specially concurring:
I concur that the judgment and sentence of the District Court should be affirmed, based on the record before us on direct appeal. I take exception to the statement that we need not conduct a proportionality review in this case pursuant to 1985 Okl. Sess. Laws, ch. 265, § 1. We have previously held that application of this law to those cases, pending on appeal at the time of the statute’s enactment, would render the statute ex post facto law. Green v. State, 713 P.2d 1032, 1041 (Okl.Cr.1985). Therefore, the proportionality review mandated by 21 O.S.1981, § 701.13(C), still should be conducted. I do not believe that our failure to apply the proportionality review in this case constitutes error, however, because I have compared this sentence to those eases affirmed1 or modified2 by this Court, and we find the sentence to be permissible.
I also wish to express my concern over the allegation of ineffective assistance of trial counsel. My chief concern with this allegation arises from the failure of the attorney to file a motion to supress evidence seized from the appellant’s home. The test for ineffectiveness of counsel, under the Sixth Amendment, is set out by the United States Supreme Court, as follows:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Secondly, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 (1984).
It is clear to me that a reasonably competent attorney would have filed a motion to suppress all physical evidence derived from the appellant’s home.
The facts relating to the Fourth Amendment issue are as follows: Officer Gibson was investigating the missing person report concerning the victim. His investigation led to the appellant’s residence, for the reasons explained more fully in the majority opinion. See supra at 1038-1039. Upon ariving at the home, he observed on the front porch what he thought was a blood smear. He also discovered a tooth. After talking to neighbors and contacting the person who worked as landlady, he searched the back of the house. He then obtained permission from the landlady to *1043search the residence, pried open the lock, and went inside.
The State concedes, and properly so, that the consent from the landlady was insufficient to support the warrantless search of the appellant’s home. See Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). The State seeks to justify the search under the exigent circumstances exception to the Fourth Amendment. The State claims exigent circumstances were shown in Officer Gibson’s testimony that he thought Mr. Wiley might have been inside the residence. Certainly, an emergency search of premises to discover an injured victim is permissible under the Fourth Amendment. See Chaney v. State, 612 P.2d 269, 277 (Okl.Cr.1980), rev’d on other grounds sub. nom. Chaney v. Brown, 730 F.2d 1334 (10th Cir.1984). On the otherhand, there is no “murder scene” exception to the warrant requirement. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
It would appear that Officer Gibson’s actions negate a finding of exigent circumstances. The officer interviewed several witnesses, searched the back of the house, and obtained permission to search from the landlady before he entered the house, presumably to search for the victim. However, the issue was never squarely presented to the trial court, and the proper questions regarding the existence of exigent circumstances were never raised. I, therefore, hesitate to declare the search unconstitutional without further inquiry being made. And, without a finding that the search was unconstitutional, I cannot say the appellant has satisfied the prejudice prong of the Strickland test. Therefore, based on this record, I do not believe the conviction can be reversed.
However, it would appear that the resolution of this issue can, and should, be made by the trial court on appellant’s application for post-conviction relief. In that forum, the proper questions can be raised, and an adequate record made, to determine whether appellant was prejudiced by counsel’s ineffectiveness.
For the above and foregoing reasons only, I concur in the majority’s decision to affirm the judgment and sentence herein.
. Liles v. State, 702 P.2d 1025 (Okl.Cr.1985); Cooks v. State, 699 P.2d 653 (Okl.Cr.1985); Banks v. State, 701 P.2d 418 (Okl.Cr.1985); Cartwright v. State, 695 P.2d 548 (Okl.Cr.1985); Brogie v. State, 695 P.2d 538 (Okl.Cr.1985); Bowen v. State, 55 O.B.J. 2520 (Okl.Cr.1985); Stout v. State, 693 P.2d 617 (Okl.Cr.1984); and Nuckols v. State, 690 P.2d 463 (Okl.Cr.1984); Robison v. State, 677 P.2d 1080 (Okl.Cr.1984); Dutton v. State, 674 P.2d 1134 (Okl.Cr.1984); Stafford v. State, 669 P.2d 285 (Okl.Cr.1983); Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983); Stafford v. State, 665 P.2d 1205 (Okl.Cr.1983); Davis v. State, 665 P.2d 1186 (Okl.Cr.1983); Ake v. State, 663 P.2d 1 (Okl.Cr.1983); Parks v. State, 651 P.2d 686 (Okl.Cr.1982); Jones v. State, 648 P.2d 1251 (Okl.Cr.1982); Hays v. State, 617 P.2d 223 (Okl.Cr.1980); and, Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), modified on other grounds, sub. nom., Chaney v. Brown, 730 F.2d 1334 (10th Cir.1984).
. Kelly v. State, 692 P.2d 563, (Okl.Cr.1984); Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980); as modified, 688 P.2d 342 (Okl.Cr.1984); Morgan v. State, No. F-79-487 (Okl.Cr.Nov. 14, 1983); (Unpublished); Johnson v. State, 665 P.2d 815 (Okl.Cr.1982); Glidewell v. State, 663 P.2d 738 (Okl.Cr.1983); Jones v. State, 660 P.2d 634 (Okl.Cr.1983); Driskell v. State, 659 P.2d 343 (Okl.Cr.1983); Boutwell v. State, 659 P.2d 322 (Okl.Cr.1983); Munn v. State, 658 P.2d 482 (Okl.Cr.1983); Odum v. State, 651 P.2d 703 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Franks v. State, 636 P.2d 361 (Okl.Cr.1981); Irvin v. State, 617 P.2d 588 (Okl.Cr.1980).