concurring in part, dissenting in part:
I concur in the affirmance of appellant’s conviction; however, with regard to the improper “expert” opinion given by Ms. Joyce Gilchrist, I continue to adhere to the views expressed in my opinion in McCarty v. State, 765 P.2d 1215, 1219 (Okla.Crim.App.1988). I cannot join the majority opinion to the extent it seems to place the burden upon the defendant to impeach improper expert opinions by State witnesses through the use of expert witnesses for the defense. Majority, at 570. Nonetheless, on this record, I agree that McCarty is distinguishable and that no reversible error occurred.
Furthermore, where, as here, the defendant has offered evidence of mitigating circumstances, it is unnecessary and confusing to the jury to give the so-called “anti-sympathy” instruction during the second stage as evidenced by the recent split of authority between the Tenth Circuit in Parks v. Brown, 860 F.2d 1545, 1552-59 (10th Cir.1988), and the Fifth Circuit in Byrne v. Butler, 847 F.2d 1135, 1139-40 (5th Cir.1988). While I agree it is improper to focus on the use of the words “any” or “mere” I find that the use of an “anti-sympathy” instruction in the second stage, where mitigating evidence has been introduced, improperly undermines the jury’s consideration of mitigating evidence in violation of the Eighth Amendment. See Parks, 860 F.2d at 1553. I also continue to adhere to the views expressed in my special concurrence in Foster v. State, 779 P.2d 591 (Okla.Crim.App.1989), regarding the validity of the heinous, atrocious or cruel aggravating circumstance; however, I yield to the majority view as a matter of stare decisis.
Therefore, because I find the “anti-sympathy” instruction improper in the second stage, I would vacate the death sentence and remand for resentencing under the majority view enunciated in Cartwright v. State, 778 P.2d 479 (Okla.Crim.App.1989).