# Tilford v. State > Court of Criminal Appeals of Oklahoma · February 21, 1968 · 39 O.B.A.J. 379 URL: https://www.frixlaw.com/law-library/cases/9846809 ## Case - **Full name:** Freddie Lee TILFORD, Plaintiff in Error, v. the STATE of Oklahoma, Defendant in Error - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** February 21, 1968 - **Citations:** 39 O.B.A.J. 379; 437 P.2d 261; 1967 OK CR 91; 1968 Okla. Crim. App. LEXIS 252 - **Precedential status:** Published - **Opinion:** On rehearing by Bussey - **Judges:** Bussey, Nix, Brett - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9846809 ## How later opinions describe it (automated extraction) - affirming conviction of Lewis’s co-defendant ## Opinion text MEMORANDUM OPINION ON REHEARING BUSSEY, Judge. On May 31, 1967, this Court affirmed the conviction of the plaintiff in error, hereinafter referred to as defendant, wherein he had been convicted of the offense of Murder. At the conclusion of his trial, the jury assessed punishment at death in the electric chair. Thereafter, the matter was submitted for reconsideration on Petition for Re-hearing, under the rules of this Court. In reviewing the allegations contained in the Petition for Re-hearing, this Court, on the 27th day of July, 1967, ordered an Evidentiary Hearing to be conducted, the pertinent parts of said Order being as follows: “WHEREAS, Plaintiff in Error has filed a Petition for Rehearing in the above styled and numbered cause, alleging that the trial court made the following statement in the presence of the jury: ‘THE COURT: Let the record show that the court has had the opportunity to observe the witness under both direct examination and under extensive, highly repetitious cross-examination and the court is impressed with the fact that the witness is obviously not only sane, but quite competent. His answers are straightforward, he is coherent in all material *269 respects and his appearance and demeanor on the stand display the utmost assurance. He has had no difficulty in detailing past events under the most grueling cross-examination and therefore, Mr. Wise, your motion for mistrial will he overruled and the court is convinced beyond any doubt that the witness is not only a competent witness, but has basically testified to the truth in this case. Your objections will be overruled.’ AND WHEREAS, it is necessary for a. determination of this issue to be properly considered by this Court that a hearing he conducted in the District Court of ■Oklahoma County at which testimony of the trial Judge and counsel for the defendant and counsel for the State be given an opportunity to present testimony on this issue. IT IS THEREFORE THE ORDER OF THIS COURT that the Presiding Judge of the Seventh Judicial District direct that a hearing be conducted on the issue so raised, transcribe the evidence presented thereon, and transmit a copy of said record to this Court within a reasonable time. ⅜ ⅜ ⅜ » Thereafter, on September 6th and Sep-tember 11th, 1967, proceedings were had in said cause, the same were transcribed .and filed with this Court on October 20, 1967. In the Evidentiary Hearing the first witness was Judge Jack R. Parr, who was ■the Trial Judge in the original proceeding. He testified to the fact that the conversation complained of by defendant was held .at the Judge’s bench, in low monotones and in his opinion, the jurors could not have "heard the conversations. Mr. Curtis P. Harris, the then County Attorney who tried the original case, testified essentially to the same testimony as that given by Judge Parr, and he too felt that none of the jurors could have heard any remarks made by Mr. Wise or the Court at that time. Mrs. Mary O. Harris, one of the jurors, and the first witness for the > defense, testified that she did not hear the complained of conversation. The defense attorney then asked her if she did not state that “she had heard and remembered every word of the conversation” in a discussion had with her the day before, to which she replied that this was an opinion she had formed. She further testified that she heard some few words, but no one sentence. She stated that because of the circumstances and the fact that the defense attorney made many objections and asked to approach the bench, she reached the opinion that they were discussing the competency of the witness Pendleton, but that she actually did not hear any conversation. The next defense witness was Willie Jacobs, an alternate juror who stated:“Yes, I did hear. I couldn’t hear part, you know what I mean, the exact words that he said, all of them.” Pie further stated that the Judge’s tone of voice was just about normal, not an outburst and not a soft tone. His testimony further revealed that he was closer to the Judge and the Court Reporter than any other juror and he did hear Judge Parr state that the witness Pendleton was competent to testify. Shortly thereafter the trial ended and he was excused as an alemate juror and did not enter the jury room when they were deliberating. The next witness was Harley S. Rohrer, the other alternate juror, who testified that he heard some words, but it had been so long that he could not say exactly what he had heard. It was his impression that the Judge ruled that Pendleton’s testimony was competent. He, too, was closer to the Judge and the Court Reporter than any of the regular jurors, and he testified that although he heard a part of Judge Parr’s statement, it was a whispered conversation. The next witness was juror Mary Louise Schott, who testified that although the complained of conversation was whispered, *270 she did hear parts of it, but did not give it her attention. The next witness was juror Francis W. Holt who testified that the complained of conversation was in subdued tones; that he did hear the Court make some statements ; that he thought what he heard was in reference to the competency of the witness. The next witness was Clay Wise, the defense attorney at the trial, who testified that the Judge spoke in a subdued voice and it was his opinion that a juror, if he really wanted to, could hear the statement of the Court; that he was standing in front of the Court Reporter and could hear the conversation and that his “hearing was bad, very bad.” The next witness called was Mary Jo Nelson, a reporter for the Oklahoma Publishing Company, who testified that she was standing very close to the Judge’s bench and that she heard the Judge’s conversation, and that the Judge spoke louder than a whisper, but not a normal tone. The last witness called was Freddie Lee Tilford, the defendant, who testified that he heard the Judge’s conversation. For the record Mr. Wise then testified that he and Mr. Oyler had tried to contact all of the jurors, but were unable to reach four of them; however, he did want the record to show that they had made every effort to contact all of the jurors. The question before us for determination is whether enough of the trial judge’s statement above referred to, was heard by the jurors so as to create a prejudice against the defendant. There is no question but that if any of the jurors heard the judge’s statement that “the court is convinced beyond any doubt that the witness is not only a competent witness, but has basically testified to the truth in this case” this remark would constitute reversible error, for it is clearly a comment on the weight and credibility to be given the testimony of the witness Pendleton. However, on the record before us, we do not find that any of the jurors who participated in the deliberation heard this remark or were influenced by it. Counsel for defense were given every opportunity to produce evidence that the complained of remarks were heard by the jurors who participated in the verdict, but they failed to meet this burden, although we are confident that they exercised diligence in attempting to secure such evidence. It is significant that at the time the alleged remarks were made that no specific objection was taken to the remarks but only to the ruling of the court. Moreover, we observe that this specific assignment of error was not set forth in the Motion for New Trial and that it was- not until the petition for rehearing that great emphasis was placed on this alleged irregularity. We must, therefore, conclude that this assignment of error is not supported by the record and for this reason hold that it does not form either a basis for a modification or a reversal of the judgment and sentence rendered by the jury. This Court will not presume either a waiver of a constitutional right from a silent record, or will it presume error and it is incumbent upon one asserting error on appeal to support the alleged assignment of error by evidence properly preserved in the record. Having dealt fully with the other assignments of error in our original opinion, we are of the opinion that the judgment and sentence appealed from should be, and the same is hereby, AFFIRMED. It is the further order of this Court that the judgment and sentence of the District Court of Oklahoma County be carried out by the electrocution of the defendant Freddie Lee Tilford by the Warden of the State Penitentiary at McAlester, Oklahoma, on Friday, April 26, 1968. BRETT, J., concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9846809. Public record. Not legal advice.