and saw the police move in and
arrest and handcuff Tilley.
¶23 Prior to trial, defense counsel filed a motion to suppress
Tilley’s statements to Maddox. Defense counsel argued at a
pretrial suppression hearing held on December 22, 1992, that the
confession obtained by Maddox was taken in violation of Tilley’s
right against self-incrimination and his rights under Title 10,
Section 1109. Defense counsel also objected to this evidence at
trial asserting it was taken in violation of § 1109. On appeal,
Tilley further contends this evidence was admitted in violation of
his rights under the Fourteenth Amendment to the United States
Constitution, Article II §§ 7, 9 and 21 of the Oklahoma
Constitution. We find merit to this claim.
¶24 Title 10 O.S.Supp.1989, § 1109(A) provides:
No information gained by questioning a child nor any evidence
subsequently obtained as a result of such information shall be
admissible into evidence against the child unless the questioning
about any alleged offense by any law enforcement officer . . . is
done in the presence of the parents, guardian, attorney, or legal
custodian of the child.
¶25 At the time Tilley spoke with Maddox at school, Tilley was
still a "child" in the statutory meaning of the term. See
10 O.S.Supp.1989, § 1104.2(A). The reverse certification mechanism
is not triggered until the accused juvenile is arrested and
detained for a reverse-certification crime. Once this occurs, the
sixteen or seventeen-year-old accused has all the statutory and
constitutional rights and protections of an adult accused of a
crime. See Young v. State, 1991 OK CR 29, 807 P.2d
¶26 Since the reverse certification mechanism had not yet been
triggered, the key question here is whether Maddox’s questioning
of Tilley violated the special protections of § 1109. In State
v. M.A.L., 1988 OK CR 274, 765 P.2d 787, 790, this Court found
that a child need not be in custody in order to trigger § 1109.
While at school, the defendant in M.A.L. was questioned at
least twice by an assistant principal. After obtaining statements
incriminating M.A.L., the assistant principal contacted police.
Thereafter, he questioned M.A.L. in the presence of a police
officer. This Court concluded that § 1109 was applicable as the
assistant principal was acting in an investigative manner when he
questioned M.A.L. at school. In reaching this determination, the
Court noted that the principal’s investigation dealt with criminal
activity which was more than a violation of school rules or school
¶27 We find the Court’s rationale in M.A.L. is applicable
to the instant case. Maddox was clearly acting as an agent for the
State when he approached and questioned Tilley. Maddox’s
conversation with Tilley regarding the James murder was instigated
at the direction of law enforcement. Moreover, the police
instructed Maddox to ask Tilley specific questions regarding
certain factors surrounding the murder. Under [963 P.2d 614] these
particular circumstances, we find § 1109 was applicable. Thus, the
trial court erred when it admitted the statements Tilley made to
Maddox at school just prior to his arrest. However, in light of
Tilley’s other post-crime statements to Wilma Rushing Bentley and
Gregg Maddox, we find this error was harmless beyond a reasonable
doubt with regard to the jury’s finding of guilt. Chapman v.
California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705
¶28 Citing Lewis v. State, 1984 OK CR 93, 695 P.2d 528,
Tilley contends in his fourth assignment of error that his waiver
of Miranda rights was "vitiated" when the police failed to
inform him that an attorney was attempting to contact him. Tilley
does not dispute that the police followed the procedures
established in Miranda. Rather, he contends his confession
should have been suppressed because the police deprived him of
information essential to his ability to knowingly waive his Fifth
¶29 This Court in Lewis found the eighteen-year-old
defendant’s Miranda waiver invalid because law enforcement
had failed to advise Lewis that an attorney hired by his parent
was attempting to locate him and was available. Subsequent to our
decision in Lewis, the United States Supreme Court decided
Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d
410 (1986). Dealing with the same issue, the Moran Court
held that the failure of police to inform a murder suspect of
telephone calls from an attorney, who had been contacted by the
suspect’s sister, did not undermine the validity of the suspect’s
waiver of his Miranda rights. In reaching this
determination, the Court stated "we have never read the
Constitution to require that the police supply a suspect with a
flow of information to help him calibrate his self-interest in
deciding whether to speak or stand by his rights." Moran,
475 U.S. at 422, 106 S.Ct. at 1141. The pivotal question is
whether the suspect voluntarily, knowingly and intelligently
waived his rights. "Events occurring outside of the presence of
the suspect and entirely unknown to him . . . have no bearing on
the [suspect’s] capacity to comprehend and knowingly relinquish a
constitutional right." Id.
¶30 While we are cognizant that States are free to provide greater
protections in their criminal justice systems than the Federal
Constitution requires, we now adopt the Supreme Court’s rationale
in Moran. Applying Moran to the present case, we
find Tilley’s waiver of his Fifth Amendment rights valid. Tilley
was fully advised of his rights and informed of the consequences
if he abandoned those rights. Tilley’s waiver of his Miranda
rights was not "vitiated" when the police failed to inform him
that an attorney was attempting to contact him. This proposition
of error is denied.
¶31 In his fifth proposition of error, Tilley contends reversible
error occurred when the trial court admitted State’s Exhibits 8
and 9. State’s Exhibit 8 was a photograph of the victim taken
while she was living. The victim appeared to be standing in a
gymnasium and was holding a basketball. Defense counsel’s
objection to its admission was overruled. State’s Exhibit 9 was a
copy of a poster dealing with the victim’s disappearance. The
poster also included a photograph of the victim. Defense counsel
failed to object to the introduction of this exhibit, and it was
admitted into evidence by the trial court. Thus, Tilley has waived
all but plain error with respect to the admission of State’s
Exhibit 9. See Robinson v. State, 1995 OK CR 25, 900 P.2d
¶32 "Photographs of [homicide] victims [taken while alive] are
inadmissible unless they are relevant to some material issue and
their relevancy outweighs the danger of prejudice to the
defendant. . . . [W]here there is no purpose in introducing such
pictures into evidence, such admission invokes the sympathy of the
jury and constitutes error." Valdez v. State, 1995 OK CR
18, 900 P.2d 363, 381, cert. denied, 516 U.S. 967, 116
S.Ct. 425, [963 P.2d 615] 133 L.Ed.2d 341, quoting
Staggs v. State, 1991 OK CR 4, 804 P.2d 456, 458.
¶33 We find no error occurred with the admission of State’s
Exhibit 9. During cross-examination of Wilma Rushing Bentley, an
issue arose as to when people learned that the victim was indeed
dead. Tilley was attempting to demonstrate that at the time Tilley
confessed to Rushing and Gregg Maddox, the public already knew the
victim was dead. If Tilley already knew the victim had been
discovered and was dead, his statements regarding the details of
the murder would not be as telling. Exhibit 9 was used by the
State on re-direct to demonstrate that information regarding the
victim’s discovery and death was not out until the day after
Tilley made his inculpatory statements to Rushing and Maddox.
¶34 On the other hand, the victim’s photograph contained in
State’s Exhibit 8 was not relevant to any issue in the case
against Tilley. While Kimberly James’ body was badly decomposed,
her identity was not an issue as defense counsel stipulated that
the body recovered in the Washita River was Kimberly James. The
State contends that exhibit 8 was necessary to lay a proper
foundation for the introduction of Tilley’s admissions to Wilma
Rushing Bentley. The State submits the picture was essential to
demonstrate that Tilley was confessing to the murder of Kimberly
James not another unknown victim. This contention clearly fails.
Thus, as State Exhibit 8 was not relevant to a material issue, we
find the trial court abused its discretion when it admitted this
exhibit. However, given the evidence against Tilley, we find that
this error did not contribute to the jury’s guilty verdict.
¶35 Tilley contends in his eighth proposition of error that
prosecutorial misconduct in both stages of the trial deprived him
of due process of law and a reliable sentence. Due to errors found
in the sentencing stage of trial, we will only address Tilley’s
allegations of misconduct during the guilt/innocence stage of
¶36 Tilley initially contends the State improperly argued facts
not in evidence. During his first stage closing argument, the
prosecutor told the jury that after confessing, Tilley took
Sheriff Noland to the exact place "where Kimberly’s shoe [was]
found." Defense counsel’s objection to this comment was overruled.
On appeal, Tilley contends this was a serious misstatement of the
evidence as no witness ever established that the shoe found
actually belonged to Kimberly James. Upon review, we find the
prosecutor’s comment constituted a reasonable inference arising
from the facts in evidence. Manuel v. State, 1990 OK CR 80,
803 P.2d 714, 717 ("both the defendant and the State must be
accorded a liberal freedom to argue the evidence and its logical
inferences during closing arguments.")
¶37 Tilley asserts next that the prosecutor improperly evoked
sympathy for the victim by repeatedly making reference to the fact
that Kimberly James was reduced to an "it" by Tilley’s actions.
Defense counsel failed to timely object to these comments. Thus,
Tilley has waived all but plain error. Hunt v. State, 1990
OK CR 37, 793 P.2d 1366, 1368; Quilliams v. State, 1989 OK
CR 55, 779 P.2d 990, 991-92; Harris v. State, 1989 OK CR
34, 777 P.2d 1359, 1362. No such error occurred here. While we
certainly do not condone the prosecutor’s improper attempts to
evoke sympathy for the victim in this case, the prosecutor’s
comments did not effect the jury’s verdict of guilt.
Issues Relating to Punishment
Stage of Trial
¶38 During the penalty phase of trial, the State called three
witnesses to present evidence in support of the death penalty.
[963 P.2d 616] Gregg Maddox returned to the stand to testify about
the shooting death of Herman Deagon. Tilley committed this murder
in Carter County just four days prior to the Kimberly James
murder. On March 2, 1993, Tilley was convicted of this murder and
sentenced to life imprisonment without the possibility of parole.
Former Carter County Sheriff, Bill Noland, also testified during
the penalty stage. Noland testified regarding Tilley’s voluntary
confession to the Deagon murder. Finally, the State presented
evidence regarding a rape allegation against Tilley. The alleged
rape occurred approximately a month before the Deagon and James
murders and involved a thirteen-year-old victim. Charges were
never filed against anyone in connection with this allegation.
¶39 Following the presentation of its case during the second stage
of trial, the State moved to incorporate all first-stage evidence
into the penalty phase and rested its case in aggravation.
Thereafter, the jurors were briefly excused from the courtroom and
defense counsel made the following announcement on the record:
I would announce to the Court that we have one witness we intend
to call, Mr. Noland, who has previously testified. I’d announce to
the Court we have two other witnesses available to testify in
mitigation, that being the defendant’s mother, who would testify
about his childhood and normal upbringing, and Mr. Donny Railey
(sic), the juvenile officer at Marshall County, who would testify
that the defendant had no prior contacts with the juvenile system.
At my client’s instructions, however, I’m not gonna call either
one of these witnesses.
As announced Tilley’s sole witness in the penalty phase of trial
was Sheriff Bill Noland. Noland simply testified that Tilley had
readily admitted committing both the James and Deagon murders, but
denied any involvement in the alleged rape.
¶40 In his ninth assignment of error, Tilley now contends his
death sentence must be vacated as the record is devoid of any
record demonstrating he expressly, knowingly, intelligently and
voluntarily waived his right to present mitigating evidence. We
¶41 The Eighth Amendment does not require mitigating evidence be
presented on a defendant’s behalf in the sentencing stage of a
capital trial, only that the defendant be given the opportunity to
present such evidence. Wallace v. State, 1995 OK CR 19, 893
P.2d 504, 512, cert. denied, 516 U.S. 888, 116 S.Ct. 232,
133 L.Ed.2d 160. However, in Wallace, 893 P.2d at 512-13,
this Court established the following guidelines to assist trial
courts when dealing with a defendant in a capital case who refuses
to allow the presentation of mitigating evidence during their
[T]he court must ensure the defendant has an understanding of his
or her rights both in the plea process and in the sentencing
(1) The court must inform the defendant of the right to present
mitigating evidence, and what mitigating evidence is.
(2) The court must inquire both of the defendant and his attorney
(if not pro se) whether he or she understands these rights.
(3) The court should also inquire of the attorney if he or she has
attempted to determine from the defendant whether there exists any
evidence which could be used to mitigate the aggravating
circumstances proven beyond a reasonable doubt by the prosecution.
(4) If such information has been given, the attorney must advise
the court what that mitigating evidence is; if the defendant has
refused to cooperate, the attorney must relate that to the court.
(5) The trial court must inquire of a defendant and make a
determination on the record whether the defendant understands the
importance of mitigating evidence in a capital sentencing scheme,
understands such evidence could be used to offset the aggravating
circumstances proven by the prosecution in support of the death
penalty, and the effect of failing to present that evidence.
(6) After being assured the defendant understands these concepts,
the court must [963 P.2d 617] inquire of the defendant whether he
or she desires to waive the right to present such mitigating
(7) Finally, the court should make findings of fact pursuant to
Grasso of the defendant's understanding and waiver of rights.
By using these guidelines, the Court concluded that trial courts
could provide valuable information and help preserve the record
for mandatory sentence review on appeal. Wallace, 893 P.2d
¶42 The State contends the Wallace guidelines are not
applicable to this case as Tilley did present one witness in
mitigation. Sheriff Noland’s brief testimony did not contain
mitigating evidence. Noland simply testified that Tilley freely
admitted committing the murders, but denied committing the alleged
rape. This evidence was offered to rebut the rape allegation and
cannot be construed as mitigating in nature. Nor did the trial
court or defense counsel consider this evidence mitigating in
nature. Defense counsel did not argue mitigating evidence during
his closing argument. Furthermore, although required by OUJI-CR
439, the trial court did not list any mitigating factors in the
sentencing phase jury instructions.
¶43 The guidelines established in Wallace are clearly
applicable to this case. Unfortunately, in light of the extremely
sparse record of Tilley’s waiver, this Court is unable to
determine whether the trial court substantially complied with the
Wallace guidelines. Thus, Tilley’s death sentence cannot
stand and this matter must be remanded to the district court for
resentencing. Trial courts and attorneys are cautioned to make a
complete record when this type of circumstance arises.
¶44 In his tenth assignment of error, Tilley asks this Court to
reconsider its decision that the Eighth Amendment does not require
mitigating evidence be presented on a defendant’s behalf.
Wallace, 893 P.2d at 511-12. We are not persuaded by Tilley’s
argument. This issue need not be addressed again at this time.
¶45 The remainder of Tilley’s allegations of error which
specifically attack the propriety of his death sentence are
rendered moot and need not be addressed.
Sufficiency of the
¶46 Tilley contends in his seventh allegation of error that he was
denied a fair opportunity to appeal his conviction because many
portions of the transcript are inadequate and incomplete. During
trial, the court reporter failed to record and transcribe numerous
bench conferences that were held outside the hearing of the jury.
Additionally, during first stage deliberations, the jury requested
that specific portions of Dr. Choi’s testimony be read back to
them. At the time this testimony was read back to the jury a
notation appears in the transcript stating: "Whereupon this court
reporter read back portions of the testimony of Dr. Choi as
requested by the jury."
¶47 While a complete stenographic record should be taken in all
capital cases, Van White v. State, 1988 OK CR 47, 752 P.2d
814, 821, failure to transcribe portions of a capital case is not
per se reversible error. See Parker v. State, 1994
OK CR 56, 887 P.2d 290, 294. Again, this Court strongly recommends
that all portions of the trial be transcribed; this would include
bench conferences (side bars) and conferences in Chambers. In the
present case, Tilley does not allege or demonstrate any error
occurred during one of the bench conferences or during the time
Dr. Choi’s testimony was read back to the jury. See Parker,
887 P.2d at 294-95. Moreover, due to error found in the sentencing
stage, the mandatory sentence review required by 21 O.S.1991, §
701.13 need not be conducted in this case. Therefore, this
proposition of error fails.
Ineffective Assistance of
¶48 Tilley asserts in his thirteenth assignment of error that he
was denied [963 P.2d 618] effective assistance of counsel in
violation of the Sixth, Eighth and Fourteenth Amendments. Tilley
contends that deficiencies in trial counsel’s performance resulted
in unreliable verdicts at both stages of his capital trial. We
need only address Tilley’s first stage claims of ineffective
¶49 Tilley maintains trial counsel was ineffective for failing to
insure a complete and adequate record for appeal and for failing
to object to instances of prosecutorial misconduct. For an
ineffective assistance of counsel claim to be valid a defendant
"must show (1) counsel’s representation fell below an objective
standard of reasonableness and (2) the reasonable probability
that, but for counsel’s errors, the results of the proceedings
would have been different." Boyd v. State, 1996 OK CR 12,
915 P.2d 922, 925, cert. denied, ___ U.S. ___, 117 S.Ct.
207, 136 L.Ed.2d 142; Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons
discussed in the seventh and eighth propositions of error, Tilley
has failed to show that trial counsel's performance was deficient
and that his deficient performance prejudiced the defense during
the first stage of trial. This assignment of error fails.
¶50 Pursuant to Rule 3.11 (B)(3)(b), Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App. (1995),
Tilley further requests that this matter be remanded to the
district court for an evidentiary hearing on his Sixth Amendment
claim of ineffective assistance of counsel. See Application
for Evidentiary Hearing on Sixth Amendment Claim, filed May 7,
1997. Tilley’s application for an evidentiary hearing is entirely
based on trial counsel’s alleged failure to adequately investigate
and present second-stage mitigation evidence that was available.
As this case is being remanded for resentencing, Tilley’s
application for an evidentiary hearing need not be addressed and
Cumulative Error Review
¶51 In his final proposition of error, Appellant contends the
accumulation of errors deprived him of a fair trial. No error
occurred in the guilt/innocence stage of trial which requires
reversal of Tilley’s conviction. With regard to the penalty stage
of trial, this allegation of error need not be addressed as this
Court grants relief.
¶52 Tilley’s conviction for First Degree Malice Aforethought
Murder is AFFIRMED, but his sentence of death is VACATED
and this matter is REMANDED to the district court for
SEX: M RACE: W TYPE: T MOTIVE: Sad.
VENUE: Johnson/Marshall counties.,Okla.
MO: Thrill-klller of elderly man and two 15-year-old girls
DISPOSITION: Life without parole on one count, 1993; condemned on