concur in results.
¶ 1 I concur in the results of this case, however I write separately to address the following issues. The failure to hold a Jackson v. Denno hearing could be addressed through a remand for a retroactive hearing on the voluntariness of the confession. However, the Court’s method of resolving the issue is just as viable.
¶ 2 As to the issue of lesser included offenses, the Court fails to recognize this Court has unequivocally held that second degree murder is not a lesser included offense of first degree malice murder. Willingham v. State, 947 P.2d 1074, 1080-82 (Okl. Cr.1997). The present case also provides another example why this Court should adopt objective criteria for trial courts to utilize in deciding if a defendant’s requested instruction on his theory of defense should be given. See Jackson v. State, 964 P.2d 875, 899 (Okl. Cr.1998) (Lumpkin, J. Concur in results). While the Court says the instruction on the lesser included offense of first degree manslaughter was “not warranted by the evidence in this case,” it should go further and apply the criteria established in Kinsey v. State, 798 P.2d 630, 632-33 (Okl.Cr.1990).
¶ 3 Further, it should be noted the criteria set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for evaluating effectiveness of counsel has been further explained in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Applying the Lockhart standard, the record is void of any evidence the trial was rendered unfair and the verdict rendered suspect or unreliable.