specially concurring:
I agree that this case must be affirmed even though the “especially heinous, atrocious, or cruel” aggravating circumstance must fail because of insufficient evidence. However, I feel that it is imperative to discuss the facts of this case and why the evidence does not support this aggravating circumstance. The jury was improperly instructed on the aggravating circumstance and that facts do not support it. There was no evidence that the murders involved “torture or serious physical abuse”.as required by Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987), cert. denied 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). The Circle K attendant was fatally shot in the head. Although the medical examiner testified that he probably did not die until about ten minutes later, there was no evidence that he was conscious after the fatal shot or that the suffered from serious physical abuse or torture. See Odum v. State, 651 P.2d 703 (Okl.Cr.1982). The appellant’s parents were shot in the back of their heads while they were asleep in bed and both died instantly. The State conceded in its brief that Mr. Bellofatto’s death did not involve serious physical abuse or torture. Also, in the trial judge’s report, he stated that the victims in each case were not physically harmed or tortured prior to death.