concurs in results.
T1 I concur in the Court's decision to affirm the judgment and sentence in this case. However, I have some disagreement in how the Court arrives at those decisions.
T2 I disagree with the majority's reliance upon footnote 48 of Malone v. State, 2007 OK CR 34, ¶ 22 n. 48, 168 P.3d 185, 197 n. 48, in its disposition of Proposition I. "While there are exceptions, statements in footnotes are generally regarded as dicta, having no prece-dential value." Cannon v. State, 1995 OK CR 45, ¶ 2, 904 P.2d 89, 108 (Lumpkin, J., concurring in result) citing Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985). Further, I continue to maintain, as I set forth in Malone, that our prior case law regarding the legal standard used to determine when an instruction on voluntary intoxication is warranted is not inconsistent. Malone, 2007 OK CR 34, ¶ 3, 168 P.3d at 233-34 (Lumpkin, P.J., concurring in part/dissenting in part). See Taylor v. State, 2000 OK CR 6, ¶ 19, 998 P.2d 1225, 1230; Jackson v. State, 1998 OK CR 39, ¶ 65, 964 P.2d 875, 892.
3 As to Proposition II, it should be noted that the normal experiences and qualifications of laymen likely do not provide an understanding of the effects of illicit drug usage on one's ability to control behavior, to think rationally, and to form an intent to kill. See Coddington v. State, 2006 OK CR 34, ¶ 42-43, 142 P.3d 437, 449-50 (holding that medical physician could properly testify that defendant would have been unable to form the requisite deliberate intent of malice aforethought due to cocaine intoxication.). "Expert opinion testimony ... is based on 'scientific, technical, or other specialized knowledge' and can be provided only by a witness who is 'qualified as an expert," in the field at issue, 'by knowledge, skill, experience, training, or education."" Malone, 2007 OK CR 34, ¶ 81, 168 P.3d at 217; (quoting 12 O.S.Supp.2002, § 2702). I agree that there is nothing in the record to show that Dr. Choca, a psychologist with a Ph.D., was qualified to testify as to the effects of combining alcohol and the steroid diprospan.
T 4 As to Proposition V, I disagree with the majority's analysis of Appellant's claim that the admission of the Chief Medical's Examiner's testimony regarding an autopsy performed by his predecessor in office and the admission of certain diagrams from the autopsy violated Appellant's right to confrontation. I agree that the Former Chief Medical Examiner's autopsy report is not afforded any special status and is considered testimonial for Sixth Amendment confrontation purposes under Crawford v. Washington, 541 U.S. 36, 47 n. 2, 124 S.Ct. 1354, 1361 n. 2, 158 L.Ed.2d 177 (2004), and Melendes-Diaz v. Massachusetts, 557 U.S. --, 129 S.Ct. 2527, 2538, 174 LEd.2d 314 (2009). However, to properly ascertain whether Appellant's right to Confrontation was violated we must determine whether the State's expert is simply a conduit for an absent witness's conclusions or *248whether the State's expert is offering his own conclusions, based in part on the data, analysis and conclusions of other professionals reasonably relied upon by experts in the field. See Vann v. State, 229 P.3d 197, 206 (Alaska App., 2010) ("when the government's expert is simply a conduit for an absent witness's analysis, courts find a violation of the confrontation clause; but when the government's expert offers their own analysis, based in part on test data obtained from other people, courts find that the confrontation clause is satisfied."); see also United States v. Johnson, 587 F.3d 625, 636 (4th Cir.2009) ("An expert witness's reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation.").
11 5 This Court previously adopted a similar rule in Marshall v. State, 2010 OK CR 8, ¶ 30, 232 P.3d 467, 475, to wit:
While Rules of Evidence cannot trump the Sixth Amendment, Crawford, 541 U.S. at 61, 124 S.Ct. at 1870, Melendezs-Diaz does not do away with 12 0.8.2001, § 2708. ( [Als a matter of expert opinion testimony, a physician's reliance on reports prepared by other medical professionals is plainly justified in light of the custom and practice of the medical profession. Doctors routinely rely on observations reported by other doctors ... and it is unrealistic to expect a physician, as a condition precedent to offering opinion testimony to have performed every test, procedure, and examination himself). Avila, 912 N.E.2d at 1028-1029. However, § 2708 must be read in conjunction with the Confrontation Clause. This requires the expert witness testimony must be confined to his or her own opinions and the expert must be available for eross-examination.
The majority fails to explain why this analysis is not used in the present case. Appellate courts should be clear and consistent in establishing guidelines for the judges of the District Court. Hampton v. State, 2009 OK CR 4, ¶ 1, 208 P.3d 179, 189 (Lumpkin, J., concurring in part/dissenting in part).
T6 In Marshall, we were presented with the situation where an expert witness was simply a conduit to gain admission of a non-testifying expert's report and the conclusions therein. Id., 2010 OK CR 8, ¶ 29, 232 P.3d at 475. The expert testified solely to the findings of the non-testifying expert's report, he was repeatedly asked about the non-testifying expert's findings, answered those questions by reading from the non-testifying expert's report, and did not offer his own opinions concerning the findings. Id. We determined that allowing the expert to testify to the findings contained in the non-testifying expert's report violated the Confrontation Clause. Id., 2010 OK CR 8, 1 31, 282 P.3d at 475-76.
T 7 The cireumstances in Marshall must be distinguished from the instance where an expert testifies to his or her own opinions. When an expert testifies to his or her own opinions, then evidence may also be offered as the basis of the expert's opinion. Crawford and its progeny are not applicable to evidence offered as the basis of an expert's opinion because such evidence is not offered for the truth of the matter asserted. "Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Andrew v. State, 2007 OK. CR 23, ¶ 31, 164 P.3d 176, 189; citing Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 2081-82, 85 L.Ed.2d 425 (1985). Evidence offered as the basis of an expert's opinion is not being offered for the truth of the matter asserted. Lewis v. State, 1998 OK CR 24, ¶ 22, 970 P.2d 1158, 1167-68. "[A] limiting instruction clarifying that the evidence can only be used to evaluate the credibility of the testifying expert's opinion is required." Id., citing Ake v. State, 1989 OK CR 30, 778 P.2d 460, 467; see also OUJI-CR(2d) 9-42A (Supp.2000).
[ 8 An expert witness may properly testify to his or her own conclusions based on the testing of other professionals if reasonably relied upon by experts in the field. Mar-
*249shall, 2010 OK CR 8, ¶ 30, 232 P.3d at 475-76; 12 O.S.Supp.2002, § 2708.
The Oklahoma Evidence Code places few restrictions on the information an expert may rely upon to form his or her opinions. In referring to such information, 12 0.8.1991, § 2708 specifically provides that "Jf of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Accordingly, under section 2703 an expert may rely upon information considered to be hearsay if this information is of a type reasonably relied upon by experts in forming their opinions. The Code also provides, "[the expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may be required to disclose the underlying facts or data on cross-examination." 12 0.8$.1991, § 2705. Appellant argues that section 2705 provides no statutory authority for revealing to the jury the Call's opinion. reasons underlying Dr. While section 2705 only mandates that this information be divulged to the jury if required by the judge or on cross-examination, it does not preclude the admission of such absent the trial court's request or on direct examination.
Lewis, 1998 OK CR 24, ¶ 19, 970 P.2d at 1166-67. In Lewis, we found that it was permissible for a psychologist to rely, in part, upon hospital records and information given to him by a physician, while forming his opinion of the defendant's mental state. Id., 1998 OK CR 24, ¶ 20, 970 P.2d at 1167. Likewise, we have found that a discharge summary from Eastern State Hospital and an unsigned psychological evaluation which the expert reasonably relied upon in arriving at her opinion were properly admitted into evidence. Humphreys v. State, 1997 OK CR 59, ¶¶ 26-28, 947 P.2d 565, 575. It is permissible for an expert to rely on professional studies of which the expert is aware. Revilla v. State, 1994 OK CR 24, ¶ 21, 877 P.2d 1143, 1150-51. A medical expert may reasonably rely upon the diagnoses of other medical professionals in forming his opinion. Ake, 1989 OK CR 30, ¶¶ 30-31, 778 P.2d at 467. Again, the purpose of evidence of the basis of the opinion is solely to permit the jury to determine the credibility of the expert's opinion. Id., 1989 OK CR 30, ¶ 31, 778 P.2d at 467.
T 9 Thus, the testifying expert need not go back and perform the non-testifying expert's examination, testing and analysis if other professionals in the field would reasonably rely upon the non-testifying expert's examination, testing and analysis. Instead, the testifying expert may arrive at his own analysis and conclusions reasonably based upon the work of the non-testifying expert.
{10 Such a conclusion is consistent with the United States Supreme Court's conclusion in Melendezs-Diaz that "we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Melendes-Dias, 129 S.Ct. at 2582 n. 1.
{ 11 The present case illustrates the necessity of application of the conduit test. Dr. Gofton reasonably relied upon the photographs taken of Fisher, Dr. Jordan's findings, diagrams and report in forming his own opinions. Dr. Gofton testified as to his own opinion regarding the timing, severity and survivability of the different wounds; the manner, cause, and mechanism of death; the amount of blood where Fisher was discovered; and the probability that Fisher remained conscious after the second gunshot wound. Within this testimony Dr. Gofton often referenced Dr. Jordan's findings and his diagrams as a basis for his opinions. These opinions and the evidence introduced as the basis for them were properly admitted and did not violate the Confrontation Clause. Dr. Gofton was subject to cross examination and the basis for his opinions was not introduced for the truth of the matter asserted but solely to permit the jury to determine the credibility of the expert'sopinion. Ake, 1989 OK CR 30, ¶ 31, 778 P.2d at 467.
112 However, a fair amount of Dr. Gof-ton's testimony consisted of his parroting the *250report of Dr. Jordan. Dr. Gofton did not give his own opinion but merely testified as to Dr. Jordan's findings or conclusions. This evidence was not presented as the basis for any of Dr. Gofton's opinions. It was admitted to prove the truth of the matter asserted and did not weigh on the eredibility of Dr. Gofton's opinions. This type of conduit testimony is improper and violated Appellant's right to Confrontation.
113 I agree with the majority that the Confrontation Clause violation is harmless beyond a reasonable. doubt. Marshall, 2010 OK CR 8, ¶ 31, 232 P.3d at 476. Those portions of Dr. Gofton's testimony where he was simply a conduit for Dr. Jordan's report and conclusions were not that important to the prosecution's case, the testimony was cumulative of other evidence in the case, the conduit testimony was corroborated by other evidence at trial, and the great weight of the evidence supported the jury's determination of both guilt and that Fisher consciously suffered before her death. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).
1 14 As to Proposition VIII, this Court has previously approved the struck juror method for seating a jury in a criminal case. Jones v. State, 2006 OK CR 5, ¶¶ 7-8, 128 P.3d 521, 533.
115 As to Proposition XI, I further note that this Court conducts a mandatory sentence review in every case where a sentence of death was imposed that encompasses the very cireumstances that Appellant alleges. 21 0.8.2001, $ 701.18. As discussed in the mandatory sentence review, Appellant's sentence was not imposed under the influence of any arbitrary factor, passion or prejudice.
16 As to Proposition XV, I disagree with the majority's assumption that Dr. Gofton's testimony as to the length of time Fisher may have remained conscious was improperly admitted. Appellant complains that Dr. Gofton's opinion as to the length of time Fisher may have remained conscious was different than that described by Dr. Jordan in his report. Within this claim Appellant concedes that Dr. Gofton rendered his own opinion and was not simply a conduit for Dr. Jordan's report. As such, the testimony was proper and did not violate the Confrontation Clause. Marshall, 2010 OK CR 8, 11 29-30, 232 P.8d at 475-76.
T17 As to Proposition XVI, the opinion goes through a plain error analysis without ever naming it or citing such authority. Appellant's failure to make an offer of proof of the testimony that he wanted to present beyond that authorized by the pre-trial ruling waives all but plain error. Simpson v. State, 1994 OK CR 40, ¶¶ 10-11, 876 P.2d 690, 694-95; 12 O.S.2001, § 2104(A)@) ("If the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked."). I agree that plain error did not occur.
18 As to Proposition XIX, subsection H, this Court has previously rejected claims that Oklahoma's lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. Malicoat v. State, 2006 OK CR 25, ¶¶ 2-11, 137 P.3d 1234, 1235-39.