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, ___P.3d___(May 15, 2006).

¶2  A 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 seeking 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 28^th 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

ATTEST:
Michael Richie
Clerk