concurring in results:
Because I find the judgment and sentence in this case should be affirmed, I agree with the outcome here. Because I do not find part of the analysis, including the victim impact evidence discussion, is at all correct, I concur only in result. In addition, while I compliment my colleague for the work put into his analysis of the statutory framework allowing victim impact evidence set out in his Concur In Results in Ledbetter v. State, 933 P.2d 880 (Okl.Cr.1997), and Conover v. State, 933 P.2d 904 (Okl.Cr.1997), I take this opportunity to set out a more complete review of the statutes authorizing victim impact evidence.
I.
Before we deal with the victim impact evidence, there is one point which must be addressed, because it is simply wrong. The opinion (page 188) states “[v]ietim impact evidence which is limited by the rules of evidence and the requirements of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment does not become a vague and overbroad ‘superaggravator.’” (emphasis added).
The whole point of Payne was that victim impact evidence was not governed by the Eighth Amendment. See Cargle v. State, 909 P.2d 806, 826 (Okl.Cr.1995), cert. denied, — U.S. -, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996) (“We must be cognizant of the fact that, although it does not violate the Eighth Amendment, evidence may be introduced ‘that is so unduly prejudicial that it renders *195the trial fundamentally unfair,’ thus implicating the Due Process Clause of the Fourteenth Amendment. Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991).”). Therefore, any language here which deals with the Eighth Amendment is incorrect.
II.
Concerning the use of victim impact evidence, the flaw in my colleague’s discussions in Ledbetter, Conover, and now footnote 3 of this opinion lies in his inability to reconcile the semantics of 21 O.S.Supp.1992, § 701.10(C), which specifically reads that “ the state may introduce evidence about the victim and about the impact of the murder on the family of the victim,” and the provisions of 22 O.S.Supp.1993, §§ 984-984.2, which utilizes “victim impact statement” versus “evidence”. Regrettably, in the capital murder statute itself, the Legislature gave the courts no guidance as to what the scope of that evidence is.
Instead of turning to the provisions of 22 O.S.Supp.1993, § 984(1) to determine the scope and manner of presentation of victim impact evidence, my colleague previously proposed to allow only evidence about the victim and the impact of the murder on the family of the victim at the sentencing stage of the trial itself, then allow introduction of a statement (analogous to the defendant’s right of allocution) at the actual, formal sentencing proceeding. There are two main flaws in this analysis.
A.
First, I see nothing in the Evidence Code prohibiting the introduction of a statement, any more than I see a requirement that all evidence be introduced in a question-and-answer format. The Court’s opinion in this case has recognized and adopted that position. The validity of that determination is more than merely a pronouncement by this Court. If one subscribes to the generally accepted precept of what “evidence” is — that which tends to show that a fact of consequence to the resolution of a controversy either exists or does not exist — it seems obvious that, from a strictly evidentiary point, a statement which otherwise meets constitutional requirements is admissible, subject to the demands of relevancy. See 12 O.S.1991, §§ 2401-2403.1 This would be the case whether the evidence is presented in a question-and-answer format (certainly allowable, see Cargle, 909 P.2d at 828, or in a statement form. Id.)2
B.
Nor do I agree with the proposed rationale that a statement would be allowed only in the *196formal sentencing stage, after the factfinder has rendered its punishment. A cursory look at what transpires during formal sentencing shows the absurdity of this theory.
(1) If the jury did not recommend the death penalty, the defendant has been “acquitted” of it, and all the written statements in the world will not change the result in the formal sentencing hearing.
(2) If the jury did, recommend the death penalty in second stage, the introduction of a statement by victim’s survivors would have no influence whatsoever during formal sentencing, as the death penalty has already been given, and it would take a very brave judge indeed to countermand the jury’s recommendation.3
In either case, the introduction of the statement in the formal sentencing hearing serves no purpose, and the Legislature has committed a vain act. The substantive effect of the proposed analysis is the Legislature intended to merely toss the victims of crime a legal placebo to placate them for a political purpose. I cannot ascribe to that cynical of a view regarding the legislative process.
Regardless of the personal feelings of the judges of this Court, the Legislature has indicated that victim impact evidence has a proper place in a capital murder trial. This Court’s job is to review that evidence, along *197with all other evidence presented, to determine whether its introduction presents error — and if so, whether that error rises to the level of a Due Process violation requiring reversal. To do more is to legislate from the bench, an action we all should agree is inappropriate and not a function of the judicial branch of government.
III.
One other thing warrants comment. I am puzzled and disturbed by a statement in the opinion (page 189, the last paragraph before subsection “B”) where it notes a particular instruction was inadequate to fully protect the appellant’s due process rights to a fair sentencing. The opinion then says: “Therefore, we examine the sufficiency of the evidence supporting each of the aggravating circumstances to determine whether misuse of the victim impact evidence could have had an effect on the sentence imposed by the jury.” If I read this paragraph correctly, the opinion is stating an error in instructions occurred, then it conducts a harmless error analysis using sufficiency of the evidence as the method of analyzing the error. Those are two different questions. It appears the opinion is omitting the evidence caused by the error, then re-weighing the evidence to determine whether it is sufficient to warrant the death penalty, instead of determining' whether the evidence was harmless. It appears this Court is mixing apples (harmless error analysis) and oranges (sufficiency of the evidence).
Additionally, the opinion states it intends to “determine whether the evidence is sufficient absent the victim impact evidence.” (Page 190). However, the opinion also states “the testimony of Norma and Wendy Fran-ceschi was within the relevant statutory, evi-dentiary and constitutional boundaries, and was properly admitted.” Page 189. These are inconsistent comments, for they make the victim impact evidence sound suspiciously like a “superaggravator,”, even though the opinion says it is not, which the opinion then omits and “reweighs” to determine if the “remaining” aggravators outweigh mitigating evidence presented.4 This cannot be the intent of the opinion, for it rejects the very premise stated earlier, based on an earlier rejection in Cargle. In addition, this Court did not find an error in instructing the jury in Cargle, but promulgated an instruction to be used in future cases. In fact, there was not an instruction on victim impact evidence in Cargle and this Court found any error in the scope of the evidence presented was harmless beyond a reasonable doubt. It was the amount and type of victim impact evidence presented in Cargle which was error, not the lack of an instruction. In this case, there was no error in the type and amount of evidence presented. The sufficiency of the evidence analysis in this opinion is mislabled and should be considered as a part of our mandatory sentence review.
In regard to Proposition V, appellant alleges the Court erred in failing to remove venireman Pyles for cause. While it would have been extremely difficult for Mrs. Pyles to have fulfilled her role as a juror, the record is void of any evidence showing her to be “not competent to serve as a juror”. Page 186. However, I agree with the Court’s decision there was no error.
In addressing the issue of ineffective assistance of counsel in Proposition IV, the Court relies on Strickland v. Washington, 466 U.S. *198668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Page 188. Based on the legal evolution of the Strickland standard, the correct standard of review is whether counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable, not merely if the result of trial would have been different. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993). Applying that correct standard, I agree with the Court that counsel was not ineffective.
For all these reasons, I concur in results.
. A statement under these conditions meets constitutional requirements. The witness who reads the statement is first put under oath, and is subject to cross-examination as to the validity of the comments contained in the statement.
I am not persuaded by any argument that a statement containing comments by more than one victim survivor, presented by only one victim survivor, constitutes a hearsay problem simply because the comment is advanced in a statement instead of a question-and-answer format. The same problem of hearsay would be contained in a question-and-answer format as it is in a statement format. A defendant who objected to hearsay statements could find the strategy backfire, as the prosecutor would argue that to circumvent the hearsay problem, he/she should be allowed to call each and every victim survivor to give his/ her own evidence as to the impact of the victim’s death on the witness. Surely that is not the purpose of allowing victim impact evidence.
. I agree with the opinion (page 189, n. 3) that the improper admission of victim impact evidence could allow reversible error to "creep into trial”. Granted, the introduction of victim impact evidence presents a risk of error, because it is presented at a very critical phase in a capital murder case. However, that is no reason in and of itself to prohibit the use of such evidence. Indeed, the introduction of any improper evidence, whether victim impact evidence or not, into a critical phase of a trial could allow reversible error not only to "creep into trial,” but practically gallop in. Following this previously proposed reasoning to its illogical' conclusion, this Court should prohibit the introduction of any evidence at a critical phase of a trial to avoid that danger. Obviously, that is untenable, as it would prohibit not only victim impact evidence, but any evidence related to an aggravating circumstance which the prosecution is seeking to prove. Rather, the solution is to treat the evidence in a fashion similar to the way in which a court treats introduction of aggravating circumstances: very carefully, with appropriate notice requirements, instructions and — in the case of victim impact evidence — an in-camera hearing before the evidence is presented. That was addressed in Cargle, 909 P.2d at 828-29.
. And that is assuming the judge could legally do so. Section 926 of Title 22 reads:
In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the juty may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.
(emphasis added). By the plain language of the statute, once the jury has assessed the death penalty for first degree murder (an offense against a law of this state), the court shall render the judgment according to the verdict (the exceptions, found at Sections 927 and 928, do not apply here).
This interpretation is re-enforced by language in other statutes as well. Section 991a of Title 22 reads:
A. Except as otherwise provided [in an act not at issue here], when a defendant is convicted of a crime and no death sentence is imposed, the court shall either:
1. Suspend the execution of sentence in whole or in part, with or without probation. ...
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D. When sentencing a person convicted of a crime, the judge shall consider any victim impact statements if submitted to the jury, or the judge in the event a jury is waived.
.... (emphasis added)
This makes it clear that suspension of a sentence is not applicable or permissible when the sentence of death is imposed; therefore, a judge would be without authority to modify a death sentence (although he could certainly state any recommendations in the trial judge’s report, see 21 O.S.1991, § 701.13(A); 22 O.S.Supp.1995, Ch. 18, App. Rules of the Court of Criminal Appeals, Form 13.12, at Section (E)(12)). Admittedly, it appears the statute which took effect on July 1, 1996, changed the language in subsection (D). That section reads: "When sentencing a person convicted of a crime, the court shall consider any victim impact statement if submitted to the court.” However, a review of the Session Laws convinces me this was a scrivener's error. The Session Laws clearly show the language quoted in the newest version of the statute is in reality language which existed in the statute before the Legislature widened the scope in which victim impact evidence could be made. See Laws 1994, c. 1, § 1 ("When sentencing a person convicted of a crime, the court judge shall consider any victim impact statement statements if submitted to the court jury, or the judge in the event a jury is waived."). The title to the bill in this chapter clearly shows the Legislature’s intent to modify this section ("...; modifying the submission of certain impact statements; ...”). This new language remained unchanged in further modifications to the statute in the 44th Session of the Legislature. See Laws 1994, c. 308, § 1; Laws 1994, c. 188, § 1. At first glance, the changes noted above would appear to have reverted back to the original language of the statute. See Laws 1994, c. 40, § 1. However, there are no additions or deletions to the language, the widely accepted method by which the Legislature in the Session Laws shows its intent to change existing law. Furthermore, a reading of the Title to this amendment clearly shows the Legislature was focused on the modifications relating to the taking of DNA samples from a person convicted of an offense. Indeed, there is no mention in the title evincing an intent by the Legislature to revert to the old language it had amended in the very same session. From this, I can gather no conclusion other than the reversion to the old language dealing solely with the court, and not the jury, is simply a scrivener's error.
The point is this: the Legislature, by its changes (or non-changes) to portions of the criminal procedure statutes relating to the presentation of victim impact evidence clearly shows (at least in capital cases, the only issue which is before us) a legislative intent to allow presentation of that evidence to the jury, and not simply the judge at a hearing where presentation of the evidence would be rendered moot.
. X do not by these comments intend to convey the impression that reweighing is not proper when an aggravating circumstance is found to be infirm. In a "weighing” state (such as Oklahoma), after a jury has found a defendant guilty of capital murder and found the existence of at least one statutory aggravating factor, it must weigh the aggravating factor or factors against the mitigating evidence to determine whether the death penalty is appropriate. In a weighing State, where the process is infected with an invalid aggravating factor which might require invalidation of the death sentence, "a state appellate court [can] reweigh the aggravating and mitigating circumstances or undertake harmless-error analysis.” Stringer v. Black, 503 U.S. 222, 230, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992) (emphasis added) (discussing Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)). My point is that it is a grave error to treat victim impact evidence like another aggravator, which the Court can omit and "reweigh" the “remaining” aggravators against the mitigating evidence. Rather, the proper course is to determine, in the mandatory sentence review, whether effect of the improper evidence (or here, improperly used evidence) was harmless.