concurs in result.
I join with Judge Park’s analysis and determination that Officer Whittington’s testimony did not constitute an evidentiary harpoon. The evidence was properly admitted and was not error.
I agree with the Court’s application of 22 O.S.Supp.1990, §§ 929 and 1066 in this case. It is just this type of fact situation which makes the appellate review process of reweighing evidence to correct procedural errors extremely difficult. The new statutory process which allows us to remand the case for resentencing provides the trier of fact the opportunity to evaluate the evidence pursuant to a proper instruction of the law and render an appropriate sentence. However, I do not agree with the Court’s statement that “[t]he strong statutory policy of the State of Oklahoma is that a criminal defendant be sentenced by a jury”. A correct reading of 22 O.S. 1981, § 926, in conjunction with 22 O.S. 1981, §§ 927, 928, 982 and 991a et seq, reveals that the statutory policy is that, if he requests it, a defendant has a right to have a jury recommend a sentence in the first instance. This concept was recently addressed in Livingston v. State, 795 P.2d 1055, 1066 (Okl.Cr.1990), as we discussed and defined our powers of appellate review. Oklahoma statutes are clear, individuals convicted of a crime are sentenced by the trial judge based not only on the recommendation of the jury, but also on evidence provided through the presentence investigation and sentencing hearing, which was not available to the jury. If the jury, in fact, set the actual sentence, the sentencing powers enumerated in 22 O.S.1981, § 991a et seq. would be without force or effect. The only exception to this rule is when the court has no alternative in the sentencing of a defendant. See Hall v. State, 548 P.2d 649 (Okl.Cr.1976), Smith v. State, 594 P.2d 784 (Okl.Cr.1979).