SPECIALLY CONCURRING.
1 1 I concur in the results reached in this case but write separately to address several issues.
12 As to Proposition I, the Court cannot use the affidavits submitted by Appellant and the State as substantive evidence regarding the issue raised. Warner v. State, 2006 OK CR 40, ¶ 14, 144 P.3d 838, 858. These ex parte affidavits, which have not been subjected to cross-examination, only go to the determination whether an evidentiary hearing is required. Id., 2006 OK CR 40, ¶ 14 n. 8, 144 P.3d at 858 n. 3.
T3 Further, we could have decided this issue based upon Oklahoma law and United States Supreme Court precedent without a tour of every jurisdiction in the United States. The Constitutional right at issue is the right to jury trial under the Sixth Amendment applied to the states through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 148-58, 88 S.Ct. 1444, 1447-52, 20 L.Ed.2d 491 (1968). The United States Supreme Court has recognized that trial by jury necessarily includes the presence, "directance" and "superintendence" of a presiding judge. Capital Traction Co. v. Hof, 174 U.S. 1, 13-16, 19 S.Ct. 580, 585-86, 43 L.Ed. 873 (1898). The United States Supreme Court has not determined whether the mere momentary absence of a trial judge constitutes reversible error.
T4 However, the issue of a trial judge's absence is not a matter of first impression for this Court. We have long recognized that a judge's absence from the bench does not automatically require reversal. Instead, "[oln principle and reason the determining test is whether the judge has lost control of the proceedings. If he has done so, the *719integrity of the trial is destroyed." Tunnell v. State, 24 Okl.Cr. 176, 216 P. 951, 952 (1923); Elrod v. State, 1974 OK CR 183, ¶¶ 5-6, 527 P.2d 208, 210 (finding no requirement that trial judge remain seated at all times at the bench); Grant v. State, 1963 OK CR 86, 11 7-15, 385 P.2d 925, 927-28 (finding that trial judge's momentary absence from the bench did not result in loss of control of proceedings requiring reversal); Ridenour v. State, 1951 OK CR 62, 94 Okl.Cr. 92, 281 P.2d 395, 405-06 ("By reason of our conclusion that the court lost that supervision and control of the court required in a criminal trial, the case is reversed and remanded for a new trial."); Blagg v. State, 36 Okl.Cr. 337, 254 P. 506, 509 (1927) (refusing to sustain the contention that trial judge was absent from the courtroom and lost control of proceedings as judge remained in a position to rule on any matter that might have arisen at the time he stepped into his chambers); Allen v. State, 13 Okl.Cr. 533, 165 P. 745, 746 (1917) (when the record affirmatively discloses that the judge lost control of the proceedings by reason of his absence from the bench during the progress of the trial then reversal is required); Stites v. State, 9 Okl.Cr. 596, 132 P. 822, 823 (1913); Wright v. State, 7 Okl.Cr. 280, 123 P. 434, 435 (1912); Cochran v. State, 4 Okl.Cr. 379, 111 P. 974, 977-178 (1910).
15 Thus, when the trial judge is absent and has lost control of the proceedings, the error constitutes reversible error. This result is supported by the various rulings of the federal courts on this issue. In United States v. Mortimer, 161 F.3d 240, 241-42 (3rd Cir.1998), the Third Cireuit Court of Appeals found that the trial judge's absence constituted structural error when the prosecutor objected to defense counsel's closing argument but withdrew the objection "with the exclamation 'The judge is not here.'" In Riley v. Deeds, 56 F.3d 1117, 1119-22 (9th Cir.1995), the Ninth Circuit Court of Appeals, in refusing to determine whether every instance of a trial judge's absence constituted structural error, determined that "the complete absence of judicial discretion" that occurred when the judge's law clerk presided over the jury's request to have testimony read back during deliberations constituted reversible error.
T6 When the trial judge's absence does not result in a loss of control over the proceedings then the error does not constitute structural error and may be found harmless. In United States v. Kone, 307 F.3d 430, 441-48 (6th Cir.2002), the Sixth Cireuit Court of Appeals determined that structural error had not occurred when the trial judge was absent during jury deliberations and the return of the verdict. "This is not the case of a judge who completely abdicated his judicial responsibilities, as in Mortimer, but rather the case of a judge who presided telephonically at important stages of the trial." Id., 807 F.3d at 448. The Second Cireuit Court of Appeals in United States v. Pfingst, 477 F.2d 177, 195-97 (2nd Cir.1973), determined that reversible error did not occur although the trial judge was absent during jury deliberations for approximately two hours while giving a speech and was unable to immediately address a jury question as the trial judge "was able to 'assert authority' over the situation by telephone." See also United States v. Grant, 52 F.3d 448, 449 (2nd Cir.1995) (recognizing "practical distinction" "between the judge's necessary presence while functional proceedings are in progress, and a presence serving only to satisfy symbolic ritual"). In United States v. Love, 184 F.3d 595, 604-05 (dth Cir.1998), the Fourth Cireuit Court of Appeals determined that a judge's absence during portions of the parties' closing arguments explained in advance by the need to work on other matters and with the provision that he was available at all times to rule on any objections constituted harmless error. In Heflin v. United States, 125 F.2d 700, 700-01 (5th Cir.1942), the Fifth Circuit found a defendant's substantial rights were not affected by the trial judge's unexpected absence during closing argument. The trial judge was absent for two or three minutes in an adjacent lavatory with the door closed. Id. No motion or objection occurred and counsel continued with closing argument. Id.
T7 Most recently, the Tenth Cireuit Court of Appeals in United States v. Solon, 596 F.3d 1206, 1210-12 (10th Cir.2010), cert. denied, -- U.S, --, 131 S.Ct. 213, 178 L.Ed.2d 128 (2010), determined that a trial judge's absence from the bench for just un*720der six minutes in the middle of defense counsel's closing argument did not constitute structural error. "[UJulike in Mortimer and Riley, the judge in this case was available if needed and there were no objections to rule on or decisions for him to make while he was away from the bench." Id., 596 F.3d at 1212. As such the error constituted trial error subject to harmless error review. Id.
18 Turning to the cireumstances of the present case, regardless of the trial judge's presence at the bench the record reveals that the trial judge maintained authority and control over the proceedings. There were no objections to rule on or decision for the trial judge to make during the time that Appellant alleges that the trial judge was absent. If the trial judge left the courtroom, his absence occurred during the publication of the pre-admitted videotaped testimony of Appellant's mother and the trial judge was in an adjacent washroom and remained available to address any objection. Appellant's claim does not involve structural error. As he has not shown any prejudice from the alleged absence of the trial judge, reversal is not required. McCormick v. State, 1993 OK CR 6, ¶ 42, 845 P.2d 896, 903; 20 O.S.2001, § 3001.1.
T 9 Our review of the challenge in Proposition II, is only for plain error as Appellant waived appellate review of the issue by failing to raise a timely challenge before the trial court. Simpson v. State, 1994 OK CR 40, ¶ 23, 876 P.2d 690, 698.
10 As to Proposition III, 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.
111 Our review of the challenge in Proposition IV, is only for plain error as Appellant waived appellate review of the issue by failing to raise a timely objection before the trial court. Simpson, 1994 OK CR 40, 123, 876 P.2d at 698. Further, this Court recently addressed this very issue in Harmon v. State, 2011 OK CR 6, ¶ 23, 248 P.3d 918, 931. "We have rejected this claim in the past and we find neither the bifurcated nature of this capital case nor the current practice of jury selection used in capital cases warrants a different conclusion." Id. Plain error did not occur.
12 As to Proposition V, a separate notice for resentencing is not needed as 21 O.S8. 2001, § (4), itself, puts a defendant on notice of the evidence, unless the State seeks to call witnesses not included on the previous list of witnesses for trial, then a separate notice is required.
13 The opinion properly denies relief in Proposition IX. This Court has previously found that error in the admission of nonviolent prior felony convictions is harmless in light of evidence establishing valid convie-tions for violent felonies. Pickens v. State, 1993 OK CR 15, ¶ 40, 850 P.2d 328, 338.
T 14 As to Proposition X, I see no need to pontificate on the outcome of this case were the Court to place an intent requirement upon proof of the especially heinous, atro-clous, or cruel aggravating cireumstance, since this is not the law. Appellant's single sentence allegation, within this proposition, that the evidence does not sustain the aggravating circumstance in this case is not supported by argument or authority. As such, we should not consider it. Rule 8.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010); Armstrong v. State, 1991 OK CR 34, ¶ 24, 811 P.2d 593, 599.
1 15 As to Proposition XV, when a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Phillips v. State, 1999 OK CR 38, ¶ 103, 989 P.2d 1017, 1043 (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984)). Further, the opinion properly denies Appellant's Rule 3.11 motion as the motion does not meet the standard the Court set forth in Stimpson v. State, 2010 OK CR 6, ¶ 53, 230 P.3d 888, 905-06.
16 Finally, as to Proposition XVI, I note that this Court has previously rejected claims that Oklahoma's lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment or is flawed. Harmon, 2011 OK CR 6, 191 91-92, *721248 P.3d at 946; Malicoat v. State, 2006 OK CR 25, ¶¶ 2-11, 137 P.3d 1234, 1235-39.