Dissenting:
¶ 1 I dissent from today’s opinion because I disagree with the majority’s resolution of Propositions I, V, VI, and VIII of Hogan’s appeal.1
¶2 Hogan admitted that he killed Lisa Stanley. His defense to the first-degree murder charge against him was that he killed her in a “heat of passion,”, which constituted first-degree manslaughter rather than malice-aforethought murder. In Proposition I, Hogan claims that his jury should have been instructed on his theory of defense, ie., that the killing was heat-of-passion manslaughter, and that the State was required to prove, beyond a reasonable doubt, that he did not kill in the heat of passion.2 Today’s majority opinion accepts all the basic components of Hogan’s argument, but declines to reach the conclusion they portend.
*938¶ 3 The majority opinion accepts the following components of Hogan’s argument. First, “trial courts have a duty to instruct the jury on the salient features of the law raised by the evidence with or without a request.”3 Second, Hogan “defended the first degree murder charge by attempting to convince the jury that he did not kill Stanley with a deliberate intent but rather acted in a heat of passion.”4 Third, “[ojnce a defense is raised[,] the defendant is entitled to an instruction on his theory of defense.”5 Fourth, “[t]he burden of persuasion remains on the State to prove each element of the crime charged beyond a reasonable doubt and thus to prove beyond a reasonable doubt the absence of any affirmative defense raised.”6
¶ 4 Thus the logical legal conclusion to draw from the Court’s analysis appears to be that once sufficient evidence has been presented at trial to raise the affirmative defense (to a first-degree murder charge) of heat-of-passion manslaughter, the trial court should be required, with or without a request from the defendant, to instruct the jury that heat-of-passion manslaughter is the defendant’s defense and to instruct the jury that in order to convict the defendant of first-degree murder, the State is required to establish, beyond a reasonable doubt, that the defendant was not acting in the heat of passion. This conclusion is also the logical extension of the precedents of this Court.
¶ 5 In Mullaney v. Wilbur,7 a unanimous Supreme Court held that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.”8 In United States v. Lofton,9 the Tenth Circuit Court of Appeals concluded that “Mullaney requires us to hold that a defendant in a federal murder case who has sufficiently raised a heat of passion defense is entitled to instructions informing the jury of the theory of defense and of the Government’s duty to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction.”10
¶ 6 In Davis v. Maynard,11 the Tenth Circuit Court of Appeals considered an Oklahoma defendant’s habeas corpus challenge to the jury instructions in his first-degree murder trial. The Davis court began by emphasizing the limited context of habeas review.12 *939The court also emphasized that Davis, unlike the defendants in Mullcmey and Lofton, did not present a heat-of-passion defense, since his “sole defense at trial was self-defense.”13 Finally, after examining the specific jury instructions at issue, the Davis court concluded that these instructions, “unlike those in Lof-ton, explicitly defined malice and heat of passion as mutually exclusive.”14 Thus the finding by Davis’s jury that he killed with malice aforethought “necessarily implies the absence of heat of passion.”15
¶ 7 In McCormick v. State,16 our Court addressed the “unique situation” where the offense of heat-of-passion manslaughter “functioned not as simply an alternative to the charge of murder, but as an affirmative defense to the crime charged by the State.”17 Although McCormick’s jury was instructed on the elements of heat-of-passion manslaughter, the trial court refused to give an additional instruction specifically informing the jury that it could only convict McCormick of first-degree murder if the State proved, beyond a reasonable doubt, that he was not acting in the heat of passion.18 While this Court acknowledged the appropriateness of such an instruction, we ruled that the trial court’s failure to so instruct was not reversible error.19 We found that McCormick’s case was more like Davis than Lofton, because it involved jury instructions that were “mutually exclusive.”20 “[T]he language used by the trial court was unequivocal; a murder conviction required proof of a deliberate intent to kill[,] while manslaughter should be found if the killing was done without a design to effect death.”21 Thus the instructions defined the two mental states and the two crimes such that they did not overlap and could not co-exist.22
*940¶8 This brings us to Black v. State,23 in which this Court addressed jury instructions just like the ones used at Hogan’s trial and a challenge just like the one being made in Hogan’s appeal.241 do not dispute the majority’s assertion that under the analysis of Black, Hogan’s Proposition I claim fails. I maintain, however, that the analysis of Black on this issue was and is flawed and inconsistent with our caselaw. Furthermore, the faulty analysis of Black has needlessly delayed the salutary adoption of a uniform jury instruction addressing the proper approach to a defendant’s assertion of heat-of-passion manslaughter as an affirmative defense to first-degree murder.25
¶ 9 The first-degree murder defendant in Black — like the defendants in Mullaney, Lof-ton, and McCormick, and like Hogan — invoked heat-of-passion manslaughter “not simply as an alternative to the charge of murder, but as an affirmative defense to the crime charged by the State.”26 Although Black’s jury was instructed regarding the elements of first-degree murder and the lesser offense of heat-of-passion manslaughter, according to all of the current uniform instructions for these offenses, his jury was not advised that heat-of-passion manslaughter was his defense, nor was his jury informed that the State had to disprove this defense, in order for him to be convicted of first-degree murder.27 Black challenged the trial court’s failure to instruct on these two issues, just as Hogan does in the current appeal.28
*941¶ 10 We acknowledged in Black that “this Court has been inconsistent in its rulings on whether a defendant can commit heat of passion manslaughter if the defendant intended to kill.”29 We concluded, however, that we did not need to resolve this inconsistency in Black, because the instructions used in Black’s case did not contain any language defining manslaughter as a homicide “perpetrated without a design to effect death.”30 Instead, Black’s jury was instructed that a conviction for heat-of-passion manslaughter required the State to prove: 1) the death of a human; 2) caused by the defendant; 3) the death was not excusable or justifiable; 4) the death was inflicted by means of a dangerous weapon; and 5) when performing the conduct which caused the death, defendant was in a heat of passion.31 Hence Black’s jury was not required to make such a finding, and any inconsistency regarding this element could not have prejudiced Black.32
¶ 11 Remarkably, after emphasizing that Black’s jury was not instructed that heat-of-passion manslaughter required a lack of intent to kill, the Black opinion goes on to conclude that under Davis and McCormick — which specifically relied upon the inclusion of this very instruction — the jury instructions given to Black’s jury were not erroneous.33 The Black opinion noted that Black’s jury was instructed according to the uniform instructions relating to heat-of-passion manslaughter.34 Hence Black’s jury and Hogan’s jury were both instructed according to the following uniform instruction:
The passion or emotion which must exist in the defendant refers to any strong emotion, such as fear, terror, anger, rage or resentment. This passion or emotion must have existed to such a degree as would naturally affect the ability to reason and render the mind incapable of cool reflection. However, the passion need not have been such as ivould entirely overcome reason, or be so overpowering as to destroy free exercise of choice. ... 35
Nevertheless, the Black opinion concluded that, under these instructions, acting in the “heat of passion” and acting with “deliberate intent” are “mutually exclusive” and that these mental states “cannot co-exist.”36
*942¶ 12 This analysis, upon which today’s majority opinion rests its rejection of Hogan’s Proposition I claim, is indefensible. While it was plausible to conclude that the instructions used in McCormick — where heat-of-passion manslaughter was defined as a homicide “perpetrated without a design to effect death” — made the mental states for heat-of-passion manslaughter and first-degree murder “mutually exclusive,” such a conclusion cannot be sustained when this lack of a “design to effect death” has been. eliminated from the instruction defining the elements of heat-of-passion manslaughter, particularly when the above-quoted definition of “passion” is given.
¶ 13 Our uniform instruction defining what kind of “passion” must exist for heat-of-passion manslaughter makes quite clear that acting in the “heat of passion” and acting with “deliberate intent” are not mutually exclusive.37 Although the heat of passion can “affect” a person’s ability to reason, it does not necessarily “overcome reason” or “destroy free exercise of choice.” Hence a jury can properly convict a defendant of heat-of-passion manslaughter, even though the jury believes that the defendant had a deliberate intent to kill.38
¶ 14 This conclusion fits with our commonsense understanding that even when people are affected by very strong emotions, this does not necessarily mean that they lose complete control of their ability to control their actions, nor does it mean that they cannot act deliberately, such that they can and should be held accountable for their ac*943tions.39 In fact, this same commonsense understanding of human behavior appears to be the basis for establishing heat-of-passion manslaughter as a crime, while recognizing that it is a lesser crime than first-degree murder.40 It is also consistent with our recognition that heat-of-passion manslaughter can serve as an affirmative defense — though not a complete defense — to first-degree murder.
¶ 15 Although the Black opinion concluded that the instructions in that case were “constitutionally adequate,”41 it acknowledged that “more specific instructions,” regarding the jury’s consideration of heat-of-passion manslaughter as an affirmative defense to first-degree murder, could be “desirable.”42 Today’s majority opinion likewise recognizes that “more specific instructions setting forth heat of passion manslaughter as a defense rather than a lesser included offense, if requested, may be better suited and desirable.”43 I maintain that such instructions are not only desirable, they are necessary under the constitutional mandate of Due Process. Heat-of-passion manslaughter is an appropriate affirmative defense to a malice-aforethought murder charge in Oklahoma. Hence a defendant who relies upon this defense is entitled to an instruction informing his jury of it, as long as some evidence has been admitted that supports the defense.44 Furthermore, such a defendant is also entitled to an instruction informing his jury that the State is required to disprove this defense, in order for him to be convicted of first-degree murder.
¶ 16 Most of the affirmative defenses recognized in Oklahoma (and noted by the majority opinion) are “complete defenses” or “exculpating defenses.” Such defenses, when properly established, totally absolve the defendant of criminal liability. These defenses include insanity, self-defense, defense of another, accident, involuntary intoxication, and duress.45 Although a defendant can certainly raise heat-of-passion manslaughter as an affirmative defense to a malice-aforethought murder charge, this defense is an “incomplete defense” or “partial de*944fense.”46 Although such a defense diminishes the extent of the defendant’s criminal liability, it does not absolve the defendant of criminal liability. Rather, this partial defense suggests that the defendant should be convicted of a separate, lesser crime.
¶ 17 Therefore, an Oklahoma jury should be required to consider this defense, when it is properly raised, but a finding that it applies would result in a conviction on the lesser offense of first-degree manslaughter rather than simply an acquittal. I suggest that when a defendant charged with malice-aforethought murder asserts heat-of-passion manslaughter as a defense and some evidence is presented at trial in support of the defense, the jury should be instructed regarding the availability of this defense and the State’s burden to disprove it. Such an instruction (or instructions) could state as follows:
Evidence has been introduced that the killing in this case constitutes first-degree (heat-of-passion) manslaughter, as a defense to the charge of first-degree murder.47
You are instructed that you must first consider whether the defendant committed the crime of first-degree manslaughter, as defined in these instructions. If you unanimously agree that the evidence presented establishes, beyond a reasonable doubt, that the defendant committed the crime of first-degree manslaughter, you should convict him of first-degree manslaughter.
You are further instructed that in order to convict the defendant of first-degree murder, the State must prove, beyond a reasonable doubt, that he/she did not commit first-degree manslaughter. If you unanimously agree that the defendant did not commit the crime of first-degree manslaughter, you should then consider whether he/she committed the crime of first-degree murder, as defined in these instructions.48
It is my belief that we should stop making excuses for the failure to give such an instruction, stop contorting the English language to rationalize our failure to require one, and start requiring that such an instruction be given.
¶ 18 I would conclude that Hogan should prevail on his Proposition I claim, by finding that the trial court committed plain error and violated Due Process when it failed to instruct Hogan’s jury regarding his affirmative defense and the State’s burden to disprove it. This conclusion follows from the Supreme Court’s decision in Mullaney and our Court’s decision in McCormick, as well as our well-established approach to the treatment of affirmative defenses. This conclusion is also consistent with the Tenth Circuit Court’s decisions in Lofton and Davis.49
¶ 19 I recognize the irony of granting Hogan a further retrial on a claim that seems only one step removed from the error that led to his first retrial, particularly when Hogan did not object to the court’s instructions or propose an instruction of the sort he now maintains was required. Nevertheless, the lesson of Black is that when this Court strains to uphold a conviction, despite a trial court’s inadequate instructions to the defendant’s jury, the same inadequate instructions will continue to be given in other cases. And this Court will again be faced with the same issue in another hard case, in another appeal.
¶ 20 In Proposition Y, Hogan challenges the trial court’s refusal to instruct his jury regarding the “exculpatory statement doctrine.” The uniform instruction sought by *945Hogan would have instructed his jury: “Where the State introduces in connection with a confession or admission of a defendant an exculpatory statement which, if true, would entitle him/her to an acquittal, he/she must be acquitted unless such exculpatory statement has been disproved or shown to be false by other evidence in the case.”50 The majority opinion rejects this claim as follows: “The trial court did not abuse its discretion in refusing to give a jury instruction on exculpatory statements because Hogan’s statement to the police was disproved by other evidence in the case.”51
¶ 21 Although I would be willing to agree with a specific finding that Hogan’s statement to the police was not truly “exculpatory,” as that term is defined in our uniform instruction,521 cannot agree with the Court’s implicit finding that we can disregard the evidentiary significance of the defendant’s own words where “other evidence” “disproved” what he said. Hogan was granted habeas relief from the 10th Circuit regarding his original conviction because, in essence, this Court declined to properly consider whether Hogan’s statements were sufficient to warrant a jury instruction on heat-of-passion manslaughter.53 We should not make a parallel mistake or misstatement in this round. If Hogan’s statement was actually exculpatory, he would have been entitled to the exculpatory statement instruction, regardless of the “other evidence in the case.” I do not believe that Hogan’s statement was exculpatory, yet I am not comfortable with the majority opinion’s analysis.
¶ 22 I also disagree with the majority opinion’s resolution of Hogan’s Proposition VI marital privilege claim. In my judgment the theoretical and policy bases for protecting spousal communications — family harmony, affection, confidence, and loyalty within the marital relationship — are as valid today as they were 300 years ago. We ought not force or permit one spouse to testify against the other regarding a “confidential communication” between them, and Oklahoma’s current Evidence Code continues to protect such communications.54
¶23 Here Hogan contrived a story and asked his wife to lie by repeating it. The majority opinion’s analysis conflates the contrived story with the request to lie and concludes that the privilege was waived, because the (false) story was intended to be and was disclosed. Of course it is true that Hogan did not intend that his wife keep the contents of the concocted story “confidential,” since he asked his wife to tell the story in order to provide him with an alibi. That was the whole point. But the “confidential communication” at issue is Hogan’s admission to his wife that the story he was asking her to recount was untrue. I would hold that Hogan should have been allowed to prevent his wife from testifying that Hogan acknowledged to her that the alibi story was a lie and that he asked her to tell this lie to police.
¶24 In Proposition VIII, Hogan argues that because his original jury rejected the *946“continuing threat” aggravating circumstance, it violated Double Jeopardy to allow the State to re-pursue this aggravator in the second stage of the retrial of this case. Hogan argues that he was effectively “acquitted” of the continuing threat aggravator; hence the State should not have been allowed to try him again on this same aggravator. I conclude that Hogan is correct. Recent authority from the United States Supreme Court strongly suggests that it does violate Double Jeopardy to allow the State to re-pursue an aggravating circumstance that was rejected by a prior capital jury in the same case. Furthermore, a broader understanding of Double Jeopardy in the context of a capital sentencing is consistent with the approach taken by this Court until up until 1996.
¶ 25 The majority’s analysis is based upon Poland v. Arizona,55 In Poland, the Supreme Court ruled that it did not violate Double Jeopardy to allow the State to go back and try again to get a death penalty verdict, even though it was determined on appeal that the only aggravating circumstance found by the original factfinder was not supported by sufficient evidence — as long as other evidence in the record supported a separate aggravator.56 I acknowledge that the analysis of the majority opinion in Poland is contrary to Hogan’s claim on appeal. Hence Hogan can prevail upon his Proposition VIII claim only if this Court agrees that we should no longer follow Poland.
¶ 26 I begin by noting that this Court did not immediately adopt the narrow understanding of Double Jeopardy represented by Poland. In fact, this Court maintained a broader approach to capital-stage Double Jeopardy — and an approach directly contrary to Poland — for nine and one-half years after the Supreme Court’s 1986 decision in Poland. In our 1992 decision in Crawford v. State,57 in an opinion by Judge Lumpkin, this Court held that where the sole aggravating circumstance found by the jury was not supported by sufficient evidence, we were required to remand the case for resentencing, where the only punishments that could be considered were life and life without parole.58
¶ 27 This Court concluded in Crawford:
Having found that the evidence does not support the sole aggravating circumstance found by the jury, we have no alternative but to REMAND THE CASE FOR A NEW TRIAL ON SENTENCING.... Since the remand for resentencing is due to insufficiency of the evidence to support the aggravating circumstance, the sentencing options at resentencing are limited to imprisonment for life or life without parole.59
We did not consider or discuss whether other aggravating circumstances could have applied to the murder in Crawford. Hence we did not take the approach outlined by the Supreme Court in Poland.
¶ 28 This Court continued to take the approach of Crawford up through our 1995 decisions in Perry v. State60 and Cheney v. State.61 In Perry, after finding that the evidence was insufficient to support either of *947the two aggravating circumstances found by the jury,62 this Court held that it was required to modify the defendant’s sentence to life imprisonment without parole, without any discussion or consideration of allowing the State to re-pursue the death penalty.63 We concluded, “Because the evidence will not support the two charged aggravating circumstances, we find that Perry’s sentence of death must be vacated and modified to life without the possibility of parole.”64 Similarly, in Cheney, after finding that the sole aggravating circumstance found by the jury in that case was not adequately supported by the evidence, we again concluded that we were required to modify the defendant’s sentence to life without parole.65
¶ 29 Consequently, over nine and one-half years after the Supreme Court’s decision in Poland, this Court was still taking the position that if the evidence in the record was insufficient to support the aggravating circumstance(s) found by the jury in a particular ease, the defendant had been effectively “acquitted” of the death penalty; and the State would not be allowed to pursue it again in a resentencing.66 In this consistent line of published cases, we did not even consider, as the Supreme Court did in Poland, whether there was other evidence in the record that could have been used to support a separate aggravator. If the evidence presented by the State was inadequate to sustain the ag-gravator(s) found in the previous capital sentencing, we did not allow the State another chance at the death penalty.67
¶30 This approach changed dramatically with this Court’s 1996 decision in Salazar v. State.68 In Salazar, we found that the sole aggravating circumstance found by the jury (on resentencing) was not supported by sufficient evidence.69 This time, however, we cited and quoted extensively from the Supreme Court’s Poland decision.70 We then adopted the Poland approach as our own and applied it to the case on review.71 We followed this same approach in Frederick v. State,72 and *948we have continued to follow Poland since 1996.73
¶ 31 I maintain, however, that the United States Supreme Court, through the still-unfolding Apprendi/Ring Revolution, has rejected the doctrinal basis for its decision in Poland. The Poland decision was inconsistent with the Supreme Court’s preceding and landmark decision in Bullington v. Missouri,74 in which the Court noted that in the capital sentencing context, the State was only entitled to “one fair opportunity to offer whatever proof it could assemble.”75 And more importantly, it is inconsistent with the Supreme Court’s current understanding of the jury’s role in sentencing generally and in capital sentencing, in particular.
¶ 32 In Ring v. Arizona,76 which evolved from the broader sentencing revolution begun in Apprendi v. New Jersey,77 the Supreme Court recognized that because the capital sentencing process is analogous to the guilt stage of trial, many of the constitutional protections applicable to the determination of a defendant’s guilt must be applied equally to the determination of whether a capital defendant should be sentenced to death. In particular, Ring held that “[bjecause Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ ... the Sixth Amendment requires that they be found by a jury.”78
¶ 33 Thus in Ring the Supreme Court inaugurated its current approach to understanding aggravating circumstances as the “functional equivalent” of “elements of a greater offense,” where the lesser offense is simply first-degree murder or “murder sim-pliciter,” for which the death penalty is not an authorized punishment, and the greater offense is “murder plus one or more aggravating circumstances,” for which the death penalty is an authorized punishment.79 While this shift might seem mere semantics to some, in fact, the change is fundamental and quite significant.
¶ 34 This brings us to Sattazahn v. Pennsylvania,80 The narrow holding in Sattazahn is not particularly striking — a 5-4 majority holds that where a capital-stage jury becomes “deadlocked” during its deliberations, this is not an “acquittal” on the death *949penalty.81 Hence the State can re-pursue the death penalty in a resentencing or retrial in the same case.82 Thus Sattazahn applies the same rule to capital-stage “hung juries” that the Court has consistently applied to hung juries in the guilt stage.83
¶35 “A closer look at the various Satta-zahn opinions, however, reveals that at least six members of the current Supreme Court fundamentally disagree with the doctrinal basis for Poland and strongly suggests that these six justices would overturn Poland if presented with the same issue.”84 Justice Scalia wrote the majority opinion in Sattazahn,85 The Sattazahn majority opinion acknowledges the decision in Poland, summarizes it, and notes that Poland “distinguished Bullington and Rumsey.”86 Yet a careful review of Part III of Scalia’s (plurality) opinion, along with Ginsburg’s dissent, reveals that a substantial majority of the justices now on the Court no longer view Double Jeopardy protections in the capital sentencing context in the narrow manner upon which Poland relied.
¶36 Section III begins by noting that “[wjhen Bullington, Rumsey, and Poland were decided, capital-sentencing proceedings were understood to be just that: sentencing proceedings.”87 And such “sentencing proceedings” were understood as different from trials “in a respect crucial for purposes of the Double Jeopardy Clause: They dealt only with the sentence to be imposed for the ‘offence’ of capital murder.”88 Hence the Court in this earlier era “continually tripped over the text of the Double Jeopardy Clause.”89
¶ 37 Section III emphasizes however, that “recent developments,” namely, Apprendi and Ring, “have illuminated this part of our jurisprudence.”90 Section III summarizes these landmark decisions and their expanded view of the Sixth Amendment’s jury-trial guarantee.91 It continues:
We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an “offence” for purposes of the Fifth Amendment’s Double Jeopardy Clause ... In the post-Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings consistent with the text of the Fifth Amendment.92
And Section III clearly concludes that a jury’s findings on aggravating circumstances are like minitrials on separate offenses, where the guilt-stage verdict is for the lesser offense of “murder simpliciter” and the second stage involves a trial on the greater offense of “murder plus one or more aggravating circumstances.”93 Thus Section III asserts, “If a jury unanimously concludes that a State has failed to meet its burden of proving the existence of one or more ag*950gravating circumstances, double-jeopardy protections attach to that ‘acquittal’ on the offense of ‘murder plus aggravating circumstance(s).’ ”94
¶ 38 The Sattazahn dissenters would have gone even further, since they maintain that even the entry of a statutorily-mandated life sentence, when a jury cannot reach a verdict, should prevent the State from pursuing the death penalty in a retrial.95 It must be noted, however, that the four dissenters agreed with Section III of Scalia’s opinion that, in the post-Ring world, when a jury “acquits” a defendant on an aggravating circumstance, that aggravating circumstance cannot be pursued in any retrial or resen-tencing in the same case. The Sattazahn dissenters note: “This Court has determined ... that for purposes of the Double Jeopardy Clause, capital sentencing proceedings involving proof of one or more aggravating factors are to be treated as trials of separate offenses, not mere sentencing proceedings.” 96
¶39 Therefore, a careful review of the various opinions in Sattazahn reveals that a strong majority of the Court’s current members have rejected the view of capital sentencing upon which Poland is based. As today’s majority emphasizes, Poland dismissed the claim that a capital-sentencing jury’s failure to find a particular aggravating circumstance “constitutes an ‘acquittal’ of that circumstance for double jeopardy purposes.” 97 The Poland Court emphasized that it was not prepared to “view the capital sentencing hearing as a set of minitrials on the existence of each aggravating circumstance,” since aggravating circumstances “are not separate penalties or offenses.”98
¶40 Yet as early as Bullington and as recently as Ring and Sattazahn, the Supreme Court has clearly announced that a capital sentencing is not merely a “sentencing proceeding.” Rather, in many critical constitutional respects, a capital sentencing is, in fact, a “minitrial” or separate factual determination regarding the aggravating circumstance(s) alleged by the State. In particular, a capital sentencing is a minitrial on the offense of murder-plus-one-or-more-aggravating-circumstanees, to which the protections of Double Jeopardy apply, just as they do in the context of the jury’s first-stage verdict.99
¶ 41 It is my belief that the Supreme Court will overrule Poland when the issue of its enduring legitimacy is properly before the Court. It is also my belief that when a constitutional right as precious as the protection against Double Jeopardy is at issue, and when a man’s very life is on the line, we need not and should not wait until the proper test case winds its way to the Supreme Court *951docket. The constitutional handwriting is on the wall. We should read it and announce that this Court will no longer follow Poland. We did not adopt Poland when it was first decided, and we remain free to reject Poland now.
¶ 42 At a minimum, this Court should not reach out to reaffirm the questionable analysis of Poland in a case that does not necessarily require us to do so. In Brown v. Sanders,100 the Supreme Court recently announced that when a death penalty case involves a jury’s consideration of an invalid aggravating circumstance, the focus of appellate review should be on whether the invalid “sentencing factor” allowed the jury to give “aggravating weight” to evidence that would not otherwise have been before it.101 Because Hogan’s retrial jury declined to find the “continuing threat” aggravating circumstance, under Oklahoma law, the jury should not have considered this aggravator (or the evidence presented to support it) within its determination about whether to sentence Hogan to death. Hence it could be argued that Hogan’s current claim is moot.
¶ 43 In light of Sanders, however, it should be acknowledged that by alleging the continuing threat aggravator in Hogan’s retrial, over defense objection, the State was allowed to present evidence during the retrial’s sentencing phase that would not otherwise have been admissible — since the State’s evidence would otherwise have been limited to evidence supporting the “heinous, atrocious, or cruel” aggravating circumstance. Thus the State’s aggravating evidence should have been limited to evidence about the circumstances of Stanley’s murder.
¶ 44 Because the State was allowed to pursue the continuing threat aggravator, however, it was allowed to present evidence that Hogan had committed burglaries in the Oklahoma City and Moore area; that he shot out windows at a business from which he had been fired; that he threatened the family of a former business partner; and that he once molested an eleven-year-old neighbor girl. The majority opinion does not address any of this evidence or its significance. Yet none of this evidence could have been put before Hogan’s jury if the State had been prevented, under the constitutional protection against Double Jeopardy, from re-pursuing the continuing threat aggravator.
¶ 45 I recognize that both juries that were presented this evidence rejected the continuing threat aggravator. After reviewing the actual evidence regarding each of these incidents, though certainly not flattering to Hogan, I understand why the juries declined to find this aggravator. Consequently, I could be comfortable with a conclusion by this Court that even though the State should not have been allowed to pursue the continuing threat aggravating circumstance, this constitutional error turned out to be harmless under the specific circumstances of this case.
¶ 46 Today’s decision could have resolved Hogan’s Proposition VIII claim by deciding that any Double Jeopardy violation was rendered moot by the resentencing jury’s rejection of the continuing threat aggravator and/or by concluding that the admission of evidence in support of this aggravator was harmless beyond a reasonable doubt. I would prefer that today’s decision had taken such an approach, rather than relying on the constitutionally unstable foundation of Poland.
¶ 47 For the reasons articulated herein, I dissent from today’s decision.
LUMPKIN, V.P.J.: Concur in Results:
¶ 1 In concur in the affirmance of the judgment and sentence in this case. I write *952separately to note that as stated in my separate writing to Hanes v. State, 973 P.2d 330, 338 (Okl.Cr.1998) this Court has previously reviewed mixed questions of law and fact based upon an abuse of discretion standard, asking whether the trial court’s findings of fact are supported by the record, and not a de novo review. However, based upon stare decisis I agree with the Court’s resolution of the claim of ineffective assistance of counsel.
¶ 2 Additionally, in Proposition XIII, Appellant’s mere listing of issues for this Court to consider is insufficient to invoke appellate review. I find Appellant has waived appellate review as he has not provided any argument or authority as to why this Court should reconsider it prior rulings on six different issues. See Rule 3.5C, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001). See also Romano v. State, 1995 OK CR 74, ¶ 65, 909 P.2d 92, 117.
ORDER GRANTING REHEARING BUT DENYING RECALL OF THE MANDATE
¶ 1 Appellant filed a Petition for Rehearing and Motion to Recall the Mandate in the above-styled appeal on June 5, 2006. He requests reconsideration of this Court’s decision affirming his conviction for first-degree murder and sentence of death. See Hogan v. State, 2006 OK CR 19,139 P.3d 907 (May 15, 2006).
¶2 “Petition for Rehearing shall not be filed as a matter of course, but only for two reasons:
1. Some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
2. The decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.”
Rule 3.14, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006).
¶ 3 In seeMng rehearing, Appellant claims that this Court incorrectly decided the claims raised in Propositions I, II, III and VIII and the decision is in conflict with controlling authority. We disagree. The decision rendered in this case disposed of the issues raised relying upon appropriate authority and we deny rehearing on this basis.
¶4 Appellant also claims questions decisive of the case that were duly submitted were overlooked by the Court. The opinion does not address Appellant’s claim that trial counsel was ineffective for failing to challenge the jury instructions submitting first degree manslaughter as a lesser included offense or the prosecutor’s allegedly improper statements to the jury on intent to kill. Neither of these issues, however, is decisive and requires relief.
¶ 5 We held the jury instructions, when read as a whole, fairly and accurately stated the applicable law. Hogan v. State, 2006 OK CR 19, ¶44. Hogan, thus, cannot show that he was prejudiced by counsel’s failure to object to the court’s instructions and he cannot prevail. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246. Nor do we find that the prosecutor’s argument concerning intent to kill and how it can be formed erroneously instructed the jury on the issue of intent to kill. Wackerly v. State, 2000 OK CR 15, ¶¶ 29-30, 12 P.3d 1, 12.
¶ 6 The Petition for Rehearing is GRANTED. The Motion to Recall the Mandate is, however, DENIED.
¶ 7 IT IS SO ORDERED.
¶ 8 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 28th day of June, 2006.
/s/ Charles S. Chapel, Dissents CHARLES S. CHAPEL, Presiding Judge
/s/ Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge
/s/ Charles A. Johnson CHARLES A. JOHNSON, Judge
/s/ Arlene Johnson ARLENE JOHNSON, Judge
/s/ David Lewis DAVID LEWIS, Judge
. I must also note that I concur in the resolution of Proposition II only by reason of stare decisis.
. Hogan did not object to the jury instructions given during his retrial, nor did he offer an instruction of the sort he now asserts should have been given by the trial court. Hence he argues that the failure of the trial court, sua sponte, to instruct the jury on his theory of defense and the State's burden to disprove it was plain error.
. See Majority Opinion, p. 923 (citations omitted).
. Id.
. Id. at p. 924 (internal citations omitted).
. Id. at p. 924 (citation omitted). In support of this statement, the majority opinion cites our uniform jury instructions for other affirmative defenses, which are structured such that once sufficient evidence has been presented (by either party) to raise a particular affirmative defense, the trial court is required to instruct the jury on that defense and to instruct that the State is required to prove, beyond a reasonable doubt, the absence of that defense. See id. at p. 923 n. 10.
. 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
. Id. at 704, 95 S.Ct. at 1892. The Mullaney case involved a Maine jury instruction that informed the jury that if the State proved that a homicide was both intentional and unlawful, malice aforethought had been established, unless the defendant could prove, by a preponderance of the evidence, that he acted in the heat of passion on sudden provocation. Id. at 686, 95 S.Ct. at 1883. The Mullaney Court noted that "the presence or absence of the heat of passion on sudden provocation!] has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide.” Id. at 696, 95 S.Ct. at 1888.
. 776 F.2d 918 (10th Cir.1985).
. Id. at 920. The Lofton court noted that the defendant failed to object to the jury instructions in that case, "despite ample opportunity,” but concluded, nevertheless, that the federal district court committed "plain error” by failing to instruct the jury regarding her heat-of-passion defense and the Government’s duty to disprove it. Id. at 922.
. 869 F.2d 1401 (10th Cir.1989), cert. granted and judgment vacated on another ground by Saffle v. Davis, 494 U.S. 1050, 110 S.Ct. 1516, 108 L.Ed.2d 756 (1990), on remand, Davis v. Maynard, 911 F.2d 415 (10th Cir.1990).
. The court noted that in this kind of collateral attack on a state court judgment, the question is whether the challenged instruction " 'so infected the entire trial that the resulting conviction violates due process,’ not merely whether 'the in*939struction is undesirable, erroneous, or even "universally condemned.” ’ ” Id. at 1405 (all citations omitted).
. Id. at 1404. The Davis court questioned whether the trial court’s decision to instruct on heat-of-passion manslaughter was even warranted, under the facts of that case. See id. at 1406.
. Id. at 1406 (emphasis added). The instructions in Davis defined first-degree manslaughter as a homicide "perpetrated without a design to effect death.” The jury was instructed that in order to convict the defendant of heat-of-passion manslaughter, the passion "must have existed to such a degree as would naturally destroy the sway of reason and render the mind incapable of cool reflection, and thus exclude malice aforethought.” In addition, the jury was specifically instructed that "[mjalice and heat of passion cannot co-exist.” Id. at 1405.
. Id. at 1406-07. Thus the Davis court concluded that where heat of passion is not "squarely raised" as a defense and where the jury’s instructions define "malice” and "heat of passion” such that they cannot co-exist, "the jury need not be instructed specifically that the prosecution must prove the absence of heat of passion. ...” Id. at 1407.
. 1993 OK CR 6, 845 P.2d 896.
. Id. at ¶ 18, 845 P.2d at 899. While McCormick admitted killing the victim, he maintained that he "lacked the malice aforethought necessary to sustain a conviction for murder because he was acting under the 'heat of passion’ at the time." Id. at ¶ 18, 845 P.2d at 899-900.
. Id. at ¶ 16, 845 P.2d at 899. McCormick proffered the following specific instruction at his trial:
[Y]ou are instructed that the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in the heat of passion before you could convict him of First Degree Murder. If the State failed to prove beyond a reasonable doubt that the Defendant did not act in the heat of passion, then you cannot convict the Defendant of First Degree Murder, but must consider whether the Defendant is guilty of the lesser included offense of First Degree Manslaughter.
Id.
. Id. at ¶28, 845 P.2d at 901 (finding that quoted instruction "would not have been inappropriate in this instance").
. Id. at ¶ 26, 845 P.2d at 901.
. Id. at ¶ 26, 845 P.2d at 901. The McCormick jury, like the Davis juiy, was instructed that in order to convict the defendant of manslaughter, the jury had to find that the killing was "perpetrated without a design to effect death,” while a first-degree murder conviction required a finding that the defendant acted with "a deliberate intention to take away the life of a human being.” Id. at ¶¶ 23-24, 845 P.2d at 900.
. It should be noted, however, that the McCormick instructions were much less explicit than *940the Davis instructions, which actually stated that “[m]alice and heat of passion cannot co-exist.”
. 2001 OK CR 5, 21 P.3d 1047.
. Not surprisingly, Hogan struggles to distinguish his case from Black, since the defendant in that appeal did not prevail. Hence Hogan emphasizes that the trial court did not use all of the appropriate uniform instructions in instructing his jury. Hogan is correct that the trial court should have used OUJI-CR2d 10-24 to instruct his jury regarding its consideration of first-degree murder in relation to the lesser offense of first-degree manslaughter. Instead, the court’s Instruction No. 13 combined various portions of uniform instructions 10-13, 10-24, and 4-66. And in Instruction No. 14, the court modified the former OUJI-CR2d 10-27, to specifically inform the jury that it was "not required to determine unanimously that the defendant [is] not guilty of the crime charged before you may consider a lesser included offense," consistent with this Court’s decision in Graham v. State, 2001 OK CR 18, 27 P.3d 1026. (In 2003, OUJI-CR2d 10-27, as modified in accord with Graham, was incorporated into the current version of OUJI-CR2d 10-24.)
On the other hand, the trial court did use the appropriate uniform instructions for defining first-degree murder and heat-of-passion manslaughter, as well as the all the key elements and terms within these offenses, namely, OUJI-CR2d 4-61, 4-62, 4-63, 4-95, 4-97, 4-98, 4-99, 4-100, and 4-101. Although Hogan argues that the order in which the instructions were presented was confusing, he cannot point to any specific issue upon which the instructions were incomplete or inconsistent with the law in effect at the time. In fact, Hogan acknowledges that the issue about which he is actually appealing, i.e., the failure to instruct his jury regarding its consideration of heat-of-passion manslaughter as an affirmative defense to first-degree murder, was not then and is not now contained in any uniform instruction.
While I agree that it is almost always the better and more prudent approach to instruct according to our uniform instructions, I conclude that the trial court's instructions were not inconsistent with Oldahoma law in effect at the time, nor did they prejudice Hogan in this regard. The court’s modification of the uniform instructions had no impact upon Hogan’s actual challenge within Proposition I. Hence the majority's notation that the now-challenged instructions were "based largely on instructions [Hogan] proposed" and its subsequent invocation of the "invited error" doctrine both turn out to be entirely irrelevant. See Majority Opinion, pp. 923, 925. Properly understood, Hogan's Proposition I claim is indeed an exact parallel of the claim made in Black. We should use this opportunity to reconsider Black and resolve this important issue correctly.
. Although I did not join the Court's opinion in Black, I acknowledge that I did concur in result.
. Black, 2001 OK CR 5, ¶ 42, 21 P.3d at 1065.
. See id. at ¶ 47, 21 P.3d at 1066 ("Nowhere in the instructions was the jury advised that heat of passion manslaughter was Appellant's defense or that the State had the burden to disprove heat of passion beyond a reasonable doubt.”). Thus the instructions given in Black's trial paralleled those given in Hogan's retrial; and since Black failed to object to the instructions regarding heat-of-passion manslaughter, we reviewed his claims only for plain error. Id. at ¶ 41, 21 P.3d at 1065.
. Black also asserted that his jury should have been instructed that manslaughter should be considered "in tandem” with the murder charge. Id. at ¶ 41, 21 P.3d at 1064.
. Id. at ¶ 39, 21 P.3d at 1064 (citing cases with contrary holdings on this issue).
. Id. at ¶ 40, 21 P.3d at 1064. This language comes directly from the first-degree manslaughter statute. See 21 O.S.2001, § 711(2) (defining heat-of-passion manslaughter as a homicide "perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon ...”). Nevertheless, our current uniform instruction defining the elements of manslaughter, unlike the instructions in Davis and McCormick, does not contain any language about lack of a design to kill. See OUJI-CR2d 4-95 (2000 Supp.).
. See 2001 OK CR 5, ¶40, 21 P.3d at 1064 (citing former OUJI-CR2d 4-96). This instruction, with the same five elements, has since been incorporated into OUJI-CR2d 4-95. See OUJI-CR2d 4-95 (Supp.2000). Hogan’s jury was instructed according to this uniform instruction, with these same five elements. Although none of the cases discussed herein involves a first-degree manslaughter that was perpetrated "in a cruel and unusual manner,” rather than "by means of a dangerous weapon," this crime is also covered by the current version of OUJI-CR2d 4-95 (which contains alternative language for such cases) and by the analysis I propose herein.
. See 2001 OK CR 5, ¶ 40, 21 P.3d at 1064.
. See id. at ¶ 47, 20 P.3d at 1066-67.
. Id. at ¶ 47, 20 P.3d at 1066.
. See OUJI-CR2d 4-99 (all emphasis added). It should be noted that this language is exactly the same as the language used in the original version of this State’s uniform criminal juiy instructions, in 1981. See OUJI-CR2d 458 (Manslaughter in the First Degree — Passion Defined).
. As quoted supra by today’s majority opinion, the Black opinion asserted as follows:
Because heat of passion requires the defendant to act on the force of a strong emotion following adequate provocation that would naturally affect the ability to reason and render the mind incapable of cool reflection, i.e., not with a deliberate intent pre-formed, the Oklahoma definitions of malice and heat of passion show they cannot co-exist. Although the instructions in the instant case do not specifically state these mental states cannot co-exist as in Davis, the definitions employed to define the mental states of murder and heat of passion manslaughter sufficiently informed the jury that the differing mens rea elements were mutually exclusive.
Id. at ¶ 47, 21 P.3d at 1066-67.
. See OUJI-CR2d 4-99 (quoted supra in text).
. In footnote 13, today's majority opinion acknowledges that "[ajcting in the heat of passion need not overcome the killer's reason or destroy free exercise of choice.” Hence today’s majority opinion appears to agree that a defendant can properly be convicted of heat-of-passion manslaughter even though he had a deliberate intent to kill his victim. Thus the majority opinion appears also to agree that, despite the language of Oklahoma's manslaughter statute, lack of a "design to effect death” is not an element of heat-of-passion manslaughter under current Oklahoma law. This agreement would seem to end our debate, since it was the presence of this very element in heat-of-passion manslaughter that justified tire conclusions in Davis and McComick that the mental states for heat-of-passion manslaughter and first-degree murder were "mutually exclusive.”
In footnote 13, however, today's majority attempts to find a new way to distinguish the mental states required for these two crimes, by discovering a new element in malice-aforethought murder: a “requirement of deliberation.” In essence, footnote 13 attempts to extend the first-degree murder requirement of "deliberate intent" into an additional requirement that the defendant engage in an act of "deliberation” about whether to kill or not. In addition to referring to a "requirement of deliberation,” footnote 13 asserts that "[a] deliberate act is one that requires a cool mind that is capable of reflection.” While some might believe that the State should be required to prove some amount of reflective "deliberation” by a "cool mind” before a person can be convicted of first-degree murder, such a requirement has no basis in the current law of this State, either statutory or decisional; and footnote 13 proffers no authority for its new approach.
As our uniform jury instructions assert, the four elements of first-degree murder in Oklahoma are: 1) the death of a human, 2) which was unlawful, 3) caused by the defendant, and 4) caused with malice aforethought. See OUJI-CR2d 4-61; see also 21 O.S.2001, § 701.7 ("A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being.”). We then define "malice aforethought” as "a deliberate intention to take away the life of a human being.” See OUJI-CR2d 4-62; see also 21 O.S.2001, § 701.7 ("Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.”). Our uniform instructions note that this "deliberate intent to take a human life must be formed before the [homicidal] act," although "[n]o particular length of time is required for formation of this deliberate intent.” See OUJI-CR2d 4-62. And our uniform instructions specifically note that "[t]he intent may have been formed instantly before commission of the act.” Id. Yet the idea that deliberate intent can be formed "instantly before the commission of the act” is inconsistent with the suggestion that cool-minded "deliberation” is required.
Oklahoma law requires that the State establish that the defendant had a "deliberate intent" to kill his or her victim. Oklahoma law does not require (and never has required) that the defendant go through some kind of reflective decision-making process, i.e., "deliberation,” before killing the victim. In fact, such a requirement would seem to go beyond even the traditional concept of "premeditation” that this State (and this Court) has consciously declined to require when it comes to defining the elements of first-degree murder. We simply require that the killing be done deliberately, meaning, in essence, "on purpose.” Deliberation is not required.
. Hence I agree with this Court's jurisprudence that lack of a design to effect death is not an element of heat-of-passion manslaughter and with the decision by the drafters of our uniform instructions not to include such a lack of intent as an element of heat-of-passion manslaughter ... despite the statutory language of 21 O.S. 2001, § 711(2).
. In Morgan v. State, 1975 OK CR 89, ¶4, 536 P.2d 952, 954, this Court emphasized that heat-of-passion manslaughter occupies "a midway position between self-defense and murder.” The Court noted that with self-defense "the blow is excused, because necessary to save the life of the person striking it, or to prevent grievous bodily harm; while in manslaughter there is no such necessity, and the blow is only partially excused, because given in the heat of passion." Id. at ¶ 5, 536 P.2d at 954 (quoting Miller, Criminal Law, § 92). As we recently noted in McHam v. State, 2005 OK CR 28, ¶ 14 n. 3, 126 P.3d 662, 668 n. 3, Morgan was subsequently overruled in Walton v. State, 1987 OK CR 227, ¶¶ 7-9 744 P.2d 977, 978-79. As McHam recognized, however, Walton overruled Morgan "only insofar as [Morgan] had been interpreted to hold that in every prosecution for first-degree, premeditated murder, if self-defense has been raised, the trial court's failure to instruct on heat-of-passion manslaughter is per se reversible error." McHam, 2005 OK CR 28, ¶ 14 n. 3, 126 P.3d at 668 n. 3 (all emphasis in McHam) (citing Walton). This Court’s McHam opinion specifically refers to the Morgan discussion of the relationship between self-defense and heat-of-passion manslaughter (quoted herein) as "an insightful discussion on this issue.” Id.
. 2001 OKCR5, ¶48, 21 P.3d at 1067.
. Id. at ¶ 48 n. 17, 21 P.3d at 1067 n. 17.
. See Majority Opinion, p. 925 n. 14 (agreeing with Black on this issue).
. The analysis and instruction I am offering would apply only to a defendant who actually relies upon heat-of-passion manslaughter as his defense, i.e., to a defendant who does not contest the fact that he killed the victim, but who maintains that the killing constituted first-degree manslaughter. While such a defendant could also logically assert that the killing was in self-defense (if there - was some evidence to support this claim), a defendant who does not acknowledge responsibility for the killing would not be entitled to an instruction on this defense — though he or she could be entitled to an instruction on manslaughter as a lesser offense.
. "Duress” is limited in this context to a reasonable belief that one is in "imminent danger of death or great bodily harm from another.” See OUJI-CR2d 8-20.
. Such a defense could also be described as an "imperfect defense” or "mitigating defense.” See Morgan, 1975 OK CR 89, ¶ 5, 536 P.2d at 954 (contrasting "perfect defense” of self-defense with "imperfect defense” of voluntary manslaughter); OUJI-CR2d 8-36 (Committee Comments) (contrasting "exculpating defense” of insanity with "mitigating defense” of voluntary intoxication).
. In a case involving multiple victims, the name of the victim (or victims) about which some evidence supported the heat-of-passion defense could be inserted for clarification purposes.
. In cases where this instruction was given, the jury would not be instructed under the lesser included offense instructions, namely, OUJI-CR2d 10-23 and 10-24.
. Although the decisions of the Tenth Circuit Court of Appeals are not binding upon this Court, they are instructive and well-reasoned on this issue.
. See OUJI-CR2d 9-15.
. See Majority Opinion, p. 926 (citation omitted).
. See OUJI-CR2d 9-15 (defining "exculpatory statement” as "a statement by the defendant that tends to clear a defendant from alleged guilt, ... which, if true, would entitle him/her to an acquittal”).
. See Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir.1999) ("[T]he Oklahoma Court of Criminal Appeals engaged in the wrong inquiry— asking on rehearing whether Hogan’s self-defense instruction constituted a lesser included instruction, or initially whether the evidence was sufficient to support conviction on the greater charger, but never engaging in the correct inquiry as to whether Hogan presented sufficient evidence to warrant a first-degree manslaughter instruction.” (emphasis in original)). I dissented from this Court’s original Hogan decision on this basis. See Hogan, 877 P.2d at 1166-67 (Chapel, J., dissenting) (“It may be that the jury would have found Hogan to be guilty of First Degree Murder even if they had been provided with a manslaughter instruction. However, that is not the test. The test is whether there is some evidence reasonably suggesting that the lesser-included offense instructions are warranted. Hogan’s confession clearly provides some evidence of manslaughter.” (emphasis in original)).
.See 12 O.S.2001, § 2504(B) ("An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.”).
. 476 U.S. 147, 106 S.Ct 1749, 90 L.Ed.2d 123 (1986).
. Id. at 156-57, 106 S.Ct. at 1756 (where record evidence supported non-found aggravating circumstance(s), defendant had not been "acquitted” of death penalty, for Double Jeopardy purposes, and State could re-pursue death penalty).
. 1992 OK CR 62, 840 P.2d 627.
. Id. at ¶71, 840 P.2d at 641.
. Id. at ¶ 85, 840 P.2d at 643. The Crawford Court relied upon 21 O.S.Supp.1985, § 701.13 (governing this Court’s review of death sentences), and 21 O.S.Supp.1989, § 701.10a (governing sentencing proceedings on remand after death sentence has been overturned). See 1992 OK CR 62, ¶ 71, 840 P.2d at 641. Section 701.13 remains exactly the same today. See 21 O.S.2001, § 701.13. Section 701.10a was amended in 1993, to clearly establish a defendant's right to jury sentencing in any resentencing, as long as the original sentencing was by a jury. See 21 O.S.2001, § 701.101a(1). Under the prior provision, the defendant had no right to a jury sentencing if the death penalty was not at issue on resentencing. See 21 O.S.Supp.1989, § 701.10a(1)(a). Hence there has been no change in our statutory law that can explain this Court’s subsequent decision to reject the approach of Crawford.
. 1995 OK CR 20, 893 P.2d 521.
. 1995 OK CR 72, 909 P.2d 74.
. 1995 OK CR 20, ¶¶ 54-62, 893 P.2d at 533-36.
. Id. at ¶ 64, 893 P.2d at 536-37.
. Id. at ¶ 53, 893 P.2d at 533.
. 1995 OK CR 72, ¶26, 909 P.2d at 83 ("[W]e find the evidence simply does not support the jury's finding that the murder of Mrs. Cheney was committed in an especially heinous, atrocious or cruel manner. Accordingly, Cheney’s sentence of death must be modified to life imprisonment without the possibility of parole.").
. Poland was decided on May 5, 1986; Cheney was decided on December 8, 1995.
. On the other hand, we have consistently allowed the State to seek the death penalty upon resentencing when a death sentence is reversed for capital-stage errors not involving insufficient evidence.
. 1996 OKCR25, 919 P.2d 1120.
. Id. at ¶ 12, 919 P.2d at 1125 (reversing "great risk of death to more than one person” aggravator).
. Id. at ¶¶ 14-18, 919 P.2d at 1125-27. It should be noted that prior to the Salazar decision, in a case decided eleven days after Cheney, we did cite Poland approvingly. In Romano v. State, 1995 OK CR 74, ¶¶ 66-68, 909 P.2d 92, 117-18, we rejected the defendant’s claim that State should have been collaterally estopped from presenting evidence regarding an aggravator rejected by his original jury, where his original capital conviction was reversed for failure to sever from his co-defendant. This Court rejected Romano’s claim as "moot,” since the second jury, like the first, "rejected the aggravating circumstance of 'continuing threat.’ " Id. at ¶ 68, 909 P.2d at 118. Nevertheless, we did cite Poland approvingly within our discussion of Romano’s claim. See id. at ¶ 67, 909 P.2d at 118.
. This Court wrote:
We interpret Poland to hold that if either the trial court or a reviewing court finds that, after removal of any infirm factors, the residual evidence offered by the state at the sentencing proceeding will not support a death sentence, then the defendant has been acquitted of the death penalty and jeopardy precludes any further sentencing proceedings seeking a death verdict. However, if there is evidence which supports other statutory aggravating circumstances, the case may he remanded and a death verdict may be sought....
Salazar, 1996 OK CR 25, ¶ 18, 919 P.2d 1120, 1127. We then concluded that evidence in the record supported two aggravating circumstances that Salazar's resentencing jury had declined to find. Hence we remanded the case for a further resentencing, in which the death penalty could be pursued. Id. at ¶ 19, 919 P.2d at 1127.
. 2001 OK CR 34, ¶¶ 108-10, 37 P.3d 908, 938 (citing and following both Poland and Salazar).
. See Salazar v. State, 1998 OK CR 70, ¶ 7, 973 P.2d 315, 321 (noting that despite Crawford, Perry, and Cheney, "[t]he Court’s analysis and application of Poland in Salazar ... represents this Court's current position on this issue”).
. 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).
. Id. at 446, 101 S.Ct. at 1862 (citation omitted). In Bullington, the Supreme Court held that Double Jeopardy protected a defendant who had been "acquitted” of the death penalty by a jury from having to face it again upon retrial: "Because the sentencing proceeding at petitioner's first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury is also available to him, with respect to the death penalty, at his retrial." Id. The Court cited North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as articulating the idea of having "the slate wiped clean" on a retrial, such that a defendant would be subject to any legally authorized punishment upon retrial. 451 U.S. at 441-42, 101 S.Ct. at 1859-60 (quoting Pearce, 395 U.S. at 721, 89 S.Ct. at 2078). The Bullington Court emphasized, however, that "the ‘clean slate' rationale recognized in Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case.” Id. at 443, 101 S.Ct. at 1860 (emphasis added). Hence the Bullington Court concluded: "Having received 'one fair opportunity to offer whatever proof it could assemble,’ ... the State is not entitled to another.” Id. at 446, 101 S.Ct. at 1862 (quoting Burks v. U.S., 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978)). In Arizona v. Rumsey, 467 U.S. 203, 209-12, 104 S.Ct. 2305, 2309-11, 81 L.Ed.2d 164 (1984), the Supreme Court followed Bullington and held that even where an "acquittal on the death penalty” is based upon a trial court’s misconstruction of a statute, Double Jeopardy forbids further pursuit of the death penalty upon remand of the case.
. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
. Ring, 536 U.S. at 609, 122 S.Ct. at 2443 (quoting and citing Apprendi).
. The decision in Ring was 7-2, with six justices joining the majority opinion and Justice Breyer concurring in the judgment. Only Justices O’Connor and Rehnquist dissented.
. 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003).
. Id. at 109, 123 S.Ct. at 738.
. Id. at 116, 123 S.Ct. at 742.
. Hence a hung jury in either the guilt stage or the sentencing stage of a trial generally results in a "do over” for the State.
. I am not counting Justices O'Connor and Rehnquist in this tally; nor am I making any prediction about how the Court’s newest justices will vote.
. Scalia's opinion was joined, m toto, by Justices Rehnquist and Thomas. Justices O’Connor and Kennedy joined all but Part III of the opinion. Justice Ginsburg wrote a dissenting opinion, joined by Justices Stevens, Souter, and Breyer.
. 537 U.S. at 108-09, 123 S.Ct. at 738. It should be noted that Poland, unlike Sattazahn, did not involve a hung jury.
. 537 U.S. at 110, 123 S.Ct. at 739 (emphasis in original).
. Id. (emphasis in original)
. Id. at 110-11, 123 S.Ct. at 739.
. Id. at 111, 123 S.Ct. at 739.
. Section III notes that in Ring, the Court held “that the Sixth Amendment requires that a jury, and not a judge, find the existence of any aggravating circumstances, and that they be found, not by a mere preponderance of the evidence, but beyond a reasonable doubt." Id. (citing Ring).
. Id. at 111-12, 123 S.Ct. at 739-40.
. Id. at 112, 123 S.Ct. at 740.
.Id. It could be argued that Oklahoma’s current, capital-stage verdict forms — which instruct juries to simply check any aggravating circumstance(s) upon which the jurors unanimously agree — do not allow us to determine whether a jury’s failure to find a particular aggravator was a unanimous rejection of that aggravator or not. Yet this Court has consistently described verdicts where an aggravator is unchecked as a "rejection” of the unchecked aggravator(s). See, e.g., Davis v. State, 2004 OK CR 36, ¶ 47 n. 8, 103 P.3d 70, 83 n. 8; Dodd v. State, 2004 OK CR 31, ¶ 91, ¶ 102, 100 P.3d 1017, 1044, 1047; Lott v. State, 2004 OK CR 27, ¶ 132, ¶ 176, 98 P.3d 318, 351, 359; Johnson v. State, 2004 OK CR 25, ¶ 3 n. 7, 95 P.3d 1099, 1101 n. 7; Harris v. State, 2004 OK CR 1, ¶ 60, 84 P.3d 731, 753; Alverson v. State, 1999 OK CR21, ¶30, 983 P.2d 498, 511; Patton v. State, 1998 OK CR 66, ¶ 110, 973 P.2d 270, 299. And in no case has this Court interpreted a jury’s failure to find an aggravator as a “hung jury,” since without specific notice from a jury that it is "deadlocked,” we have no basis for assuming that such is the case. I conclude that the most reasonable way to deal with an Oklahoma jury’s failure to check an aggravating circumstance, at least in the short term, is to treat it as a unanimous rejection of that aggravator, which operates as an "acquittal” on that aggra-vator. Where it is entirely possible that the jury unanimously rejected the unchecked aggravator, I maintain that it violates Double Jeopardy to allow the State to re-pursue that aggravator in a subsequent retrial or resentencing.
. Id. at 118, 123 S.Ct. at 743 (Ginsburg, J., dissenting).
. Id. at 126 n. 6, 123 S.Ct. at 747 n. 6 (emphasis in original) (citing Ring and Bullington ).
. Poland, 476 U.S. at 155, 106 S.Ct. at 1755.
. Id. at 155-56, 106 S.Ct. at 1755.
. And a capital defendant's guilt-stage murder conviction constitutes a “lesser included offense” in relation to the capital-stage determination regarding the "greater offense” of murder-plus-one-or-more-aggravators.
. - U.S. -, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006).
. Id. at 892 (“An invalidated sentencing factor ... will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” (emphasis in original) (footnote omitted)). The Sanders case sought to change the different appellate rules governing "weighing States,” such as Oklahoma, in which the jury is limited in its decision about whether to impose the death penalty to the specific aggravating circumstances (or "eligibility factors”) found as part of the jury’s eligibility determination, and non-weighing states, in which the jury’s ultimate determination about whether to impose the death penalty is not limited in this way. Id. at 889-91.