Concurs in Part, Dissents in Part:
{ 1 Appellant has shown no error warrant ing reversal of his conviction or death sentence for the murder of Jerald Thurman. The rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which concerns us in Appellant's Proposition Two, is nothing more, or less, than this:
[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious seruples against its infliction.
Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777.1
T2 The Court's exhaustive analysis of the trial court's voir dire and subsequent exclusion of several jurors opens with a critical concession that the trial court did not exclude any juror in violation of Witherspoon or the Eighth Amendment. The Court then finds the trial court abused its discretion by denying defense counsel an opportunity to question jurors before excluding them. The trial court thus reached an apparently correct constitutional result by incorrect means, when it denied the defense an opportunity to question some seven (7) prospective jurors who were, it certainly seems, properly excluded anyway.
T3 The manner and extent of voir dire, much less the complex process of capital voir dire, cannot be prescribed by any definite, unyielding rule, Strube v. State, 1987 OK CR 144, 1 9, 789 P.2d 1013, 1015, but rests in the sound discretion of the trial judge. Sanches v. State, 2009 OK CR 31, ¶44, 223 P.3d 980, 997. An abuse of discretion is "a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented." C.L.F. v. State, 1999 OK CR 12, ¶5, 989 P.2d 945, 946. Respecting the exercise of that discretion, the prevailing law in capital cases, at least until today, has been very clear.
*1006It is not an abuse of discretion to deny counsel an opportunity to rehabilitate a potential juror if the trial court has sufficiently questioned the jwror to make an informed decision. The trial court is not required to allow the parties to rehabilitate potential jurors.
Stouffer v. State, 2006 OK CR 46, ¶17, 147 P.3d 245, 257 (internal citations omitted; emphasis added).
T4 Even more recently, in Postelle v. State, 2011 OK CR 30, 267 P.3d 114, the Court said:
Where the trial court has appropriately questioned prospective jurors regarding their eligibility to serve on a capital jury, it is mot error to deny defense counsel a chance to rehabilitate jurors exeused for inability to impose the death penalty.
Postelle, 2011 OK CR 830, ¶51, 267 P.3d at 135-36 (quoting Coddington v. State, 2011 OK CR 17, ¶10, 254 P.3d 684, 695)(emphasis added); see also, Harmon v. State, 2011 OK CR 6, 248 P.3d 918, 930, where the Court said:
When the proper questions have been asked by the trial court to determine whether prospective jurors can sit in the case, it is not error to deny defense counsel an opportunity to rehabilitate the excused jurors.
Harmon, 2011 OK CR 6 ¶ 21, 248 P.3d at 930 (quoting Littlejohn v. State, 2004 OK CR 6, ¶ 49, 85 P.3d 287, 301-02) (emphasis added).
15 In Brown v. Sirmons, 515 F.3d 1072 (10th Cir.2008), Chief Judge Henry said for the Tenth Circuit Court of Appeals:
trial court must determine whether the [juror] could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment. The trial court, however, retains great latitude in conducting voir dire, and the Constitution does not require an additional opportunity to make a searching inquiry. A trial judge's determination of a potential juror's bias under this standard is a factual finding entitled to a presumption of
Brown, 515 F.3d at 1079 (internal citations and quotations omitted; emphasis added); see also, id. at 1081 (noting that capital habe-as petitioner "concedes there is no constitutional right to rehabilitate" a juror in capital voir dire).
16 The majority incorrectly suggests that a trial court earns additional appellate court deference to its decisions to exclude jurors under Witherspoon to the degree that it first allows defense counsel to engage in rehabilitative mini-inquisitions on every juror who vacillates on a questionnaire or during the prescribed death qualification questions.2 The Supreme Court recently held that exactly the opposite is true:
The Court in Witt instructed that ... reviewing courts are to accord deference to the trial court. Deference is owed regardless of whether the trial court engages in explicit analysis regarding substantial impairment; even the granting of a motion to excuse for cause constitutes an implicit finding of bias. The judgment as to whether a venireman is biased is based upon determinations of demeamor and credibility that are peculiarly within a trial judge's province. Such determinations [are] entitled to deference even on direct review; the respect paid such findings in a habeas proceeding certainly should be no less. And the finding may be upheld even in the absence of clear statements from the juror that he or she is impaired because many veniremen simply cannot be asked enough questions to reach the point where their bias has been made unmistakably *1007clear; 'these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Thus, when there is ambiguity in the prospective jwror's statements, the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] de-meamor, [is] entitled to resolve it in favor of the State.
Uttecht v. Brown, 551 U.S. 1, 7, 127 S.Ct. 2218, 2223, 167 L.Ed.2d 1014 (2007) (internal citations and quotations omitted; brackets in original; emphasis added).
17 Our reliance on the trial judge's peceu-liar ability to observe the demeanor and credibility of potential jurors is particularly warranted when there is "every indication that the judge indeed applied the correct standard." Darden v. Wainwright, 477 U.S. 168, 203, 106 S.Ct. 2464, 2483, 91 L.Ed.2d 144 (1986)(quoting Witt, 469 U.S. at 481, 105 S.Ct. at 856). There is no showing here that the trial court's questioning was insufficient to permit an informed decision about the qualifications of these prospective jurors. The majority's recitation of the trial court's conduct of voir dire proves way too much; it shows an extensive, thoughtful investigation of the jurors' qualifications.
18 The majority cites an aberrant and impoverished precedent in Mitchell v. State, 2006 OK CR 20, 136 P.3d 671. The trial court's voir dire in Mitchell was one-sided to a degree approaching judicial bias; it was "far from even-handed," granting "almost totally unconstrained questioning/argument from the State during voir dire" while all but categorically denying such voir dire to the defense. Id., 2006 OK CR 20, ¶48, 136 P.3d at 694. The trial court in Mitchell also "allow[ed] and even assisted] in protracted attempts to rehabilitate jurors who expressed an unwillingness to consider" any sentence but death. Id., 2006 OK CR 20, ¶47, 136 P.3d at 694. Mitchell is invoked today to reverse a trial court that was committed to seating a fair death-qualified jury and succeeded in doing so, even according to the majority.
19 Nor did the Court see "this same claim," or resolve it the same way, in Cudjo v. State, 1996 OK CR 43, 925 P.2d 895. In Cudjo, the trial court limited its death qualification voir dire to a single, legally erroneous question. The only two venire-persons who expressed any reservations about the death penalty in response to this single question were then immediately excused. Id., 1996 OK CR 43, ¶11, 925 P.2d at 899. Finding a clear violation of Witherspoon based on an erroneous trial court examination, the Court in Cudjo held that "[wlithout further inquiry into their views regarding the death penalty, we cannot conclude [the excluded jurors'] views would have prevented or substantially impaired the performance of their duties as jurors." Id.
4 10 In profound contrast to Mitchell and Cudjo, the trial court here asked the legally correct questions and excluded jurors who stated that they could not follow the law. Neither Mitchell, nor Cudjo, nor any controlling Supreme Court case holds that a trial court's denial of defense requests to question prospective capital jurors who were properly excluded under Witherspoon denies "due process" or a "reliable sentencing hearing." Form has conquered substance, and appellate strict serutiny has supplanted trial court discretion, in death-qualifying voir dire.
§11 I concur that double jeopardy bars Appellant's death sentence in the Mary Bowles murder. But the ad hoc litany of "serious and potentially prejudicial" errors cited by the majority to reverse. the death sentence in the murder of Jerald Thurman is unconvincing. These errors had no prejudicial effect on the reliability or fundamental fairness of the sentence for this heinous crime. I therefore respectfully dissent to remand for re-sentencing in Count IL.
. A juror is properly excused for cause in a capital case if his or her views regarding the death penalty would "prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985) (internal quotation marks omitted).
. The real world outcome of these interrogative exercises deemed so salutary by the majority can be seen in the examination of Juror EM., who became so "angry," "adverse," and "hateful" during further questioning by defense counsel about her "civic duty" and her death penalty views that the trial court ultimately felt compelled to excuse her for cause. See also, Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.1987), where the Tenth Circuit Court of Appeals pointed to a 1979 study by Dr. Craig Haney indicating that "prejudicial [to the defendant] alteration in [juror] attitudes resulting from death-qualifying voir dire is a direct function of how extensive the questioning becomes" Trujillo, 815 F.2d at 607 n. 5 (citing C. Haney, On the Selection of Juries: The Biasing Effects of the Death Qualification Process, 8 L & Hum. Behav. 121 (1984)){emphasis added).