concur in result.
T 1 I agree that Appellant's convictions and sentences should be affirmed. I write separately because I disagree with the analysis on several points.
T2 In Proposition I, Appellant claims the evidence was insufficient to convict him of first degree murder. The opinion correctly notes that cireumstantial evidence was a strong component of the State's case. However, direct evidence was also presented as to the charge of murder. The most that can be said regarding the evidence is that it was composed of both direct and cireumstantial evidence. Due to that fact, the proper standard is that this Court will view the evidence in the light most favorable to the State and determine if any rational trier of fact would have found essential elements of crime beyond a reasonable doubt. See Drew v. State, 771 P.2d 224, 227 (Ok1.Cr.1989); Spuehler v. State, 709 P.2d 202, 203-204 (Ok1.Cr.1985). This parsing of the evidence is one of the reasons I have previously stated my belief this Court should adopt a unified Spuchier-type approach to evaluate sufficiency of the evidence in all cases, whether they contain both direct and cireumstantial evidence, or whether they contain entirely circumstantial evidence. See White v. State, 900 P.2d 982, 993 (Ok1.Cr.1995) (Lumpkin, J., specially concurring). I continue to urge my colleagues to review the flawed premise upon which this Court has continued to apply a reasonable hypothesis test in the review of evidence. The application of the reasonable hypothesis in this case presents a prime example why a unified approach would be clearer and more concise.
T3 I also disagree with the Court's analysis in Proposition VII where Appellant argues his jury was coerced into returning a death sentence. A review of the transcript in this case makes it clear the judge and *320attorneys clearly knew the distinction between an Allen Instruction, as set out in OUJI-CR (2d) 10-11, and the Death Penalty Proceedings-Deadlocked Jury Instruction contained in OUJI-CR (2d) 4-83. Initially, we should remember the giving of further instruction in a criminal case is a matter left to the discretion of the trial judge. Historically, our cases have provided for the additional deadlocked jury instruction if a jury is unable to reach a verdict within a reasonable time. Determination of what is reasonable is best left to the judge who has tried the case. In this particular case, the judge and attorneys were particularly aware of the amount of time the trial had taken and the amount of time taken in deliberation in the first stage and second stage of trial. When the issue was first raised regarding an Allen charge, the jury had only been in deliberations for about four (4) hours. (Tr. 2068) At the time the Allen charge, OUJI-CR (2d) 10-11, was given, the Court advised the jury, "this case has taken approximately 57 hours of trial time. You have deliberated for approximately six and one half hours." (Tr. 2072) As the Court reflected later, the jury had deliberated 12 or 18 hours in the guilt stage. (Tv. 2080)
1 4 When the issue of the Allen Instruction was first raised, it was in response to the trial court's inquiry of counsel as to their desired response to the request of the jury to replace a juror with an alternate. (Tr. 2067) To that question, the Assistant District Attorney responded, "what does the deadlock instruction say?", to which defense counsel added, "it's one that you give every time." It was the trial court that raised the question of OUJI-CR (2d) 4-88. As the court was speaking about that Instruction, defense counsel interrupted the court and stated, "I have had that given-I'm sorry. Excuse me. It appears it has to be after an extended period of time." (Tr. 2067-2068) Following the State's objection to that charge, defense counsel responded, "I think the Allen charge should be given now frankly telling them to | go back and do that as opposed to anything else that we could instruct." (Tr. 2068) The final resolution of that discussion was that the Allen charge would not be given because it was too soon in their deliberations for an Allen charge. The agreed response was going to be that the law did not authorize the court to grant the request and that the jury should continue their deliberations.
15 During the above discussion, an additional note was received from the jury which advised the court the jury was not able to reach a unanimous sentence. At that june-ture, the decision was made to give the Allen charge as set out in OUJI-CR (2d) 10-11. To that decision, defense counsel made the following objection:
"We object to that, Your Honor.-and we think that the Allen charge and instruction given is not an appropriate instruction to be given to a jury in the stage two deliberation since there is such an overlap of both moral and legal issues and therefore we object.
We also request that the Court ask the jury-since they say that they're deadlocked, ask if any further deliberations would be beneficial to this jury before even considering the Allen charge.
And then as I said on the record, we object to the Allen charge in the second stage of this trial as not sufficient in verbiage to fully explain the sentencing phase of a death penalty case."
Thereafter the court did administer the Allen charge as Jury Instruction No. 15.
1 6 The instruction given is a correct statement of law and is a correct instruction to allow the jurors to further deliberate with the admonition that jurors should not surrender their honest convictions in arriving at a decision. This instruction was correct and appropriate under the facts of this case.
17 The Court's opinion in this case seems to infer "recent" changes to 21 0.S8.1991, § 701.11, which necessitate this Court's ruling regarding the requirement to give OUJI-CR (2d) 4-88. The history of this statute and our jury instructions does not support this analysis. The provisions of our current Section TOL.11 have been in effect since 1987. This is not a new statute. While OUJI-CR (2d) 4-88 is a relatively recent addition to the Uniform Jury Instructions, it is not a new instruction as to its concept. The original Oklahoma Uniform Jury Instructions-Crimi*321nal were adopted in 1981. OUJI-CR (Ist) 442 was the uniform instruction for Death Penalty Proceedings Closing Charge. As of the date of that original publication, OUJI-CR (1st) 442 had as a final paragraph with its preparatory instruction the following:
[IF JURY HAS NOT RETURNED A VERDICT WITHIN A REASONABLE TIME RETURN JURY TO COURT AND GIVE THE FOLLOWING INSTRUCTION:]
HAVE YOU REACHED A UNANL MOUS VERDICT? [NOTE: IF ANSWER IS 'NO®' GIVE THE FOLLOWING: IF ON FURTHER DELIBERATION YOU ARE UNABLE TO AGREE UNANIMOUSLY AS TO PUNISHMENT, I SHALL DISCHARGE YOU AND IMPOSE A SENTENCE OF IMPRISONMENT FOR LIFE.
T8 The fact that this type of instruction has been a part of the Uniform Jury Instructions since their inception indicates that more weight should be given to our prior case law relating to this type of jury instruction. More to the point, it is readily apparent the OUJI-CR Committee merely removed the last paragraph from OUJI-CR 442 and cere-ated a separate instruction for that paragraph in OUJI-CR (2d) 4-83.
I 9 In Johnson v. State, 731 P.2d 993, 1005 (Ok1.Cr.), cert. denied, 484 U.S. 878, 108 S.Ct. 35, 98 LEd.2d 167 (1987), the Court addressed the provisions of 21 0.8.1981, § 701.11, which stated that "if the jury cannot within a reasonable time agree to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment for life". The Court further stated:
. such a statutory injunction is "an instruction for the trial court, not for the jury." Coulter v. State, 488 So.2d 386, 346 (Ala.Cr.App.1982). It would amount to an invitation to the jury to avoid the difficult duty of passing sentence upon the life of the accused. (internal cites omitted)
110 In Fox v. State 779 P.2d 562, 574 (Ok1.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777, (1990) the Court was requested to reconsider its prior holding that the jury does not need to be instructed In response to concerning Section T7OL.11. that request, the Court stated, "[wle remain convinced that the jury should not be concerned with the trial court's supervisory role. Such an instruction could improperly distract the jury from performing its duty of assessing the sentence ." Id. See also, Boltz v. State, 806 P.2d 1117, 1124-25 (Ok1.Or.), cert. denied, 502 U.S. 846, 112 S.Ct. 148, 116 L.Ed.2d 109 (1991).
{11 In Ellis v. State, 867 P.2d 1289, 1800 (Ok1.Cr.1992), cert. denied, 518 U.S. 863, 115 S.Ct. 178, 130 L.Ed.2d 113 (1994) the Court addressed the issue of the application of OUJI-CR (Ist) 442. The Hillis opinion re-fleets that on five occasions during the jury's deliberations, defense counsel requested the trial court give the final portion of OUJI-CR (Ist) 442. Ellis 867 P.2d at 1300-1301. Each request was refused and the jury was permitted to deliberate for over seventeen hours before reaching a verdict. This Court found the length of the jury's deliberations were not unreasonable under the cireum-stances of the case and that the trial judge did not abuse his discretion by refusing to give the requested instruction or to take the case from the jury. Id.
1 12 More recently, in Malone v. State 876 P.2d 707, 713 (Ok1.Cr.1994), we reiterated the principle that this Court's jurisprudence has consistently held an instruction pursuant to 21 0.8.1981, § 701.11 was improper because .it invites the jury to avoid its difficult duty to pass sentence on the life of an accused.
1 13 While this Court has consistently held that an instruction based on Section 701.11 would improperly distract the jury from performing its duty of assessing the sentence, it has also stated that if a trial judge gives that instruction, it is not an abuse of discretion. See Darks v. State, 954 P.2d 152, 166 (Okl.Cr.1998); Hayes v. State, 738 P.2d 533, 541 (Okl.Cr.1987).
T 14 Based on the historical perspective of our jury instructions and case law, 1 believe the opinion is in error when it infers the Uniform Jury Instruction Committee has overlooked or missed any changes in the law. The Notes on Use to OUJI-CR (2d) 4-83 in fact state what this Court has said in its cases. The Uniform Jury Instruction Com*322mittee has been extremely diligent and professional in ensuring it provides to us through the jury instructions, committee comments, and notes on use only the law as it has been adjudicated and determined by this Court. It does not seek to say what the law should be; it merely reflects what we have held the law is. That the type of instruction at issue here has been with us since the inception of the Uniform Jury Instrue-tions-Criminal indicates that our case law has been based upon an informed and intentional interpretation of the statute. I agree with that case law.
¶15 The jury should be given every reasonable opportunity to arrive at a decision through its deliberative process. If there are difficulties in arriving at a unanimous decision after a reasonable time, it is appropriate to give an Allen charge as set out in OUJI-CR (2d) 10-11. That charge reminds the jury of the importance of their duties, it reemphasizes the importance of each individual decision and encourages those jurors who may have honest beliefs as to the weight and effect of the evidence that has been presented to them not to abandon those beliefs. At the same time, it requires them to realize the importance of the role they play in our judicial system. I do not believe OUJI-CR (2d) 4-83 should ever be given in isolation, but only at the trial judge's discretion after the initial Allen charge and after the jury has had an opportunity to further deliberate pursuant to that Allen charge. As counsel recognized in the record in this case, OUJI-CR (2d) 4-88 should only be given after an extended period of deliberations when the impasse of the jury is such it is unlikely they will be able to resolve their differences to arrive at a unanimous verdict.
116 I also disagree with a reference to a newspaper article identified in footnote 34. This matter is not a part of the record before this Court and should not be considered by the Court for any purpose.
117 I have also reviewed the transcripts relating to the claim of prosecutorial misconduct as to closing arguments. I agree that failure of a prosecutor to adhere to rulings of this Court in the scope and type of closing argument as has been discussed and ruled upon in the opinions of this Court is a breach of professional conduct. If this Court, or members of the Court, believe a "egregious" breach of duty has been performed by an attorney then it is incumbent on us to refer the matter for proper bar discipline. While I find some of the argument inappropriate and unwarranted, I cannot find any error which would require relief in this case.
1[ 18 I continue to believe this Court should fully articulate the reasons for denying applications for evidentiary hearings pursuant to Rule 8.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1998). However upon review of the application in its entirety, I agree the application and affidavits do not contain sufficient evidence show this Court by clear and convine-ing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained of evidence.
119 I am authorized to state Judge Lile joins in this writing.