concurring in results.
I concur in the affirmance of the first degree murder conviction and the imposition of the death penalty. However, I find the Court’s vacating of the “great risk of death to more than one person” aggravating circumstance is not supported by the facts or prior case law.
In Smith v. State, 727 P.2d 1366, 1373 (Okl.Cr.1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987) and Hays v. State, 617 P.2d 223, 231 (Okl.Cr.1980), this Court upheld the aggravator under similar circumstances wherein the defendant pointed a gun in a threatening manner at bystanders.
Further, statements by Appellant that he had previously committed murder should be considered as evidence supporting this ag-gravator. The statements were not introduced as evidence of another crime, but were so closely related to the murder as to be admissible as part of the res gestae of the offense. In fact, the statements are direct evidence of his intent and the “great risk of death to more than one person” aggravator.
In footnote 95 the Court refers to an affidavit from an inmate in the Grady County Jail with Orduna. This ex-parte affidavit, obtained after trial and attached to Appellant’s brief, is not a proper part of the record on appeal and should play no part in our review of the ease. This Court should restrict its review to the record created through the trial court proceedings or matters properly added through the prescribed supplementation process set out in Rule 3.11 of this Court’s rules.
Further, in reviewing Appellant’s claim that the trial court’s determination of his competency violated due process, the opinion reviews for plain error only. I agree with that scope of review but base that decision on this Court’s decision in Simpson v. State, 876 P.2d 690, 694-695 (Okl.Cr.1994). This Court should use its own case law where applicable rather than referring to federal law as this Court has the ability to apply our evidence code differently than the federal courts. The scope and method of plain error review was set out in Simpson.