¶1specially concurring.
¶2I concur in the Court’s well-reasoned opinion which affirms the conviction for the offense of Murder in the First Degree. In addition, I find the comments of the Court regarding the dereliction of duty by the deputies which necessitate a remand of this case for resentencing to be very appropriate.
¶3I also find the Court’s application of Perez v. State, 798 P.2d 689 (Okl.Cr.1990), to be appropriate in this case. The Oklahoma Uniform Jury Instructions-Criminal (OUJI-CR) were adopted by this Court in 1981, and included the self-defense instruction which is set forth in OUJI-CR 745. However, for approximately nine (9) years, this Court would review the jury instructions as a whole to determine whether they adequately advised the jury of the State’s shifting burden in cases where self-defense was raised as a defense and OUJI-CR 745 was not given. The Court, in Perez, recognized notice should be given that as to future cases the Court would not continue with its review of the totality of the instructions to ensure the jury was properly instructed as to the State’s burden of proof when a defense of self-defense was raised. The Court, in Perez, did not adopt a “new constitutional rule” which required retroactive application pursuant to Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). At most, Perezgave notice of the scope and method of review on appeal which would be applied by the Court. Such a change in methodology of reviewing cases on appeal by an appellate Court does not rise to the level of “constitutional rules” to which the retroactivity analysis has been used. The Court’s decision in Perezis consistent with the legislative enactment contained in 20 O.S.1981, § 3001.1, which provides:
No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
¶4As the Court has properly determined in this case, the instructions as a whole did properly advise the jury of the State’s burden of proof as it relates to the defense of self-defense which was presented. The scope of review applicable to this case has been properly applied.
¶5In a ease which was pending on appeal at the time of the Perezopinion, where OUJI-CR 745 is not given in verbatim form, and the instructions as a whole appropriately advise the jurors of the State’s burden of proof as it relates to the defense of self-defense, the failure to give the verbatim instruction is, at most, harmless error. Simpson v. State, 876 P.2d 690 (Okl.Cr.1994).