concurs in part/dissents in part.
¶ 1 I concur with the Court’s decision to affirm the conviction in this case, however, while I agree some error occurred in the punishment phase of the trial, a jury should be allowed to make the decision as to the appropriate sentence in a resentencing proceeding rather than this Court modifying to Life Without Parole.
¶2 Initially, the Court spends too much time in its discussion of Appellant’s fourth proposition of error regarding the second degree murder instructions. In Willingham v. State, 947 P.2d 1074, 1081-82 (Okl.Cr.1997) this Court held that murder in the second degree is not a lesser included offense to malice murder. That should be the Court’s analysis of Appellant’s allegation of error as to the instructions. Appellant in this case received more than he was due by the trial court giving a second degree murder instruction. Therefore, based on a plain error review, there is no error as to this proposition.
¶3 I disagree with the Court’s analysis concerning the second stage issue contesting the especially heinous, atrocious or cruel ag-gravator in this case. As the Court correctly states at ¶44 “when the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, this Court reviews the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Allen v. State, 1996 OK CR 9, ¶ 39, 923 P.2d 613, 621.” The Court then proceeds to dismiss the mental torture element of the “especially heinous, atrocious or cruel” aggravator based on an accounting of minutes. Any person who has taken the time to watch the second hand on a watch sweep through sixty seconds, realizes that one minute, in and of itself, can be an extended period of time. When those sixty seconds are accompanied by threats, physical abuse, and gunshots into the body, the excruciating nature of the passing second hand is amplified. Therefore, this Court should never render a decision which in some way appears to set a specific number of seconds or minutes which must elapse prior to a victim being deemed to have experienced mental torture prior to succumbing to the actions of a murderer. As Judge Lile has pointed out in his separate writing, the evidence reveals a time line involving mental torture which extends beyond that taken into consideration by the Court in this opinion. It is because of this fact situation that I cannot accept the Court’s statement at ¶ 45 “in this case there is no such evidence of mental torture during the brief encounter between Washington and Appellant. Washington’s fear was no different than the fear suffered by any other victim who is facing the prospect of death.”
¶ 4 The facts presented in aggravation are sufficient, when reviewed under the standard set forth in Allen, 923 P.2d at 621, to support the aggravator of “especially heinous, atrocious, or cruel,” both as to the mental torture element and the conscious physical suffering. Therefore, this Court should allow a jury to make the determination as to whether or not *981that sufficient evidence, when considered with any mitigation evidence presented by the defendant, warrants the' death penalty in this ease. I do not believe the Court has properly analyzed the body of evidence which is available in this case and has given too much weight to its concern about the number of minutes that passed rather than the acts which were committed by the defendant in this case, both prior to and during the homicide.
¶ 5 I agree with the Court that several errors occurred during the course of trial counsel’s second stage representation. However, the Court continues to cite an improper standard of review regarding claims of ineffective assistance of counsel. The criteria set out in Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for evaluating effectiveness of counsel has since been further explained in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). As the Court said in Lockhart,
[an appellant] alleging prejudice must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S., at 687, 104 S.Ct., at 2064; see also Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986) (“The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect”); Nix v. Whiteside, 475 U.S. [157], at 175, 106 S.Ct. [988], at 998[, 89 L.Ed.2d 123 (1986)]. Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not. entitle him. See [United States v.] Cronic, 466 U.S. [648], at 658, 104 S.Ct. [2039], at 2046[ 80 L.Ed.2d 657 (1984)].
506 U.S. 364, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993) (footnote omitted). Although we must consider the totality of the evidence which was before the factfinder, our “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069; Fisher v. State, 736 P.2d 1003, 1012 (Okl.Cr.1987). Therefore, applying the Lockhart standard, the Court should determine whether the trial was rendered unfair and the verdict rendered suspect or unreliable, based on the actions of trial counsel.
¶ 6 In this case, several errors occurred by trial counsel relating to both pre-trial and penalty phase issues. In addition, the State’s failure to adhere to the requirements established by this Court regarding victim impact evidence constituted error which could have been alleviated had the proper procedures been followed. See Cargle v. State, 909 P.2d 806 (Okl.Cr.1995), cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). First, as the opinion notes at footnote 15, the State failed to comply with the requirements of Cargle and the Court failed to hold an in camera hearing to determine the admissibility of the victim impact evidence. Had the proper notice been given and the hearing conducted in accordance with the procedure we set out in Cargle, the improper evidence admitted as victim impact evidence would not have been admitted at trial.
¶ 7 I disagree to an extent with the Court’s characterization as to what would be admissible and not be admissible in the letter submitted by the victim’s father. However, I agree that a small portion of that letter was not appropriate within the context of victim impact evidence. The real issue concerning the letter is the right of confrontation which was not raised, as we discussed in Conover v. State, 933 P.2d 904, 923 (Okl.Cr.1997). However, as we recently set out in Short v. State, 1999 OK CR 15 that right can be waived and may be a matter of trial strategy. Due to the fact an in camera hearing was not conducted prior to the admission of the evidence in this case, this Court has not been presented with a record which would allow us to answer that question.
¶ 8 Second, once again, an error was made as it related to the failure to present evi*982dence in mitigation. In Wallace v. State, 893 P.2d 504, 512-13 (Okl.Cr.1995), this Court set out a procedure to be followed by a defendant and counsel if an election was made not to present mitigating evidence. The trial court failed to require defense counsel to make that showing and the record before us does not answer the question of why the mitigation evidence was not presented. Because of these errors, I agree this case should be remanded for resentencing. I agree with Judge Lile the evidence presented is sufficient to support the aggravator and to sustain the sentence of death. However, because potential mitigation evidence was not presented and there is not an appropriate waiver of that evidence in the record, I concur a resentencing is necessary. There is great potential that a trier of fact would find the evidence sufficient, and the proper mitigation evidence, when weighed against the aggravating evidence, would not mitigate the determination that a death sentence was still appropriate.
¶ 9 Further, in ¶ 57 addressing trial counsel’s failure to object to the admission of the victim impact evidence, it appears this Court has improperly applied the standard of review for ineffective assistance of counsel claims utilized in Capital Post-Conviction cases. See Walker v. State, 933 P.2d 327, 333-34 (Okl.Cr.), cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). The review should be one for plain error based upon counsel’s failure to raise an objection. See Short, 1999 OK CR 15, ¶ 61, 980 P.2d 1081 citing Simpson v. State, 876 P.2d 690, 698-699 (Okl.Cr.1994) (counsel’s failure to raise an objection to a newspaper article offered as victim impact evidence waived all but plain error review). In addition, I cannot join in some of the syntax utilized to discuss the appropriate content of the victim impact testimony. The Court seemed to be hypersensitive to the use of the reference to the Bible by the victim’s father in his letter when he wrote “our Bible say’s (sic) eye for eye.” The issue should not be the source of a quote but whether the argument or evidence goes to an emotional response, rather than one based on the law and facts. Accountability and personal responsibility is well documented in the scriptures and history reveals those principles served as the foundation for the body of law we apply today. Whether the reference is to the Bible or Thoreau, the focus should be on the response sought rather than the source of the quote.
¶ 10 I agree with the Court’s discussion that a substantial amount of improper argument was presented to the jury by the prosecution in this case. As we have noted before it continues to confuse this Court why the State would seek to “snatch[] defeat from the jaws of victory” through improper comment. Tucker v. State, 499 P.2d 458, 461 (Okl.Cr.1972). See also Pickens v. State, 850 P.2d 328, 344 (Okl.Cr.1993); Sandersfield v. State 461 P.2d 1019, 1020 (Okl.Cr.1969). Such is the case here. The issue of guilt is undisputed by the evidence. The issue of proof of the aggravating circumstance beyond a reasonable doubt is sufficient to meet that requirement. The greatest example of professionalism is to strongly advocate within the scope of the rules of advocacy. Failure to adhere to those rules denigrates the entire judicial process. Therefore, I agree the sentence of death must be vacated, but join with Judge Lile in urging its remand for resen-tencing so that a jury can make the appropriate determination as to the sentence warranted by the law and evidence in this case.