37 P.3d 908 (2001) 2001 OK CR 34 Earl Alexander FREDERICK, Sr., Appellant, v. STATE of Oklahoma, Appellee. No. D-1998-293. Court of Criminal Appeals of Oklahoma. November 21, 2001. Robert H. Macy, District Attorney, Oklahoma County, Sandy Elliott, Susan Caswell, Assistant District Attorneys, Oklahoma City, OK, Attorneys for the State. Catherine Hammersten, Bert Richard, Assistant Public Defenders, Oklahoma County, Oklahoma City, OK, Attorneys for Defendant. Robert A. Ravitz, Public Defender of Oklahoma County, Wendell B. Sutton, Assistant Public Defender, Oklahoma City, OK, Attorneys for Appellant. W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee. *919 OPINION LILE, Judge: ถ 1 In 1992, Earl Alexander Frederick, Sr., Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CF-90-734, was convicted of Murder in the First Degree, and was sentenced to death. On August 30, 1995, that conviction was reversed and remanded for a new trial. See Frederick v. State, 1995 OK CR 44, ถ 31, 902 P.2d 1092, 1099. ถ 2 The Honorable Virgil C. Black, District Judge, conducted the retrial before a jury from February 23 through March 6, 1998. Appellant was again found guilty of Murder in the First Degree, 21 O.S.Supp.1989, ง 701.7(A) (Malice Aforethought), and punishment was again buchananheather@example.com. Two statutory aggravating circumstances were found to exist beyond a reasonable doubt: 1. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and 2. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. ถ 3 The court imposed the death sentence on March 13, 1998,[1] in accordance with the jury verdict. Frederick is before this Court on direct appeal from this second conviction and sentence. FACTS ถ 4 Brad Beck was murdered by Frederick on November 11, 1989, in Spencer, Oklahoma. Mr. Beck was partially paralyzed and required a cane for walking. Mr. Beck was house-sitting in Spencer for his cousin, Terri Smith, who was visiting her mother in New Mexico. Frederick, who used many aliases, had been staying with Beck from approximately November 7 through November 11, 1989, going by the name "Jeff." ถ 5 Ms. Smith usually called Beck daily. She had expressed concern that this stranger, Jeff, whom she had never met, had moved into her house while she was gone. When she talked to Beck, for the last time, on *920 Saturday morning, November 11, he told her he would ask Jeff to leave. ถ 6 Frederick brutally clubbed Beck to death that day and drove his body to a nearby field. He ransacked the house, pulling out drawers looking for valuables. Frederick then drove Beck's pickup some 300 miles to Dumas, Texas, north of Amarillo, where he listed Beck's pickup on a motel registration and used another alias, "Larry Davis." He took with him numerous items stolen from Beck, Terri Smith, and Michael Don Smith. ถ 7 Three days later, Frederick bludgeoned and shot to death an acquaintance, Mr. Shirley Fox (a 76-year-old disabled man), in Texline, Texas. Texline is on the west edge of the Texas panhandle, nine miles from Clayton, New Mexico, where Frederick had lived for the preceding four years. Frederick parked Beck's pickup in a row of old cars at Fox's house after removing the tag.[2] He transferred the property he had stolen from Beck and the Smiths into Mr. Fox's blue 1975 Chevrolet Impala. He ransacked Fox's house, pulling out drawers as he had in Oklahoma, and took two shotguns (including the one he had just used to shoot Fox), a .22 rifle, coin collections, jewelry, and other property. ถ 8 That evening, Frederick stayed at a motel in Dalhart, Texas, about midway between Texline and Dumas, using another alias, "R.J. Collier," and listed Mr. Fox's Chevy on the motel registration. The next day he drove to Amarillo in the stolen car with the stolen property. ถ 9 Mr. Fox's body was found in his home November 16. He had been beaten with a claw hammer that was found nearby. One of his ears had been mangled and partially torn off by the force of a blow to his head. One of his fingers was almost severed. He had also been shot with his own shotgun at close range. Frederick later told officers he had sold the guns and coin sets in Amarillo for $200. When the shotgun was recovered in Amarillo, it still had Mr. Fox's dried, splattered blood on it. When Beck's pickup was found abandoned at Fox's house November 16, blood smears were found inside the cab that were the same as Beck's blood type. The jury heard testimony in the first stage of the trial that Mr. Fox's car was stolen, but they were not told until the second stage that he was murdered. ถ 10 Beck's mother reported him missing on November 17, 1989. An officer went to Terri Smith's house to look for him, but he was not found. On November 25, officers with the Sheriff's Office crime lab were dispatched to the Smith residence. Captain James Rouse testified that drawers were open and that there was dried blood on the floor furnace grating and on the inside of the front door facing. ถ 11 Late on November 19, police in Amarillo, Texas, spotted a woman driving Mr. Fox's car. Patrolman Ward pulled her over, and she told him she had borrowed the car from a man she had met in a bar a couple of days earlier named "R.J." She gave the police a description of R.J. and told them he was inside the Unique Club. They found a person at that club who matched the detailed description she had given, and he was arrested. "R.J." turned out to be Frederick. He gave the officers his correct name, Earl Frederick, Sr. ถ 12 When they drove past Fox's car, Frederick initiated a conversation by asking "if the girls that he had loaned his vehicle to had gotten busted for speeding or something?" Officer Oakley then asked Frederick if that was his car, and "He said that it was." Frederick then volunteered that "he had bought the car a few nights earlier." After Frederick was advised of his rights at the police station, he further stated he had bought the car for $300 from four persons in Cactus, Texas. He gave consent to search his motel room, and the police found numerous items stolen from Smith's house including jewelry, Beck's war medals, and a birth *921 certificate belonging to Terri's brother, Michael Don Smith. ถ 13 The Dallam County District Attorney Investigator, Tim Bell, interviewed Frederick on November 20. He said he had lived in the area near Texline at Clayton, New Mexico. He had married under the name R.J. Forster[3] and had lived there for four years with his wife Nadine Forster. He admitted that he knew Beck, but at first denied that he had killed him. He told Bell that he and Beck had planned to drive Beck's pickup to New Mexico. He said they had changed their plans, and that Beck told him to go on in the pickup, and that he, Beck, was just going to hitchhike to Mexico and "drop off the face of the earth." Frederick admitted he had driven Beck's pickup from Oklahoma City to Dumas, Texline, and Clayton, but claimed Beck had given him the truck. He repeatedly said, if you want to talk to Beck, you will have to go to old Mexico. ถ 14 Frederick signed a statement in which he said he drove Beck's pickup from Clayton to a bar in Texline on November 14, where he met a man named Paul Encenia. He denied that he personally had killed Fox, but claimed he was present while Encenia had killed Fox with a hammer. He admitted that he had stolen Fox's car, guns, and coins. ถ 15 The next day, November 21, in Dallam County, Frederick was again advised of his rights and again waived those rights. Paul Encenia had been brought in for questioning based on Frederick's accusation that he killed Mr. Fox. When Frederick and Investigator Bell passed by Encenia in the jail, Encenia confronted Frederick and said, "Hey man, why are you telling all those lies on me. I haven't done nothing." Frederick did not respond to the accusation at that time. ถ 16 Later that day, Frederick had the jailer notify Officer Bell to return to the jail. This time he told Bell, "My name is Larry Davis, and I need to talk to you quick, Jeff doesn't let me out very long." He added: "I'm an ex-policeman, and I'm the only one that can tell the truth." ถ 17 Bell further testified: "He [Frederick] told me Earl had lied to me when I had talked to him earlier about the old man. He said Paul Encenia had nothing to do with the old man. In fact he [Paul] wasn't even there and Jeff was the one that did it all and Jeff was the one that killed the old man. "He also told me Jeff was the one who made Larry and Earl and R.J. do things they didn't want to do. And then he went on to tell me about Jeff had killed Bradford Beck and that the body had been dumped in an open field near Spencer, Oklahoma. And I asked him, well, did you bury the body, did you cover the body, or what? And he said, `[No], it's in an open field near Spencer, Oklahoma.'" ถ 18 A week later on November 28, Frederick met his appointed Texas lawyer, David Green. He displayed his same repertoire of characters that he had displayed for Officer Bell. Larry Davis however, was not portrayed as the same ex-police officer, the role he had played for Officer Bell, but was now portrayed as a crying 13-year-old boy, who was afraid of the situation and didn't know where he was. Frederick never displayed these personalities to Green again, and for the next year in the Dallam County Jail, he was just "Earl" to his lawyer. ถ 19 Deputy Scott testified that Frederick said he used the different aliases โ Larry Davis, R.J. Forster, and Collier โ "in order to avoid confrontation from the law." ถ 20 Two months later, Beck's partially decomposed and mummified corpse was found still lying face up, uncovered, and unburied in an open field in Spencer, Oklahoma, near Smith's house, corroborating the description of the murder given by Frederick. Beck's friends and family testified that because of his paralysis, he could not have walked more than a few feet without his cane and could not have traveled to the field alone without his cane and his pickup. The autopsy revealed that Beck's skull had been crushed in three places by trauma from a blunt instrument. *922 ถ 21 Several witnesses identified Frederick at trial as the "Jeff" that had stayed several days at Smith's house with Beck up until November 11, 1989, when Beck disappeared. One witness had even spent the night there twice with Jeff and Beck. There was testimony that Jeff and Beck drank wine and smoked marijuana the week before, and on the morning of, November 11, 1989, but there was no evidence that either was intoxicated. ถ 22 Later, in 1997, Appellant claimed to his psychiatrist, Dr. Coons, that he could not remember anything that had happened from 1985 through November 1989, including his second marriage [the marriage to Nadine Forster] or anything about the two murders. Frederick did not testify at his trial. ถ 23 Further facts will be mentioned when relevant to particular propositions of error. COMPETENCY TO STAND TRIAL ถ 24 Appellant has subdivided his proposition on competency into Subpropositions 5(B), 5(C), 5(D), 5(E), and 5(F). Number 5(A) is not a subproposition, but is entitled "Procedural Background and Competency Evidence." We will discuss 5(F) later under the heading, "First Stage Issues." ถ 25 In Subproposition 5(B) Appellant's counsel on appeal claims Appellant and his trial attorneys had no right to "waive" jury for his competency trial held in 1997. Judge Black commented at the time, "And now, although there's an allegation that you're incompetent, we are back for you to waive your right to a jury trial, kind of a catch 22. . . . If you're competent, you can waive your right, if you're incompetent you really can't." Nonetheless, Appellant and his trial counsel did not want a jury trial on competency and filed a written withdrawal of their request for jury trial. It was held as a bench trial on July 10, 1997. ถ 26 Appellant argues that once a doubt about a defendant's competency had been found by the court, he would no longer be competent to "waive" jury for the competency trial. However, no examination and therefore no post-examination competency hearing would be required unless the court first makes the threshold finding that there is a doubt as to the defendant's present competency. Hammon v. State, 2000 OK CR 7, ถ 48, 999 P.2d 1082, 1094, cert. denied, 531 U.S. 1090, 121 S. Ct. 812, 148 L. Ed. 2d 697 (2001). If Appellant's argument were correct, every post-examination competency hearing would have to be held as a jury trial, contrary to the statute that provides that a jury trial shall only be provided upon demand. 22 O.S.Supp.1996, ง 1175.4(B). ถ 27 The right to a jury trial on guilt or innocence in a felony criminal case is constitutional, and the trial must be held as a jury trial unless properly waived. Obviously, however, the constitutional right to a jury trial does not apply to every pre-trial hearing in a criminal case. We have held that the right to a jury trial on competency is only statutory, not constitutional. Miller v. State, 1988 OK CR 29, ถ 7-11, 751 P.2d 733, 738, quoted in Hammon v. State, 1995 OK CR 33, ถถ 44-45, 898 P.2d 1287, 1298 ("[T]here is no right under the Sixth and Fourteenth Amendments of the United States Constitution, or under Article II, ง 19 or 20, of the Oklahoma Constitution, to a jury trial in a competency hearing. The right to have a jury hear the question of the accused's competency is statutory and must be demanded.") ถ 28 In Oklahoma, a hearing on competency in a criminal case is tried to the court unless a jury trial is demanded. 22 O.S. Supp.1997, ง 1175.4. If no demand for jury trial is made, the competency hearing, by statute, is tried to the judge, not to a jury. Appellant and his counsel in 1997 first demanded, and then properly withdrew, a demand for a jury trial for the post-examination competency hearing. It was properly held before the judge. This subproposition is denied. ถ 29 In Subproposition 5(C)(1) Appellant complains that he received a "fundamentally unfair competency trial." First, he says he was not given "adequate" notice of the substance of Mary Frederick's testimony, citing inter alia, 22 O.S.Supp.1996, ง 2002(A)(1), which says: *923 "1. Upon request of the defense, the state shall be required to disclose the following: a. the names and addresses of witnesses which the state intends to call at trial, together with their relevant, written or recorded statement, if any, or if none, significant summaries of any oral statement. . . ." (Emphasis added.) This statute only mandates discovery of witnesses who will be called at the trial on the merits, not at post-examination competency hearings. Even though not required, a summary of oral statement of the witness was provided in this case. A summary, by definition, cannot be expected to be a verbatim script of a witness's testimony. There is no error here. ถ 30 Appellant in Subproposition 5(C)(2) also cites eight references, by range of page numbers only, between pages 47 and 65 of the competency hearing transcript, where trial counsel objected to questions or moved to strike answers during Mary Frederick's testimony. Appellant complains that these defense motions "based on relevancy, hearsay, leading, lack of a proper foundation, and, taken in context, other crime evidence" were improperly overruled by the trial judge, and that "Appellant was consequently denied his right to confront the witnesses against him." Actually two of trial counsel's objections in the cited pages were "lack of notice," which we have already discussed. Appellant then cites several sections of the Evidence Code, pertaining to such principles as relevancy and hearsay exceptions, and cites several cases, but does not connect the citations with specific allegations of error and makes no further argument. "It is necessary for counsel . . . not only to assert error, but to support his contentions by both argument and the citations of authorities." Bowers v. State, 1982 OK CR 103, ถ 17, 648 P.2d 835, 838. We examine for plain error only and find no plain error or improper rulings by the trial court in the cited pages of transcript. ถ 31 We next consider Appellant's Subproposition 5(C)(3). Rather than try to represent it, we quote it in full: "Third, the trial judge [at the 1997 post-examination competency hearing] erroneously believed he lacked the legal authority to order that Mr. Frederick be sent to Eastern State Hospital, or any other appropriate state mental health facility, for further mental evaluation and/or treatment, including memory restoration, pending trial (Comp.[Tr.] 82-90). This was an abuse of discretion. See Walker v. State, [1989 OK CR 65], 780 P.2d 1181, 1183 (Okl.Cr.1989); Okla. Stat. tit. 22 งง 1175.3(D)(1) & (2), 1175.6(A)(2), 1175.7 (Supp.1997)." The statutes cited by Appellant, 22 O.S.Supp. 1987, งง 1175.3 through 1175.7, do not support his position that the court abused its discretion in his case. Section 1175.6 provides that a criminal defendant can be committed to the State Department of Mental Health for treatment only if he is found "incompetent." As the court found Appellant competent, it would have no authority to commit him for treatment. ถ 32 We find that Appellant unfairly characterizes the proceedings reported in the cited pages of the competency hearing transcript. The trial judge did not state his belief. Rather, he asked defense counsel, after the evidence and closing arguments had been concluded, whether there was any way he could postpone his ruling on competency and order Appellant to be sent to the state hospital for treatment of his amnesia, which is what Appellant was asking for. The trial court's ruling denying commitment for treatment was consistent with his finding of competence, was supported by the evidence, and was consistent with our statutes. This subproposition is therefore denied. ถ 33 Subproposition 5(C)(4) in its entirety reads: "Fourth, the trial judge was biased. See Proposition XIII, infra." We will consider this under Proposition Thirteen below. ถ 34 In Subproposition 5(D) Appellant contends that he was incompetent to stand trial in 1998, that the trial court did not consider proper factors in determining competency, and that the determination of competency was clearly erroneous and not "adequately" supported by the evidence. Appellant claims he "presented evidence that proved by a preponderance of the evidence *924 that he was legally incompetent from amnesia, that is, that the amnesia precluded Appellant from effectively assisting in his defense." The report of Appellant's own psychiatrist, Dr. Coons, submitted at the competency hearing, said: "He was cooperative. No depression was noted and his thinking was intact without evidence of psychosis. A number of PTSD symptoms were noted as described above. He was well oriented and appeared of average intelligence." (Emphasis added.) ถ 35 Appellant's sister, Mary Frederick, testified at the competency hearing that he frequently used false identities, which he explained by claiming that he was working as an undercover police officer. Earlier in 1989 Frederick had shown up at Mary's house in Oklahoma and told her he was working undercover in Texas and using the name Ray King. He had a birth certificate, a driver's license, and credit cards in King's name. Frederick appeared to be his normal self. He never claimed to her that he actually was King. He had never claimed nor pretended to her, nor appeared to her to believe, that he actually was any of his undercover identities. ถ 36 We said in Campbell v. State, 1981 OK CR 136, ถ 7, 636 P.2d 352, 355, cert. denied, 460 U.S. 1011, 103 S. Ct. 1250, 75 L. Ed. 2d 479 (1983): "The purpose of the competency trial is to determine whether a defendant has `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational, as well as factual understanding of the proceedings against him.' Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)." (Emphasis added.) We held in Siah v. State, 1992 OK CR 59, ถ 7 & n. 1, 837 P.2d 485, 486 & n. 1: "Appellant cites no case which has held that amnesia, whether due to substance abuse, trauma or a disease, creates per se, lack of competence to stand trial. On the contrary each court which has squarely confronted the issue has found loss of memory regarding events surrounding the alleged crime does not in and of itself create lack of competence to stand trial."1 Footnote 1: "Cases across the country consistently hold loss of memory as to the alleged incident is not per se lack of competence to stand trial." (Citing twelve cases from other states.) (Citations omitted.) ถ 37 We find in Frederick's case, as in Siah, that the present inability to remember the events surrounding the crime does not impair the defendant's rational thought process and therefore is not incompetence. Appellant's Subproposition 5(D) is denied. ถ 38 In Subproposition 5(E) Appellant contends that his trial counsel made an internal office request to the Oklahoma County Public Defender's Office, which request was denied, for funds for memory treatment in a secure, in-patient facility. He claims that he was denied the proper assistance of a psychiatrist at trial because his counsel's own office did not provide him funds for treatment of his amnesia. Appellant cites Oklahoma cases Fitzgerald v. State, 1998 OK CR 68, ถถ 15-30, 972 P.2d 1157, 1164-70; Frederick v. State, 1995 OK CR 44, ถถ 16-26, 902 P.2d 1092, 1095-98; and Washington v. State, 1992 OK CR 43, ถถ 5-12, 16, 836 P.2d 673, 674-677. None of these cases however support his proposition that he is entitled to treatment for his amnesia, or any other mental condition, before he can proceed to trial. He was provided with a psychiatrist at this retrial, and therefore there was no Ake violation. Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). This proposition is denied. VOIR DIRE ISSUES Court Excused Six Prospective Jurors for Cause ถ 39 In Appellant's second proposition of error, he complains that six (6) prospective jurors were excused for cause by the court in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). He claims that Mr. Cunningham, Mr. Cutter, Mr. Dill, Ms. Saner, Mr. Blakely, and Ms. Gross were excused because of their opposition to the death penalty without an adequate examination to determine if they *925 could follow the law and consider the death penalty along with the other punishment options. We have stated in Gilbert v. State, 1997 OK CR 71, ถ 26, 951 P.2d 98, 108, cert. denied, 525 U.S. 890, 119 S. Ct. 207, 142 L. Ed. 2d 170 (1998), and Carter v. State, 1994 OK CR 49, ถ 19, 879 P.2d 1234, 1243-44, cert. denied, 513 U.S. 1172, 115 S. Ct. 1149, 130 L. Ed. 2d 1107 (1995) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841, 851-52 (1985)): "[T]he proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is `whether the juror's views would prevent, or substantially impair, the performance of his duties as a juror in accordance with his instructions and his oath.'" This Court has held that a juror "is only required to be willing to consider all the penalties provided by law and not be irrevocably committed [to one] before the trial has begun." Carter, 1994 OK CR 49, ถ 20, 879 buchananheather@example.com. On review, this Court must look at the entirety of the juror's voir dire to determine if the trial court properly excused the juror for cause. See Castro v. State, 1992 OK CR 80, ถ 14, 844 P.2d 159, 166, cert. denied, 510 U.S. 844, 114 S. Ct. 135, 126 L. Ed. 2d 98 (1993). ถ 40 Prospective jurors Cunningham, Cutter, Dill, Saner, Blakely, and Gross each stated that they could not under any circumstances impose the death penalty. ถ 41 Mr. Cunningham stated that although he did not oppose the death penalty in general, he could not personally impose that punishment. Defense counsel asked, "Can you envision any circumstance where you could look a defendant in the eye and say I voted for capital punishment?" He answered, "No." ถ 42 Mr. Cutter said that, for religious reasons, he could not sentence someone to the death penalty regardless of what information or evidence he had and that nothing could be said by either side that would change his mind. ถ 43 Mr. Dill said, "I wouldn't be willing to impose the death penalty." He said, "Maybe if it was a relative, you know, a relative of mine had been murdered or someone that I loved or cared for, then maybe I could. But in this case, I don't think so. I know I wouldn't." The court asked, "No matter what the evidence is?" Mr. Dill answered, "That's correct." He said he would not be able to follow the instructions to consider all three punishments. ถ 44 Ms. Saner said, "I could not give someone the death penalty." She could not see herself voting for a penalty of death regardless of the evidence, regardless of the situation, under any circumstances. Mr. Blakely said, "I don't believe in the death penalty." He could not envision any situation or circumstance where he would be willing to vote for the death penalty. Ms. Gross could not envision a set of facts and circumstances where she could vote for the death penalty in a case. She was asked, "Under any circumstances?" She answered, "No." She was asked, "No matter what?" She answered, "No." ถ 45 We find from a review of the entire record on voir dire that the trial court properly acted within its discretion in excusing these prospective jurors, and Frederick's second proposition is denied. Court's Refusal to Excuse Two Jurors for Cause ถ 46 Appellant claims in Proposition Three that the trial court improperly refused to excuse for cause two prospective jurors, Fuller and Richardson, thereby depriving him of a fair and impartial jury. ถ 47 First, Frederick challenged prospective juror Fuller for cause at trial and complains on appeal that he should have been excused "because of a lack of citizenship and/or residence." Title 38 O.S.Supp.1997, ง 28(A), provides: "All citizens of the United States, residing in this state, having the qualifications of electors of this state, who are of sound mind and discretion and of good moral character are competent jurors to serve on all grand and petit juries within their counties." *926 ถ 48 The Oklahoma Constitution provides: "[A]ll citizens of the United States, over the age of eighteen (18) years, who are bona fide residents of this state, are qualified electors of this state." See Okla. Const.Art.III, ง 1. Since Appellant does not further claim or establish that Mr. Fuller, a retired officer of the United States Air Force, was not a citizen of the United States, his argument that Fuller should have been removed for "lack of citizenship" fails. ถ 49 Mr. Fuller testified that his wife was an active duty member of the United States Air Force at Tinker Air Force Base and that he and his wife would continue living in Oklahoma indefinitely until his wife got orders from the Air Force to move elsewhere. The Oklahoma Supreme Court in Box v. State Election Board of Okla., 1974 OK 104, ถ 23, 526 P.2d 936, 940, said, "[R]esidence is acquired by actual presence in the state, coupled with the intention to remain there permanently or for an indefinite period." Mr. Fuller was a qualified juror in this case because he was a resident of Oklahoma County, Oklahoma, and intended to remain there for an indefinite period. Appellant used a peremptory challenge to excuse Mr. Fuller, and he therefore did not serve on the jury. ถ 50 Appellant next complains that prospective juror Sharon Richardson should have been excused for cause because she was "in favor of" the death penalty, which she believed was a more appropriate punishment than life or life without parole for first-degree murder. When asked if she could envision any circumstances where a straight life sentence might be an appropriate sentence for murder, she responded, "I don't know that I could. I don't know that I could honestly say that life would be appropriate." She said that she would "lean further toward the death penalty," that the death penalty had a head start, that the death penalty would receive more consideration, and that she was firmly committed to a position that would not give the same consideration to a life sentence. ถ 51 However, Ms. Richardson also stated that she could consider all three options. She said she would not automatically vote for a sentence of death, and she would vote for a life sentence if she thought it was appropriate. She said that although she might "lean toward" the death penalty in a murder case, she would consider all the options. Appellant exercised a peremptory challenge against Ms. Richardson, and therefore she did not actually sit on his jury. The decision to disqualify a prospective juror for cause rests within the sound discretion of the trial court, whose decision will be overturned only where an abuse of discretion exists. Workman v. State, 1991 OK CR 125, ถ 5, 824 P.2d 378, 380, cert. denied, 506 U.S. 890, 113 S. Ct. 258, 121 L. Ed. 2d 189 (1992). The trial court did not abuse its discretion in declining to excuse these two prospective jurors for cause. ถ 52 Appellant, in his reply brief, points out that in a recent first-degree murder case (subsequent to Frederick's 1998 trial and conviction) we said: "[E]ach juror stated he or she could consider all three punishments equally. That is all the law requires." Malicoat v. State, 2000 OK CR 1, ถ 7, 992 P.2d 383, 393 (emphasis added), cert. denied, 531 U.S. 888, 121 S. Ct. 208, 148 L. Ed. 2d 146 (2000). Several prospective jurors in Malicoat said they "could consider all three punishments equally." Id. We find that the word "equally" in Malicoat, although it accurately described the answers of the prospective jurors referred to in that case, was not required by law. The statement, "That is all the law requires," is misleading because it implies the law requires that much. Malicoat cited the case of Salazar v. State, 1996 OK CR 25, ถ 21, 919 P.2d 1120, 1127, cert. denied, 528 U.S. 895, 120 S. Ct. 226, 145 L. Ed. 2d 190 (1999), which said: "`To withstand a challenge for cause concerning punishment issues, a venireperson need only be willing to consider all the penalties provided by law and not be irrevocably committed to any one punishment option before the trial has begun.' Carter v. State, 1994 OK CR 49, ถ 20, 879 P.2d 1234, 1244, cert. denied, 513 U.S. 1172, 115 S. Ct. 1149, 130 L. Ed. 2d 1107 (1995)." ถ 53 Neither the Salazar case, nor the Carter case quoted in Salazar, contains the *927 word "equally." We correct the misstatement in Malicoat to the extent that it implies a prospective juror in a capital case must be able to consider all three punishments "equally." This correction does not effect the ultimate disposition of Malicoat's case, as the word "equally" was mere surplusage there and was more favorable to him than a more precise and accurate statement of the law would have been. Nor does the word "equally" used in Malicoat benefit Frederick, as it was handed down January 7, 2000, subsequent to Frederick's trial and conviction. Therefore, it was not in effect at the time of his trial, could not have applied to his case, and could not have been relied upon by him. Request for Additional Peremptory Challenges ถ 54 Frederick also claims that the trial court improperly denied his request for two additional peremptory challenges that he would have used to excuse two of three prospective jurors that he considered "unacceptable": Ms. Tyson, Mr. Simonds, and Mr. Stampley. Appellant did not challenge these jurors for cause and has not shown that any disqualified juror actually sat on his case. ถ 55 We held in Ross v. State, 1986 OK CR 49, ถ 11, 717 P.2d 117, 120, aff'd sub nom Ross v. Oklahoma, 487 U.S. 81, 83-84, 108 S. Ct. 2273, 2276, 101 L. Ed. 2d 80, 87 (1988): "The record reflects that defense counsel challenged the prospective juror for cause, and when the court denied the challenge, defense counsel used a peremptory challenge. All of appellant's peremptory challenges were subsequently used; but as there is nothing in the record to show that any juror who sat on the trial was objectionable, we are unable to discover any grounds for reversal." ถ 56 In their opinion affirming Ross v. State, the United States Supreme Court said: "None of the 12 jurors who actually sat and decided petitioner's fate was challenged for cause by defense counsel. . . . We conclude that petitioner has failed to establish that the jury was not impartial." Ross v. Oklahoma, 487 U.S. at 84, 86, 108 S. Ct. at 2276, 2277, 101 L. Ed. 2d at 87, 88 (1988).[4] ถ 57 We held in Tibbetts v. State, 1985 OK CR 43, ถ 12, 698 P.2d 942, 946: "The defendant challenged [a] juror for cause, was overruled, and used his last peremptory challenge to excuse her. The next juror drawn was a vehicle maintenance man for the City of Lawton who was acquainted with the policemen involved in the case. The appellant's claim is without merit as to the improper seating of the juror who was a maintenance man for the Lawton Police. He was adequately examined throughout his voir dire, and the defense counsel was satisfied with him on the jury, for she failed to challenge him for cause; in fact, defense counsel `passed him for cause.'" (Emphasis added.) ถ 58 See also Myers v. State, 2000 OK CR 25, ถ 6-12, 17 P.3d 1021, 1026-28, cert. denied, ___ U.S. ___, 122 S. Ct. 228, 151 L. Ed. 2d 163 (2001). Appellant's third proposition is denied. FIRST STAGE ISSUES Transcript of Psychiatrist Admitted from Previous Trial ถ 59 In Frederick's first trial, in 1992, a psychiatrist from Amarillo, Texas, Dr. Hugh Pennal, M.D., testified for the prosecution. He had examined Frederick in jail in Texas in 1989 and 1990 while Frederick was awaiting trial for the murder of Mr. Fox. By 1997, Dr. Pennal, due to a heart condition, was unable to testify in Oklahoma, or even to give a deposition in Texas. Both sides stipulated at Frederick's second trial that Dr. Pennal was unavailable, although Frederick continued to object to admitting Dr. Pennal's previous testimony. His testimony from the first trial was read to the jury in the second trial pursuant to 12 O.S.1991, งง 2804(A)(4) and 2804(B)(1). ถ 60 Appellant argues in the first subproposition of Proposition One that Dr. *928 Pennal's testimony should not have been read to the jury because, due to an Ake violation at the first trial,[5] he had no qualified psychiatrist to help prepare his counsel to cross-examine Dr. Pennal. Since it was stipulated that Dr. Pennal was not available at the time of the retrial in 1998, and he had testified and been cross-examined under oath in the previous trial in the same case, the court properly allowed a transcript of his previous testimony to be read to the jury at the retrial. Dr. Pennal's testimony was admitted at the retrial in strict compliance with the provisions of 12 O.S.1991, งง 2804(A)(4) and 2804(B)(1). This section of the Evidence Code codifies a traditional exception to the hearsay rule. If a witness is not available due to death or physical or mental illness or infirmity, the witness's prior testimony is not excluded by the hearsay rule if the party against whom the testimony is now offered had an opportunity and a similar motive to develop testimony by direct, cross, or redirect examination. Rogers v. State, 1986 OK CR 104, ถ 9, 721 P.2d 820, 823. ถ 61 Appellant can no longer claim he was surprised by the testimony since the State could only present the verbatim transcript of Dr. Pennal's testimony presented over five years earlier. Appellant's claim that his counsel at the first trial was denied access to Dr. Pennal's files is not supported by the record. Appellant's trial counsel at the first trial, Bert Richard, who also represented Appellant at the second trial, had been allowed at the first trial to examine Dr. Pennal's entire file, and he conducted a highly effective cross-examination of Dr. Pennal for bias. This cross-examination from the 1992 trial was read to the jury in the 1998 trial. ถ 62 Also, Appellant had the benefit of testimony of attorney David Green at his second trial, who had been his attorney in Texas during the time he was examined by Dr. Pennal. He was familiar with Appellant's condition in 1989. ถ 63 Counsel was not entirely deprived of expert advice at the original trial prior to the time he cross-examined Dr. Pennal because he had retained Dr. Philip Murphy, Clinical Psychologist, who had administered psychological tests to Frederick in 1992, including the MMPI-2.[6] ถ 64 Dr. Pennal found Appellant did not have Multiple Personality Disorder and found that Appellant was malingering. Dr. Coons, the defense psychiatrist at the second trial, testified that he could not determine whether Appellant had Multiple Personality Disorder, did not believe Appellant was malingering, but could not rule out malingering. Thus, his findings did not directly contradict Dr. Pennal's findings. In fact, as discussed below, insanity was not successfully raised in this case, and if any error occurred here, it would clearly be harmless. We give great deference to the trial court's determination that Dr. Pennal's testimony was admissible at the retrial. See Manuel v. State, 1990 OK CR 80, ถ 11, 803 P.2d 714, 716-17. ถ 65 Appellant claims that he was surprised by the last minute motion to use Dr. Pennal's transcript. However, the State had filed the same motion June 5, 1997, *929 before the Post-evaluation Competency Hearing, with a letter from Dr. Pennal's cardiologist, stating Hugh Pennal, who was born June 22, 1920, was undergoing treatment for cardiac arrhythmia and due to medical reasons should not testify or be cross-examined in a courtroom situation. His transcript had been admitted at the July 10, 1997, competency hearing. A similar motion was filed February 17, 1998, and hand delivered to defense counsel that day, with a similar letter attached, dated February 10, 1998, before the Jury trial which began February 23, 1998. Dr. Pennal's transcript was read to the jury on March 3, 1998. Appellant objected to the reading of the transcript on other grounds which had been previously stated, but not on the grounds of lack of notice. We therefore examine only for plain error. Since there was 14 days actual notice before the transcript was read, and Appellant had several months notice that Dr. Pennal, who was 77 years old, had a heart condition and could not travel or testify, we find the notice was adequate and there was no plain error. We find no reversible error in this subproposition. Proffered Hearsay Evidence of Dr. Pennal's Bias ถ 66 Dr. Pennal lived and worked in Amarillo, Texas, and by 1998 had been retired for several years. Under Subproposition Two of Appellant's first proposition, he complains that he was not allowed to present evidence of Dr. Pennal's "law and order" or pro law enforcement bias by using evidence of Dr. Pennal's reputation in his community. Appellant was allowed to make an offer of proof, in camera, by conducting an examination of his witness, David Green, Public Defender for the 69th District, who had been Frederick's lawyer in Texas. During that examination, Green stated Dr. Pennal's "reputation" in the community was that "he rarely found anyone insane or incompetent." He recalled discussing this with Selman Hale, Joe Mar Wilson, and possibly Warren Clark, three private attorneys in Amarillo about ten years before. He also recalled Mike Merideth, an Assistant District Attorney, saying that if you wanted the defendant to be found competent, just have Dr. Pennal examine him. ถ 67 However, Green also admitted, in camera, that the District Judge in the 69th Judicial District, Bill Sheehan, liked to appoint Dr. Pennal. He was asked, "Are you trying to lead the Court to believe that Judge Sheehan used Dr. Pennal all the time because he kind of liked him and he kind of had similar beliefs?" Mr. Green answered, "No I'm not trying to tell the Court that." Green said that Dr. Pennal got most of the appointments from Judge Sheehan during that time period that Green was aware of. A reasonable inference from Green's testimony would be that Judge Sheehan had confidence in the reliability of Dr. Pennal's psychiatric evaluations. ถ 68 Mr. Green testified that he could not say that Dr. Pennal's findings were inaccurate. Appellant made no attempt to show the rate of malingering among criminal defendants who are examined for incompetence or insanity. Appellant's own expert, Dr. Coons, testified later that malingering "is more common amongst people who have been criminally prosecuted." Dr. Coons was then asked, "So faking is more common [among] those people who are facing criminal charges?" and he answered, "I would think so, yes." ถ 69 Even if the hearsay comments quoted by Green from three or four Amarillo attorneys that in their experience Dr. Pennal "rarely found anyone insane or incompetent," could be considered, it would have little relevance in showing bias because there was no proffer of evidence, nor even a claim, that Dr. Pennal's evaluations were not accurate. Mr. Green's own experience contradicted any inference that Pennal's evaluations were not accurate. When asked if it were possible that Dr. Pennal's evaluations were correct, Green admitted, "Yes." The limited information provided by the offer of proof simply does not meet the relevancy requirements of 12 O.S.1991, งง 2401 and 2402. ถ 70 Mr. Green testified that he had only three or four clients, including Frederick, who had been examined by Dr. Pennal. Dr. Pennal had found one of those incompetent. He had not asked for a jury trial on competency *930 for any of his clients found competent by Dr. Pennal. The one client who Dr. Pennal found incompetent was also eventually found to be incompetent by the court. Green did not know of any case where Dr. Pennal's findings had been contested and overturned by a jury. ถ 71 Even if reputation evidence were admissible to prove bias, no foundation was laid to establish that Mr. Green was qualified to testify regarding Dr. Pennal's reputation. He did not live or practice in the same community where Dr. Pennal lived and practiced. Green lived in Dumas which was about 46 miles north of Amarillo. Green had moved there from Victoria in Southeast Texas and had just begun working as the Public Defender in January 1989, a few months before Frederick's arrest. He did not know of Dr. Pennal before 1989. Green had only met Dr. Pennal once before Pennal was appointed to examine Frederick and only remembers one case with Dr. Pennal after Frederick's case. "It is the universal and well-settled rule that a discrediting witness must be acquainted with the character or reputation of the witness whom he is called to impeach among his neighbors or general associates, and that he is incompetent where his knowledge is confined to private reputation as existing among a few people." 98 C.J.S. Witnesses ง 520 (1957). ถ 72 The Oklahoma Evidence Code provides that credibility of a witness may be attacked by evidence in the form of opinion or reputation, but only if the evidence refers to "character for truthfulness or untruthfulness." 12 O.S.1991, ง 2608. Extrinsic evidence, if relevant, is admissible to prove bias; however, Appellant cites no cases from any jurisdiction, and we have found none, holding that witness bias may be proven by hearsay or reputation.[7] ถ 73 Thus, the trial court properly held that the proffered reputation evidence was not admissible on the issue of bias. Frederick was not denied an opportunity to present proper evidence of witness bias, and we deny this proposition. Expert not Permitted to Testify about Amnesia in First Stage ถ 74 Appellant complains in Subproposition 5(F) that the trial court refused to allow Dr. Coons, his psychiatrist, to testify in the first stage of his trial about his amnesia or "dissociative fugue." The court ruled that the expert was not claiming that this mental condition amounted to insanity under the statutory definition in Oklahoma, and therefore his opinion was not relevant to the first stage guilt or innocence issues. We held in Frederick I, 1995 OK CR 44, ถถ 16-26, 902 P.2d 1092, 1095-98, after Frederick's first trial, that he was entitled to a psychiatrist in both stages of trial. Dr. Coons testified that he could not say that Frederick was suffering from the mental disability that was suspected at the time of the first trial, Multiple Personality Disorder (MPD), which he says is now called Dissociative Identity Disorder (DID). He said he could not diagnose this disorder nor rule it out. Nor could he say that Frederick was incapable of knowing right from wrong. He impeached Dr. Pennal's testimony ruling out MPD by saying he did not think it could be ruled out in such a short time (ten weeks). When asked, "How many years does it take to make an accurate diagnosis of multiple personality disorder?" he said, "[P]atients are in the mental health system for six or seven years on the average before the diagnosis gets made." But then Dr. Coons admitted: "On the average, but you know, that doesn't mean someone can't make the diagnosis from, you know, seeing the patient the first few times." (Emphasis added.) ถ 75 Appellant claims "the mental health evidence [of amnesia] was material [in the first stage] in that it might have created a reasonable doubt of innocence or diminished capacity and a lack of malice that would not have otherwise existed." Proving lack of *931 memory would not prove lack of malice. See Sellers v. State, 1991 OK CR 41, ถ 34, 809 P.2d 676, 686-87, cert. denied, 502 U.S. 912, 112 S. Ct. 310, 116 L. Ed. 2d 252 (1991) ("Mere inability to remember an event, in and of itself, cannot establish automatism, since the relevant inquiry involves the accused's knowledge and control at the time of the conduct, not at the time of trial."). Not surprisingly, Appellant cites no Oklahoma cases. Oklahoma law does not provide for a diminished capacity defense except for the insanity defense and the intoxication defense, neither of which were established under Dr. Coons's testimony or any other evidence. In Hooks v. State, 1993 OK CR 41, ถ 11, 862 P.2d 1273, 1277-78, cert. denied, 511 U.S. 1100, 114 S. Ct. 1870, 128 L. Ed. 2d 490 (1994), we held that the trial court properly excluded the proffered testimony of Dr. Murphy, a clinical psychologist, that "it was his opinion that Hooks did not act with malice aforethought when he killed the victim," and that "Hooks had been in a delusional state and had acted in the heat of passion." We noted, the doctor's testimony "significantly omitted an assessment of Hooks' sanity, i.e., whether, at the time of the murder, he had the mental capacity to distinguish right from wrong or to understand the nature and consequences of his acts." Id., 1993 OK CR 41, ถ 15, 862 buchananheather@example.com. ถ 76 In Frederick's case, his psychiatrist specifically testified that he was unable to determine Frederick's sanity or insanity, or whether Frederick knew right from wrong, at the time of the crime. Therefore, there was no error in the trial court's excluding opinion testimony offered by Frederick's psychiatrist in the first stage of trial that Frederick might have amnesia, but which