¶1concurring in results.
¶2I concur in the Court’s decision to reverse and remand the case for a new trial due to the trial court’s denial of Appellant’s right to examine Sharon Roe about his statement made immediately after the shooting that “it was them or me”. However, I disagree with the Court’s analysis on when the defense of self-defense can be raised and what evidence can be used to raise the defense.
¶3In order to warrant a jury instruction on self-defense, a defendant must show that he or she had a reasonable belief at the time of the killing that he or she was in imminent danger of great bodily harm or death. Bechtel v. State, 840 P.2d 1, 6 (Okl.Cr.1992). This can be proven by evidence of the events occurring immediately prior to and during the fatal altercation. Thompson v. State, 365 P.2d 834, 837 (Okl.Cr.1961). This evidence includes testimony of witnesses to the fatal altercation regarding the defendant’s conduct and state of mind and physical evidence of the altercation. This type of evidence can be-brought out through direct or circumstantial evidence, in the defense case-in-chief or through cross-examination of the State’s witnesses. However, if the defendant is the only person who can testify to the events occurring immediately prior to and during the fatal altercation, the defendant must testify in order to raise the defense of self-defense. Id.
¶4The Court distinguishes Thompsonfrom the present case in Footnote 7. However, I find it is directly on point. In Thompson, only the defendant and the victim were witnesses to the fatal shooting. This Court held that once the defendant testified to the events occurring immediately prior to and during the fatal altercation, she had sufficiently raised the defense of self-defense and could then present evidence of acts of violence against her by the deceased prior to the homicide.
¶5In the present case, Appellant and the victims were the only witnesses to the crime and therefore the only people who could testify to the events occurring immediately pri- or to and during the fatal altercation. As the victims were dead, Appellant was the only person who could so testify. Therefore, Appellant could only establish his defense of self-defense by taking the stand and testifying. As Appellant did not want to testify, he had no evidence of self-defense to warrant giving a jury instruction on the issue. If a defendant fails to testify and he is the only one who can provide sufficient, admissible evidence to raise the defense of self-defense, then he fails to testify at his own peril and *383runs the risk of failing to sufficiently raise the defense.
¶6The opinion also relies on evidence of threats on Appellant’s life made by the victims to persons other than Appellant. This evidence is not relevant in establishing the defense of self-defense. Only overt acts, gestures or words spoken by the deceased and communicated to the defendant immediately prior to or during the fatal altercation are relevant in establishing the fear which would form a reasonable ground for the belief that the defendant is about to suffer death or great bodily harm. See West v. State, 617 P.2d 1362, 1366 (Okl.Cr.1980).
¶7Here, the trial court did not order Appellant to testify but did require him to present evidence of self-defense in order to claim the defense of self-defense. Absent Appellant’s testimony, the evidence was insufficient to raise that defense. There were no prior threats by the deceased on Appellant’s life communicated to Appellant nor any evidence that the victims were the aggressors. If the victims did commit an overt act which would have provided the basis for the defense of self-defense, the Appellant was the only witness to that act. However, the evidence of the actions of the victims and Appellant immediately prior to the shooting, as related by Sharon Roe, only support a finding of a coldblooded killing. The only error in this case was a denial of the right of confrontation in the denial of Appellant’s right to fully cross-examine Sharon Roe.
¶8concurring in results.
¶9I join Judge Lumpkin in his special vote in this matter. In addition I would find that Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) has no application to OMahoma. It is authority for the premise that it would be unconstitutional to require a defendant to testify before he can present evidence. Brookscan be distinguished from the present case from a factual standpoint. In Brooks, Tennessee required a defendant to testify first in his case in chief if the rule as to sequestration of witnesses had been invoked. If he did not testify first he could not testify at all, because he would have violated the rule by being present in the court room when his other witnesses testified. OMahoma has never extended its rule on sequestration that far. I would limit Brooksto its facts and find that it has no application to OMahoma.