DISSENTING:
11 Errors in first and second stage deprived Abshier of a fair trial and reliable sentencing procedure. Initially I must note my continued dissent to this Court's erroneous interpretation of the child abuse murder statute. I disagree both with the conclusion that child abuse murder is a general intent crime,1 and with the consequent imposition of the death sentence for a general intent crime without a finding that Abshier was personally culpable for his daughter's murder.2
12 I disagree with the majority's resolution of Proposition II. Although prospective juror Copeland said he could hear the evidence with an open mind and consider all three punishments, he also stated he could not consider anything less than death for a defendant convicted of child abuse murder who relied on drugs or alcohol as an excuse. The trial court denied Abshier's request to exeuse Copeland for cause. Under the special circumstances of this voir dire examination this was error3 Usually we find that this type of statement is cured when a prospective juror later says he can consider all three punishments, because his expressed preference for the death penalty in a particular situation is theoretical-he doesn't know what the evidence will be. That is not the case here. Counsel had already said Abshier was guilty of child abuse murder and suggested his drug abuse would be offered in mitigation. Copeland said under those circumstances he would impose the death penalty. Any suggestion that he would consider any other evidence that might (but would not) be presented was meaningless. I disagree with the majority's mistaken conclusion that this issue was not preserved for review. Abshier asked Copeland be removed for cause, used a peremptory challenge to remove him, and made a record of the sitting juror he would have removed with that peremptory challenge. That is all that is required.4
T 3 Turning to errors in the second stage, I would grant Proposition XI. I once again note my opinion that jurors should be in*618formed of the meaning of life without parole.5 I also conclude there is insufficient evidence to support either aggravating circumstance. The allegation that Abshier presents a continuing threat to society is supported by the manner in which the crime was committed, plus unadjudicated instances of prior abuse to this victim. I have previously disagreed with the use of these factors to support this aggravating cireumstance.6 In order to support the claim that the murder was especially heinous, atrocious or cruel, the State must show conscious suffering from torture or serious physical abuse.7 The victim's body showed she had suffered horrific injuries, but the medical examiner could not confirm whether the child was conscious when they were inflicted. Abshier himself said only that he hit the victim and lost control, and that when the victim began whining he hit her. The State relied on opinion evidence from its child abuse expert, Dr. Stuemky, who stated he thought the victim was probably conscious because most child abuse continues until a child loses consciousness, then stops when the child stops erying. This evidence does not support the majority's conclusion that the victim was conscious for at least two of the blows. We have rejected this aggravating circumstance where there was no direct or circumstantial evidence of conscious suffering.8 I would similarly reject it here. I note briefly my disagreement with the majority's treatment of the egregious improper comments by the prosecutors in closing argument.9
1 4 Finally, I cannot agree with the majority that Abshier received effective assistance of counsel in this case. The lawyer for a person charged with a crime, at a minimum, must serve as an advocate for his client and hold the prosecution to its burden of proof. Defense counsel cannot abdicate that responsibility and concede guilt-at least not without the client's consent-and provide effective assistance to his client.10 I fully agree with the *619majority that in some cases there is simply no defense to be offered in the first stage, and that defense attorneys need to maintain enough credibility to effectively fight for a sentence less than death in the punishment phase of trial, However, I see a clear distinction between: (a) holding the state to its burden of proof by requiring it to put on evidence in support of each element of the crime charged and engaging in an adversarial testing of that evidence, while electing not to affirmatively present a defense;11 and (b) telling the jury outright that the defendant is guilty of the crime charged, as Abshier's defense attorney did throughout, from voir dire to the close of the first stage.12
1 5 The majority claims that the State still had to call its witnesses and prove up every element of the crime charged. However, where there is an outright concession of guilt, the jury is left with no reason or motivation to weigh the state's evidence or decide how much credibility to afford each witness's testimony. Accordingly, the presentation of the state's case becomes nothing more than a rote exercise; the result-a guilty verdict-is a foregone conclusion due to defense coun-set's concession of guilt.
T 6 The majority is wrong in suggesting we have condoned a similar failure of representation. In Wood v. State13 we held counsel did not concede guilt during first stage closing argument by telling jurors they would have a reasonable doubt if they did not understand or believe the DNA evidence or witnesses, but would not have a reasonable doubt if they believed the State's evidence. In Hale v. State14 we found counsel did not concede guilt during first stage closing argument by saying there was no doubt the defendant was involved in the crime but asking jurors to consider the extent to which Hale was involved. Trice v. State15 involved a capital post-conviction claim of ineffective assistance of appellate counsel. We held appellate counsel was not ineffective for failing to raise trial counsel's lack of effectiveness in conceding Trice's guilt as to rape (but not murder) where Trice confessed to the rape and the defense strategy focused on his lack of specific intent to commit murder. In none of these cases did trial counsel flatly tell prospective jurors, before trial even began, that his client was guilty.
T7 The majority's discussion of cases from other jurisdictions suffers from similar omissions. In Gomes the First Circuit held counsel reasonably conceded guilt as to one drug transaction, which was relatively minor and supported by overwhelming evidence, in order to argue his client was innocent of the remaining three charges.16 In Lucas, counsel conceded during first stage closing that his client was at the scene and probably committed the homicides, but argued he was too intoxicated to form the specific intent necessary for murder.17 Lucas relied on *620Cain, where the California Supreme Court held counsel was not ineffective, in a felony-murder case, for conceding that the evidence showed his client was guilty of the underlying felony and thus of felony murder under the law, but was not eligible for the death penalty.18 The California Court found that counsel had good strategic reasons for this argument and there was no indication that the defendant disagreed with it. As I discuss below, Abshier testified he was surprised and shocked to hear counsel concede his guilt. In Brown the Fourth Cireuit correctly noted that counsel who admits, in see-ond stage argument, the crimes of which the defendant was convicted in first stage, is not conceding guilt.19 The Court specifically "[did] not recommend [counsel's] arguments as a model" but found counsel was not ineffective for admitting the State's evidence supported the aggravating circumstances, before arguing his case in mitigation20 In Kitchens the Fifth Cireuit found counsel did not concede guilt where counsel admitted the defendant committed homicide but argued the cireumstances of the crime did not equal capital murder.21
T 8 We remanded this case for the District Court to determine (a) whether Abshier knew of and consented to counsel's decision to concede guilt in his case; (b) whether trial counsel was ineffective in second stage closing argument; and (c) whether trial counsel was ineffective by failing to investigate and call witnesses in mitigation. After independent review of the evidentiary hearing tran-seript, I must respectfully disagree with both the majority and the trial court. First, I cannot find Abshier knew of or consented to counsel's decision to concede guilt. The majority admits that Abshier stated he did not know counsel was going to concede his guilt in voir dire and was "shocked" to hear counsel do so. Counsel testified he could not remember advising Abshier of this decision and would not be surprised if he didn't, since at that point in the trial he was so angry with Abshier he had not spoken to him and felt his input would not be useful,. The majority dismisses this evidence by suggesting that Abshier cannot be believed since he is under sentence of death, and trial counsel is merely trying to save his client's life. Finally, the majority relies heavily on the fact that, after hearing counsel concede his guilt to the jury, Abshier never told anyone he disapproved of that action. Astonishingly the majority concludes that Abshier agreed to counsel's decision to concede guilt because "he made no effort at any time during the trial to express to the judge his disagreement" after the fact. Understandably, the majority cites no case for this novel conclusion that we will presume waiver from a silent record. In the absence of any expression of consent, and given the testimony at the evidentiary hearing, I must conclude that Abshier neither knew about nor consented to counsel's action conceding his guilt before trial even began.
T9 To make matters worse, counsel's performance did not improve in second stage. The majority opinion adopts the District Court finding that counsel's egregious closing remarks were made in an effort to be candid and establish a rapport with the jury. In closing argument, counsel stated "you are not going to consider a life sentence and you shouldn't"; referred to Abshier's mitigation evidence as "excuses"; commented on Abshier's right to remain silent by saying, "He couldn't even take the stand to tell you he did it";22 referred to Abshier's initial lies about *621how the victim died; told the jury that the victim did not have a chance from the time she was born; admitted Abshier was a continuing threat unless incarcerated and suggested the jury would decide the murder was especially heinous, atrocious or cruel; and said the jury should give Abshier the harshest penalty possible, which in counsel's opinion was life without parole rather than death. Predictably, this argument backfired. I cannot find defense counsel's closing argument marshaled the evidence for his side before submission of the case to judgment.23 Further, I cannot characterize as effective a technique which establishes a rapport with the jury by maligning one's client and disparaging his mitigating evidence.
1 10 Defense counsel did call relatives and some experts to testify to Abshier's family history and drug and alcohol addictions. At the evidentiary hearing on remand Abshier presented three family members he claims trial counsel should have found and called. All three would have testified that they knew Abshier as a happy, peaceful man who was good with children and not violent. Given the resounding evidence of counsel's ineffectiveness above, I do not determine whether counsel was ineffective for failing to find these witnesses, beyond noting that their testimony would certainly have been relevant had they been called. However, I take strong exception to the majority's comment that Abshier did not provide an affidavit stating he advised counsel of "the existence or names of these potential witnesses." When applying for an evidentiary hearing on the issue of ineffective assistance of trial counsel, appellate counsel must provide this Court with affidavits showing the strong possibility that trial counsel was ineffective by clear and convincing evidence.24 This is a stringent standard. This Court has never required a defendant to waive attorney-client privilege and reveal communications with trial counsel in affidavit form when raising an ineffective assistance claim.
. The majority appears to misunderstand the import of this conclusion. In discussing Proposition IV the majority suggests that other crimes evidence was relevant to prove Abshier's intent, although no specific intent to injure is required for the general intent crime of child abuse murder, because the State was required to prove Abshier acted willfully or maliciously. Fairchild went to great lengths to hold that neither of these terms requires proof of any specific intent, and the other crimes evidence admitted here could not have been relevant for that purpose. The majority also suggests that intent to kill, while not an element for guilt, would be relevant evidence in mitigation (op. at 596). I fail to see how lack of intent to kill can be relevant in mitigation if no intent was required to commit the crime and no Enmund/Tison evaluation is necessary (as the majority holds).
. Gilson v. State, 2000 OK CR 14, 8 P.3d 883, 931, 932 n. 13 (Chapel, J., dissenting); Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 395 n. 14, 398 n. 23, cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146 (Oct. 2, 2000); Fairchild v. State, 1999 OK CR 49, 998 P.2d 611, 637 (Chapel, J., dissenting). Although this Court has previously held in Fairchild, Gilson, and Malicoat that Enmund/Tison findings are not required, the majority apparently worries that those statements are insufficient, as the opinion repeats almost verbatim the flawed analysis used to justify this conclusion in Fairchild.
. Humphreys v. State, 1997 OK CR 59, 947 P.2d 565, 570-71.
. Cannon v. State, 1995 OK CR 45, 904 P.2d 89, 98, cert. denied, 516 U.S. 1176, 116 S.Ct. 1272, 134 L.Ed.2d 219 (1996); Ross v. State, 1986 OK CR 49, 717 P.2d 117, 120, aff'd, Ross v. Oklahoma, 487 U.S. 81, 89-90, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988); cf. Malicoat, 992 P.2d at 393 (issue preserved where defendant removed five challenged jurors with peremptories but could not remove sixth).
. Malicoat, 992 P.2d at 400, n. 43, and cases cited therein.
. See, eg., Gilson, 8 P.3d at 931, n. 3 (Chapel, J., dissenting); Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, 1108 n. 58, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998); Cannon, 904 P.2d at 106, n. 60.
. Malicoat, 992 P.2d at 398.
. See, eg., Turrentine v. State, 1998 OK CR 33, 965 P.2d 955, 976-77, cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562; Cheney v. State, 1995 OK. CR 72, 909 P.2d 74, 81; Perry v. State, 1995 OK CR 20, 893 P.2d 521, 533-34; Hayes v. State, 1992 OK CR 16, 845 P.2d 890, 892; Battenfield v. State, 1991 OK CR 82, 816 P.2d 555, 565, cert. denied, 503 U.S. 943, 112 S.Ct. 1491, 117 L.Ed.2d 632 (1992); Brown v. State, 1988 OK CR 59, 753 P.2d 908, 913. See also Washington v. State, 1999 OK CR 22, 989 P.2d 960, 975 (investigating officer's opinion of events at crime scene, based on physical evidence, barely supported State's theory of conscious suffering, but Court warned that evidence was not strong given lack of medical evidence and brief duration of crime).
. This Court has repeatedly condemned the 'three hots and a cot" argument, only to be ignored. Hooks v. State, 2001 OK CR 1, ¶52, 19 P.3d 294 (see Note 55 and cases cited therein); Washington, 989 P.2d at 979.
. The Tenth Circuit has held that "an attorney who adopts and acts upon a belief that his client should be convicted 'fail[s] to function in any meaningful sense as the governments adversary.'" Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir.1988)(quoting U.S. v. Cronic, 466 U.S. 648, 666, 104 S.Ct. 2039, 2051, 80 L.Ed.2d 657 (1984). Accord, Francis v. Spraggins, 720 F.2d 1190, 1194 (11th Cir.1983), cert. denied, 470 U.S. 1059, 105 S.Ct 1776, 84 L.Ed.2d 835 (1985)("Where a capital defendant, by his testimony as well as his plea, seeks a verdict of not guilty, counsel, though faced with strong evidence against his client, may not concede the issue of guilt merely to avoid a somewhat hypocritical presentation during the sentencing phase and thereby maintain his credibility before the jury."); Wiley v. Sowders, 647 F.2d 642, 650 (6th Cir.), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70 LEd.2d 630 (1981)(counsel's complete concession of the defendant's guilt nullifies the defendant's right to have the issue of guilt or innocence presented to the jury as an adversarial issue and therefore constitutes ineffective assistance of counsel); Ramirez v. U.S., 17 F.Supp.2d 63 (D.R.I.1998)(counsel's acknowledgment that the defendant was guilty of all charges held so egregious, and so undermined the adversarial process and confidence in the justness of the result, that prejudice was presumed); People v. Hattery, 109 Ill.2d 449, 94 Ill.Dec. 514, 488 NE.2d 513, 519 (1985), cert. denied, 478 U.S. 1013, 106 S.Ct 3314, 92 L.Ed.2d 727 (1986)(counsel's strategy of conceding guilt in order to concentrate efforts at avoiding death penalty was "totally at odds with defendant's earlier plea of not guilty" and although strategy may have been a reasonable one in light of the overwhelming evidence of client's guilt, it was an impermissible one); State v. Harbison, 337 *619S.E.2d 504, 507-08 (N.C.1985), cert. denied. 476 U.S. 1123, 106 S.Ct 1992, 90 L.Ed.2d 672 (1986)(concluding per se ineffective assistance of counsel is established in every case where a defendant's counsel admits the defendant's guilt to the jury without the defendant's consent); State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984)(even if defense counsel only impliedly concedes guilt without client's consent, error requires reversal "even if it can be said that the defendant would have been convicted in any event.").
. See eg., Malicoat, 992 P.2d at 405-406 (defense counsel not ineffective for sound strategic decision to refrain from presenting a defense in first stage).
. In a case with facts almost identical to these, the Supreme Court of Illinois found counsel's unequivocal concession of guilt in order to focus on avoiding the death penalty failed to subject the state's case to the "meaningful adversarial testing" required by the Sixth Amendment, and defendant's murder convictions were reversed. Hattery, 94 Ill.Dec. 514, 488 N.E.2d at 519.
. Wood v. State, 1998 OK CR 19, 959 P.2d 1, 15-16.
. Hale v. State, 1988 OK CR 24, 750 P.2d 130, 142, cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164.
. Trice v. State, 1996 OK CR 10, 912 P.2d 349, 355. This post-conviction case was decided before the sweeping amendments to the capital post-conviction statute.
. United States v. Gomes, (1st.Cir.1999). 177 F.3d 76, 83
. People v. Lucas, 12 Cal.4th 415, 48 Cal.Rptr.2d 525, 907 P.2d 373, 392 (Cal.1995), cert. denied, 519 U.S. 838, 117 S.Ct. 114, 136 L.Ed.2d 66 (1996).
. People v. Cain, 10 Cal.4th 1, 40 Cal.Rptr.2d 481, 892 P.2d 1224, 1241-42 (1995), cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734.
. Brown v. Dixon, 891 F.2d 490, 500 (4 Cir.1989), cert. denied, 495 U.S. 953, 110 S.Ct. 2220, 109 L.Ed.2d 545 (1990). s
. Brown, 891 F.2d at 501. See also Carter v. Johnson, 131 F.3d 452 (5th Cir.1997), also cited by the majority, where during the penalty phase counsel stated the jury would be justified in imposing the death penalty, before pleading for mercy and urging the jury to return a life sentence.
. Kitchens v. Johnson, 190 F.3d 698, 704 (5 Cir.1999). The Texas capital sentencing scheme requires a jury to determine at the close of the guilt phase whether the defendant has committed a capital crime before moving to a capital penalty phase.
. I cannot agree that this is a laudable attempt to tell the jury Abshier took responsibility for his actions.
. Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 LEd.2d 593 (1975)(no aspect of our adversary criminal justice system could be more important than the opportunity of each side to marshal the evidence in closing arguments before submission of the case to judgment).
. Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001).