concurring in results.
I concur in the results reached by the Court. However, I cannot join with the Court in the propositions of law which it attributes to K.S.B. v. State, 829 P.2d 685 (Okl.Cr.1992), and Gibson v. State, 501 P.2d 891, 900-01 (Okl.Cr.1972). I further would limit the discussion of Appellant’s complaints of the provisions of Oklahoma Uniform Jury Instructions-Criminal, 440 and 441, to the fact the Oklahoma procedure for weighing aggravating circumstances against the mitigating evidence is constitutional under both the United States and Oklahoma Constitutions and the allegation is without merit.
JOHNSON, Vice Presiding Judge,specially concurring.
I specially concur in the opinion written by the majority herein but need to point out some differences that I see as it relates to the U.S. Supreme Court case of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d, 359 (1981).
The majority in the opinion indicates that Estelle stands for the proposition that where a therapist, appointed by the court to determine competency, goes beyond such testimony and testifies to the ultimate issue of threat to society, then Fifth and Sixth Amendment rights of the defendant would be violated. I agree with this general statement. I think Estelle goes further and requires the defendant to affirmative waive prior to the competency examination, his/her Fifth or Sixth Amendment rights. In this particular case, the appellant did not make such an affirmative waiver.
Appellant did not, through counsel, object to Mr. Lee’s testimony and, therefore, waived all but fundamental error. Jones v. State, 781 P.2d 326 (Okl.Cr.1989). This, due to the violation of the Fifth and Sixth Amendment constitutional right, would be fundamental error and before the court could make a finding of harmless error, this must be done by the court’s finding of harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
I would find that based upon the clear evidence and further based upon the fact that defense counsel contributed to this error by extensive cross examination and used a part of the cross-examination for mitigation and therefore assisted in a waiver. I find the evidence compelling and that Chapman is satisfied and that this was harmless beyond a reasonable doubt.
The Supreme Court noted that the doctor in Estelle v. Smith, supra, turned from his initial requirement, that is, to make a finding of competency for trial to be “an agent of the state recounting unwarranted statements made in a post-arrest custodial setting.” Id. 451 U.S. at p. 467, 101 S.Ct. at p. 1875.