CONCURRING IN RESULT.
[1 I concur in the result reached in this opinion. However, I write separately to address the following concerns.
2 This Court's summary opinion in Johnson v. State, unpub. dispo., F-2008-1171 (Okl.Cr. January 6, 2010), was not published. As such it is not the rule of law. Rule 3.5(C)(8), Rules of the Oklahoma Court of Criminal Appeals, Tit. 22, Ch. 18, App. (2010) ("In all instances, an unpublished decision is not binding on this Court."). While it is the better practice to give a "separate consideration" instruction in trials of multiple offenses, this Court has never required the district court to give such an instruction. See Smith v. State, 2007 OK CR 16, ¶ 38, 157 P.3d 1155, 1168-69 (considering effect of instruction to the jury to give separate consideration to each offense in determination of whether the appellant was prejudiced by the joinder of offenses); Shietze v. State, 1986 OK CR 131, ¶ 8, 724 P.2d 262, 264 (absence of instruction that jury could not consider evidence of any crimes charged to infer that appellant was guilty of another crime charged found not to constitute fundamental error).
¶ 3 I further note that the Opinion's reference to footnote 6 of Johnson illustrates the problem that evolves when footnotes are used to attempt to set out the law. "In law review pieces, all citations appear in footnotes appended to the portions of the text to which they refer." The Bluebook A Uniform System of Citation 45 (Columbia Law Review Ass'n, et al. eds., 18th ed. 2005). However, in "practitioner's documents" citations are "inserted into the text in one of two ways: as a stand-alone citation sentence or as a citation clause." Id., at 3, 45. In court opinions, the law is generally set forth in the text. Cannon v. State, 1995 OK CR 45, ¶ 2, 904 P.2d 89, 108 (Lumpkin, J., concurring in result) ("While there are exceptions, statements in footnotes are generally regarded as dicta, having no precedential value.") citing Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985) (In determining statements in footnote to be dicta, Court notes it had on other occasions rejected language from a footnote as "not controlling."); McDaniel v. Sanchez, 452 U.S. 130, 141-42, 101 S.Ct. 2224, 2232, 68 L.Ed.2d 724 (1981); Henderson v. Morgan, 426 U.S. 637, 651, 96 S.Ct. 2253, 2260, 49 L.Ed.2d 108 (1976) (White, J., with whom Stewart, Blackmun, and Powell, JJ., join, concurring). The use of footnotes to state the law or attempt to set out the law in this Court's opinions leads to confusion as to what is controlling precedent. Opinions are not law review articles and must be written to give clear and consistent interpretations of the law. This policy ensures the public is given notice of what the law is and trial practitioners of the bench and bar are able to confidently apply it.
¶ 4 In its discussion of Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224, (2006), in Proposition Three, the Opinion states that "[the relevant focus is clearly on what is happening to the hearsay declarant when the statements are made, rather than broader concerns of the police or the public at large." This statement is made out of whole cloth, without any supporting authority and in conflict with Davis Id. Instead of attempting to come up with new language to describe admissible hearsay we should utilize the United States Supreme Court's description, to wit:
the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator's effort to establish the identity of the assail*381ant, so that the dispatched officers might know whether they would be encountering a violent felon.
Id., 547 U.S. at 827, 126 S.Ct. at 2276.
¶ 5 However, it would appear the first question that should be asked in this type of evidentiary issue is whether the Statement even qualifies as "hearsay," ie was the statement offered for the truth of the matter asserted? If the statement was offered only to show the basis of further action by the police, then it was not hearsay. See Stouffer v. State, 2006 OK CR 46, ¶ 76, 147 P.3d 245, 265 (as the information was introduced merely to show why the officer searched for gloves and not for the truth of the matter asserted it constituted nonhearsay); Powell v. State, 2000 OK CR 5, ¶ 97, 995 P.2d 510, 532 (2000)(officer's testimony about his communication with the homicide division concerning the case was not hearsay as his statements were not offered for the truth of the matter asserted but to show why officer began to search defendant). The next question would be does this relating of non-hearsay information by the police officer violate the Confrontation Clause of the 6th Amendment? I fail to find where the United States Supreme Court has gone so far as to obviate this long standing rule of evidence. Andrew v. State, 2007 OK CR 23, ¶ 31, 164 P.3d 176, 189 ("Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."); Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 1369 n. 9, 158 L.Ed.2d 177 (2004) ("The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."); Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 2081-82, 85 L.Ed.2d 425 (1985) (The nonhearsay aspect of the co-defendant's confession-not to prove what happened at the murder seene but to prove what happened when the defendant confessed-raises no Confrontation Clause concerns.).