OPINION
CHAPEL, Vice Presiding Judge.
Garry Michael Cheney was tried by a jury in Tulsa County District Court, Case No. CF-93-2001, and convicted of First Degree Malice Aforethought Murder, in violation of 21 O.S.1991, § 701.7.1 After the jury found Cheney guilty of murder, his case proceeded to the capital sentencing phase of trial to determine whether Cheney should be sentenced to life imprisonment, life imprisonment without the possibility of parole, or death. In support of its request for the death penalty, the State alleged three aggravating circumstances: (1) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution;2 (2) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;3 and (3) the murder of the victim was especially heinous, atrocious or cruel involving mental and/or physical torture.4 The jury found only one aggravating circumstance — that the murder was committed in an especially heinous, atrocious or cruel manner — and sentenced Cheney to death. In accordance with the jury verdict, the Honorable B.R. Beasley imposed the death penalty. Cheney appealed his murder conviction and death sentence to this Court. We affirm Cheney’s murder conviction; how[77]*77ever, we modify Cheney’s death sentence to life imprisonment without the possibility of parole because the evidence was legally insufficient to support the imposition of the death penalty in this case.
FACTS
Shortly after 5:00 p.m. on Friday, April 30, 1993 Cheney shot and killed his wife, Margaret Cheney, in the parking garage at the Occidental Oil and Gas (“Oxy”) budding in downtown Tulsa. Earlier that afternoon, Cheney purchased a .45 caliber pistol and black Talon bullets from the Golden Pawn pawnshop. Several witnesses testified they saw Cheney in the parking garage earlier that afternoon.
Claudia Teipel was in the Oxy parking garage at approximately 5:04 p.m. that Friday afternoon. As she approached her car on level H of the garage, Teipel noticed a woman and a man one level up from her. The woman was spraying the man in the face with a substance that Teipel believed to be mace or a similar substance. Teipel estimated the woman sprayed the man for ten seconds. The woman’s back was to Teipel and the man was facing her. The man had his hand on the woman’s elbow and Teipel heard the woman saying “he-he-he-he-he.”5 Teipel did not see the man strike the woman, she did not see a gun and she did not hear the man say anything. After spraying the man in the face, the woman ran down the ramp toward Teipel’s car and the man ran after her. Teipel saw the woman fall, then heard a gunshot. At that point, Teipel crouched behind her car. She could see the man standing over the woman with his arm extended and heard him fire several more shots. Teipel stated there was a pause between the first shot and the remaining shots, and estimated the pause lasted two to three seconds. Teipel also testified the time between the first and last shot was three to four seconds. After the shots were fired, Teipel got up, ran towards the woman and concluded the woman was dead.
Gary Sheets was also in the parking garage at the time of the shooting. He testified he heard a woman scream then saw a woman run down the ramp in front of him. Sheets stated a man ran behind the woman then caught up with her. After that point, however, Sheets was unclear about what happened. Sheets said he heard a loud noise, saw the man standing over the woman, then heard more loud noises. Sheets honked his horn when he realized the man was shooting the woman. Sheets stated the man crouched down and ran towards the stairwell. Sheets estimated the whole incident lasted twenty seconds and stated the time between the first and last shot was five seconds.
Other witnesses also heard shots fired in the Oxy parking garage shortly after 5:00 p.m. that Friday afternoon. Witnesses testified they heard one shot then a pause followed by several other shots. One witness testified the time lapse between the first and last shot was four seconds; another witness testified the time lapse was five to six seconds.
In addition to these facts, the State introduced evidence that Cheney and his wife were going through a divorce at the time of Margaret Cheney’s murder. In February 1993, Mrs. Cheney filed for divorce and sought a protective order limiting Cheney’s contact with her.6 Allen Smallwood, who was Mrs. Cheney’s divorce attorney, testified the parties agreed to the protective order. Smallwood stated it was unlikely that such-order would have been granted if Cheney had contested it because there was no direct [78]*78evidence of physical abuse prior to the issuance of the order.
There was also evidence that Cheney went to his wife’s house on March 31 — one month before her death. At that time, Cheney struggled with his wife. During the sentencing phase of trial, Cheney admitted he had a gun during the March 31 incident.
On April 1, Cheney checked into Brookha-ven Hospital where he was treated for manic-depression. Brookhaven released Cheney on April 16. Cheney had no contact with his wife from March 31 until April 30, when he confronted and killed her in the Oxy parking garage.
CAN THE DEATH PENALTY BE IMPOSED IN THIS CASE?
The key question in this case is whether Cheney can be sentenced to death for the murder of his wife. The general perception is that since our state law provides the death penalty for first degree murder, anyone convicted of that crime can be (and many believe should be) sentenced to death. This attitude is understandable given the horror of violent crime and the increasing public fear of senseless, tragic criminal acts. However, the United States Supreme Court has interpreted the Eighth Amendment to the United States Constitution to mean that the death penalty may only be imposed upon those few murderers who are deemed the worst of the worst murderers.7 Oklahoma, like all states, is bound by the Supreme Court’s interpretation of the Eighth Amendment.
In accordance with its interpretation of the Eighth Amendment, the Supreme Court requires states to employ principled, rational, non-arbitrary systems for discerning those few murderers who should be sentenced to die from the many murderers who are punished by a term of life imprisonment. To comply with this constitutional requirement, Oklahoma, like many other states, uses a two-step capital sentencing process. First, the jury determines whether the murder or murderer falls under one of the State’s statutory aggravating circumstances.8 Aggrava[79]*79ting circumstances are used to separate those few murder cases in which the defendant is eligible for the death penalty from the many eases in which the death penalty is inappropriate.9 Once the jury determines that one or more aggravating circumstances are applicable to a particular case, the defendant is deemed eligible for the death penalty. However, even at this point the death penalty is not automatically applied. The jury must balance the mitigating factors surrounding the murder and the defendant against the aggravating circumstances of the crime and decide whether or not the death penalty is truly appropriate in an individual case.10
This system for determining who should be punished by death is confusing and difficult to apply,11 and it has been the source of much litigation.12 This Court is often faced with the arduous task of parsing through the facts of some horrible, tragic crime to determine whether the defendant should be eligible for the death penalty and ultimately selected to die. When it is clear that the death penalty should not be applied in a given case, this Court must remedy that error.
In this case, there is no doubt Cheney is guilty of First Degree Murder. The evidence, as we have set forth above, clearly proved Cheney killed his wife with malice aforethought. Nonetheless, Cheney’s murder of his wife — while horrible and tragic— does not qualify for the death penalty under Oklahoma’s aggravating circumstances. Rather Cheney should have been, and now must be, sentenced to life in prison without the possibility of parole. An examination of the law and facts in this case make clear why this ruling is necessary and inevitable.
The jury in this case imposed the death penalty based solely on the especially heinous, atrocious or cruel aggravating circumstance. In the fourteenth proposition of his appellate brief,13 Cheney alleges the evidence was insufficient to show that the murder of his wife was especially heinous, atrocious or cruel as that aggravating circumstance has been interpreted by this [80]*80Court and by the United States Supreme Court. He is correct.
The especially heinous, atrocious or cruel aggravating circumstance has come under close scrutiny by the Supreme Court. In Maynard v. Cartwright,14 the Supreme Court found this aggravating circumstance was unconstitutionally vague under the Eighth Amendment of the federal constitution. The Court made clear that not every murder could fall under the especially heinous, atrocious or cruel aggravating circumstance and that Oklahoma must construe this aggravating circumstance so that there would be some principled way to distinguish the few cases in which this aggravating circumstance applies from the many eases in which it does not.15
In accordance with the concerns raised in Maynard, this Court has limited this aggravating circumstance to cases in which the State proves beyond a reasonable doubt that the murder of the victim was preceded by torture or serious physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty.16 “Absent evidence of conscious physical suffering of the victim prior to death, the required torture or serious physical abuse standard is not met.”17 As to the extreme mental cruelty prong of this aggravating circumstance, “torture creating extreme mental distress must be the result of intentional acts by the defendant. The torture must produce mental anguish in addition to that which of necessity accompanies the underlying killing. Analysis must focus on the acts of the defendant toward the victim and the level of tension created.”18
The standard for reviewing whether the State has met its burden of proving this aggravating circumstance is “whether there was any competent evidence to support the State’s charge that the aggravating circumstance existed.”19 While the evidence against Cheney shows the murder of his wife was senseless and tragic, the evidence does not support the conclusion that it was committed in an especially heinous, atrocious or cruel manner.
Under our case law, serious physical abuse requires more than simply showing that the defendant shot and killed the victim, an act which by its very nature is violent.20 Brown [81]*81v. State21 is illustrative. In Brown, the defendant and his wife had a long history of domestic violence. In September 1984, the defendant went to the police station and confessed to shooting his wife. The defendant’s wife was found dead in her car on the side of the road. She had been shot seven times. A police officer testified he believed the defendant fired several shots at the victim’s car causing the victim to run off the road. Some of these gunshots hit the victim. The officer stated he believed the defendant then stuck his arm in the window and shot the victim four more times. The medical examiner found that the victim was shot seven times and that two of the wounds were fatal. The medical examiner stated the victim would have died within minutes of receiving the fatal wounds, but he could not tell in what order the wounds were inflicted. This Court concluded that based on these facts this murder was not preceded by serious physical abuse.
Like the Brown case, Mrs. Cheney was shot and killed by her husband. There is no evidence Cheney threatened or physically harmed his wife during the initial confrontation in the garage. We do not know precisely how long this initial confrontation lasted, but it appears it lasted only a few seconds before Mrs. Cheney sprayed her husband in the face with mace and ran from him. Cheney then ran after his wife and shot her. Five of the shots were fatal and two of these shots would have rendered Mrs. Cheney instantly unconscious. There is a possibility that Mrs. Cheney was not killed or rendered unconscious by the first shot. However only two seconds elapsed before she was shot again. The medical examiner could not determine the order of the remaining shots. At most, Mrs. Cheney would have been conscious for a couple of seconds. These facts, while manifestly tragic and horrible, do not support a finding of serious physical abuse under the case law.22
The State argues Mrs. Cheney suffered extreme mental cruelty before her death because of the fear she must have felt when her husband confronted her in the parking garage. However, Mrs. Cheney’s fear was no different than the fear suffered by the victim in Brown or by any other victim who is facing the prospect of death. The mental torture element is confined to eases in which the victim is terrorized for a significant period of time before death.23 For example, in Hawkins v. State,24, the defendant drowned the victim. The Court concluded the evidence did not support serious physical abuse or torture preceding death. The Court did find, however, that the defendant inflicted great mental cruelty on the victim prior to death. Hawkins kidnapped the victim and her children from a mall. As the Court noted:
At the first possible instant Hawkins took this mother’s helpless children away from her. While she was upstairs with him she could not know if they were safe. All that night while she was chained in the barn she could only imagine what might be hap[82]*82pening to them. In the middle of the night he let her see them, only to take her away again. The next morning he dragged her away as she cried, “goodbye”, to her babies. Hawkins subjected this mother to a most extreme form of mental cruelty. The facts of this case satisfy both the limiting instruction that the murder was preceded by torture, and the jury’s finding that the murder was in fact heinous, atrocious or cruel.25
In Hawkins, the mental torture during the course of the kidnapping leading to the victim’s murder constituted extreme mental cruelty. Here, there is no such evidence of mental torture during the brief encounter between Cheney and his wife on April 30. The State cites Mann v. State,26 to argue that fright alone might be sufficient to support a finding of mental cruelty. However, in Mann, the victim was beaten, locked in a trunk and told she would be killed. This type of extended mental abuse before death is different from the basic fright that anyone must experience immediately prior to death. Mann does not stand for the proposition that fright alone is sufficient to support a finding of mental cruelty.
It is critical that this Court apply the statutory aggravating circumstances consistently. If we extend aggravating circumstances to meet the facts of each murder, then we face the very real prospect that a federal court will overturn our decision or that the Supreme Court will sustain a constitutional challenge to this aggravating circumstance once again.27 The case of Godfrey v. Georgia28 is particularly instructive on this point. In Godfrey, the Supreme Court found Georgia’s outrageously or wantonly vile, horrible or inhuman aggravating circumstance was unconstitutionally vague because the Georgia Supreme Court failed to apply that aggravating factor in a consistent, rational and readily discernable manner.29
The facts in Godfrey are remarkably similar to the facts in Cheney’s case. Godfrey shot and killed his wife and mother-in-law. Godfrey and his wife were experiencing marital difficulties. Shortly before the shooting, Godfrey and his wife had a heated argument in which Godfrey threatened his wife with a knife and damaged some of her clothing. After this incident, Godfrey’s wife left him, moved in with her mother and filed for divorce. Godfrey attempted to reconcile with his wife but she rebuffed him. One evening, Godfrey and his wife argued over the telephone. During the argument, Godfrey’s wife hung up on him. At that point, Godfrey got his shotgun and went to his mother-in-law’s trailer home. Godfrey peered through the window of the trailer and saw his wife, mother-in-law and daughter. He fired one shot into the trailer striking and lolling his wife. He then burst into his trailer, hit his daughter with the butt of his shotgun and shot and killed his mother-in-law. Godfrey called the police and confessed to the killings. Later, Godfrey told the police, “ ‘I’ve done a hideous crime, ... but I have been thinking about it for eight years ... I’d do it again.’ ”30
The jury and trial court in Godfrey’s case found the murder of Godfrey’s wife and mother-in-law was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” The Georgia Supreme Court affirmed. The United States Supreme Court reversed. In reversing the state court, the Supreme Court noted that earlier opinions of the state court indicated that evidence of torture or physical abuse— other than the murder itself — must be shown [83]*83to support this aggravating circumstance. Neither the trial judge nor the state high court found the murders in Godfrey’s case were preceded by torture or violence. The Supreme Court concluded that such broad application of the aggravating circumstance left the Court unable to find any discernable way to distinguish the defendant’s case in which the death penalty was imposed from the many cases in which it was not.
Likewise, in Cheney’s case there is no evidence of physical or mental torture prior to death, and the especially heinous, atrocious or cruel aggravating circumstance should not have been applied in this ease. If we were to allow Cheney’s death sentence to stand we would be committing the same constitutional error that was committed by the Georgia Supreme Court in Godfrey, and we would likely be rebuffed by a federal court just like the Supreme Court rebuffed the Georgia court in Godfrey. The State suggests that Cheney’s attack on his wife on March 31 is sufficient to give rise to a finding of mental torture. However, Cheney did not form the intent to kill his wife until the afternoon of April 30. Events that occurred one month before Cheney even formed the intent to kill are not enough to support the especially heinous, atrocious or cruel aggravating circumstance.31
Although we must modify Cheney’s death sentence, it is important to note that the “relief’ we are granting does not mean Cheney is allowed to walk away from his crime or is absolved from punishment. To the contrary, Cheney will spend the rest of his life in prison, without the hope of ever being released from incarceration. Most persons who are convicted of first degree murder face this penalty. Moreover, it is incumbent on this Court to take this necessary and proper action. When this Court fails to remedy cases in which the death penalty has been imposed improperly, appeals drag out for years until a federal court eventually grants the relief that we should have granted in the first place.32 These long delays result in unnecessary financial burdens on the State and impose tremendous emotional tolls on all parties to the case. We must not allow this to happen in the Cheney case.
Under the facts of this case, we 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.33
Although we have modified Cheney’s sentence of death, Cheney also raised in his brief a number of issues regarding the jury’s determination of guilt. Below we review these issues and conclude Cheney’s conviction should be affirmed.
VENUE
In his eighth proposition of error Cheney contends the trial court should have granted his motion for a change of venue. The standard for reviewing challenges to [84]*84venue was set forth in Coates v. State.34 In Coates, the Court established a two-prong test to determine whether a denial of a motion for a change of venue was in error. “First, prejudice may be presumed where the facts reveal that ‘the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings.’ ”35 If the facts do not give rise to a presumption of prejudice, the Court must then review “the entire circumstances surrounding appellant’s trial to determine whether the defendant received a ‘fundamentally fair’ trial.”36
In Cheney’s case, there was pre-trial news coverage of the murder of his wife. In addition to detailing the crime, the news reports focused on the issue of domestic violence and the problems in the Cheney marriage. During voir dire, the jurors were asked about their knowledge of the case. About half of the jurors had heard of the case. Some of these jurors did not really remember anything about the facts of the case; other jurors stated that they did not have any preconceived notions about the case or that they could set aside their opinions. Cheney used his peremptory challenges to strike seven jurors from the venire and then waived his eighth and ninth peremptory challenges.
The media did not pervade this trial.37 Although some of the jurors had heard of the case, these jurors affirmed they could put any preconceived notions aside. The pretrial publicity in this ease does not give rise to a presumption of prejudice. Turning to the second prong of the Coates test, we conclude, based on the totality of the circumstances, that the pretrial publicity did not deprive Cheney of his fundamental right to a fair trial. This proposition should be denied.
JURY SELECTION
In Proposition 9, Cheney argues that the trial court’s refusal to conduct individual voir dire of prospective jurors deprived him of his right to a fair and impartial jury. We disagree.
This Court does not require individual voir dire in capital cases.38 The decision to conduct individual voir dire rests in the trial court’s discretion. Here, Cheney moved to individually voir dire the jurors but the trial court overruled the motion stating “nothing is presented to convince me that individual voir dire was necessary or appropriate in this case.”39 There is nothing in the record indicating the trial court abused its discretion. In fact, trial counsel waived his eighth and ninth peremptory challenges indicating his satisfaction with the jury. This proposition is denied.
SUFFICIENCY OF THE EVIDENCE FOR FIRST DEGREE MURDER
In his first and second propositions of error, Cheney argues that the evidence was insufficient to sustain his conviction for first degree murder. Having carefully reviewed the record in this case, we find the evidence is sufficient to sustain the jury’s finding of guilt.
Cheney admits he killed his wife in the Oxy parking garage. His defense at trial was that he was not guilty by reason of insanity, or, alternatively, that he was only guilty of the lesser offense of Manslaughter in the First Degree. In support of these defenses, Cheney called two expert witnesses to testify about his mental condition at the time of the crime. Dr. Dodson and Dr. [85]*85Reynolds testified Cheney suffered from bipolar manie-depression and he had suffered from this illness for many years. Both doctors maintained that Cheney went to the garage to try to reconcile with his wife and that, if she refused him, he intended to kill himself. The doctors asserted that when Cheney was sprayed with mace something snapped and he killed his wife. Both doctors testified that at the time of the murder, Cheney could not appreciate the nature and consequences of his acts and that he could not distinguish right from wrong. Dr. Dodson also opined that Cheney should never have been released from Brookhaven Hospital and that the lithium that Brookhaven prescribed for Cheney was too low to control his manic-depression. Cheney had voluntarily admitted himself for treatment in Brook-haven Hospital on April 1st and was released on April 16th. Two weeks later he shot and killed his wife.
According to the defense doctors, after the shooting, Cheney experienced a psychogenic fugue in which he could act normally but would have no idea or recollection of what he was doing. After the shooting, Cheney drove to Kansas. When he realized what had happened, he decided to kill himself in Arkansas. As he was driving through Missouri on his way to Arkansas, the Missouri police apprehended him.
In rebuttal, the State called Dr. Wakefield, a psychologist who treated Cheney at Brook-haven. Wakefield testified that on March 31, a month before the shooting, Cheney knew what he was doing when he confronted his wife and threatened her.
The State also called Donald Perssons who occupied the cell next to Cheney in the county jail. Perssons had a Ph.D in psychology and had practiced as a psychologist for a number of years. Perssons also had been convicted of child molestation, distribution of child pornography and possession of a firearm. Perssons opined that Cheney was quite rational and that Cheney told him he would “walk” because he would claim he was insane. Perssons’ jailhouse diagnosis of Cheney was that Cheney was manic-depressive with extreme narcissistic tendencies.
In addition, the State called several lay witnesses. Among the lay witnesses was Toni Pruitt, Cheney’s secretary at his former place of employment. She testified about discussions she and Cheney had about his divorce and the counseling he was receiving in connection with his divorce. Pruitt stated that on two occasions Cheney said it was stupid for Mrs. Cheney to claim he was crazy because he could kill her and get off on an insanity plea. These statements occurred a few months before Mrs. Cheney’s death. Wanda Maxwell, the Cheneys’ babysitter, also testified. She stated she spoke with Cheney on April 80, just hours before he killed his wife. Maxwell stated Cheney sounded fine and he made sense when he talked to her.
In his first proposition of error, Cheney claims the evidence was insufficient to support the jury’s finding that he was sane. Under OHahoma law, a defendant is presumed sane.40 The defendant bears the burden of raising a reasonable doubt about his sanity.41 “If the defendant establishes a reasonable doubt of his sanity, the presumption of sanity vanishes and it is incumbent upon the State to prove beyond a reasonable doubt that the defendant could distinguish between right and wrong at the time of the offense.”42
Here, Cheney called two doctors who testified about his mental illness and his inability to know the nature and consequences of his acts or to know right from wrong at the time of the crime. Based on this evidence, Cheney raised a reasonable doubt about his sanity and the State bore the burden of disproving insanity beyond a reasonable doubt.
Cheney contends the State failed to disprove insanity beyond a reasonable doubt. “It is a well established rule that the question of whether the State has carried its [86]*86burden of proving the defendant’s sanity at the time of the crime is a question of fact for the sole determination of the jury and where there is any evidence tending to support its finding, it is not the province of the appellate court to weigh the same.”43 The State can disprove insanity by lay testimony as well as expert testimony, and it is within the province of the jury to disregard the medical evidence and give greater weight to the lay testimony.44
Here the State’s lay and expert testimony supported the jury’s finding that Cheney was sane at the time of the murder. Cheney focuses on the fact that none of the State’s witnesses expressed an opinion about Cheney’s sanity at the moment of the crime itself and that the State failed to have anyone evaluate Cheney after the crime. These omissions are not determinative. Nothing in the case law requires the State to produce expert testimony.45 The testimony of the State’s rebuttal witnesses as well as the evidence presented in the State’s case-in-ehief supports the jury’s determination of sanity.46 Cheney’s first proposition of error is denied.
Relying on evidence regarding his mental illness, Cheney argues in his second proposition of error that the evidence was insufficient to support a finding that he acted with malice aforethought. Cheney contends his mental illness precluded him from forming the requisite intent for first degree murder. While there was evidence showing Cheney was mentally ill at the time of the commission of the crime, there was also evidence showing Cheney possessed the deliberate intent to take Margaret Cheney’s life.47 For example, Cheney indicated before the murder that he would use the insanity defense; he bought a gun on the day of the murder; he waited for Mrs. Cheney in the Oxy parking garage for several hours; he chased Mrs. Cheney when she ran from him; and after firing the first shot, he waited one to two seconds before firing the remaining shots.
“This Court has held repeatedly that the jury is the exclusive judge of the weight of the evidence and the credibility of the witnesses testimony.”48 “Although there may be conflict in the testimony, if there is competent evidence to support the jury’s finding, this Court will not disturb the verdict on appeal.”49 Although there was a conflict in the testimony, there was competent evidence to support the jury’s finding regarding Cheney’s intent to kill his wife.50 Proposition 2 is denied.
[87]*87
FIRST STAGE EVIDENTIARY ISSUES
In Proposition 6, Cheney contends his conviction should be reversed because of the admission of other crimes evidence during the first stage of trial. There were two types of other crimes evidence elicited during first stage: (1) evidence that Cheney lied on the Alcohol, Tobacco and Firearms (“ATF”) form he filled out to purchase the weapon used to kill his wife; and (2) evidence of prior altercations between Cheney and his wife.
Other crimes evidence is not admissible as proof of character but “may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”51 The State contends in this ease that the other crimes evidence at issue was relevant to show intent or motive.
With respect to Cheney’s misrepresentations on the ATF form, the trial court allowed this evidence to be admitted to show Cheney’s state of mind on the day of the murder. Such evidence was relevant to rebut Cheney’s claim that he was insane at the time of the commission of the crime. This evidence, admitted for the purpose of showing Cheney’s state of mind and to rebut an insanity defense, was proper.
Cheney also complains about evidence regarding prior altercations with his wife. Specifically Cheney complains about the admission of evidence regarding (1) the protective orders issued during the divorce proceedings limiting Cheney’s ability to contact his wife; and (2) the confrontation between Cheney and his wife that occurred on March 30-31.
Where one spouse commits a crime against the other spouse, evidence of protective orders issued against the offending spouse may be admissible to show motive, malice or intent where intent is an issue.52 Evidence of violations of protective orders53 and prior altercations between spouses is relevant to show hostility, intent, motive or malice.54
Here, evidence of the protective order and the March 31st incident was admissible and relevant to establish intent and motive. In addition, this evidence was relevant and admissible to rebut the claim that Cheney was insane at the time of the commission of the crime. Although the protective order and the March 31st incident involved conduct occurring in the months preceding the killing, Cheney’s intent, knowledge, awareness and understanding of his behavior on these prior occasions provided circumstantial evidence relevant to the questions of intent and sanity on April 30.55 As this evidence was admissible, the prosecutor’s comments during closing argument regarding this evidence do not constitute error.
[88]*88In his seventh proposition of error, Cheney contends the trial court erred in permitting Donald Perssons to give improper, irrelevant, and prejudicial opinion evidence. For the reasons stated below, we find that the trial court did not commit reversible error in its rulings on Perssons’ testimony.
The State called Donald Perssons to rebut Cheney’s evidence that he was insane at the time of the crime. Perssons had a Ph.D. in psychology and had practiced psychology for approximately twenty years. Perssons also had been convicted in Utah for (1) sexual abuse of a child, (2) sexual exploitation of a minor, and (3) providing harmful materials to a minor. He was convicted in federal court for interstate transportation of child pornography and was convicted in federal court in Tulsa of possession of a firearm by a fugitive. While Cheney was incarcerated in Tulsa County jail, Perssons occupied the cell next to him.
Perssons testified about his observations and opinions concerning Cheney’s mental condition. The prosecutor elicited (or at least attempted to elicit) the following from Perssons: (1) The prosecutor asked Perssons if Cheney indicated he was suicidal. Pers-sons testified he did not think Cheney was suicidal. Cheney objected to this comment as non-responsive, and the judge sustained the objection. (2) The prosecutor asked if Perssons made a determination whether Cheney was suicidal, Cheney objected that the question called for a conclusion beyond his expertise, and the trial court sustained the objection. (3) The prosecutor asked if Perssons made a determination about Cheney’s personality, Cheney objected, and the trial court sustained the objection. (4) Pers-sons testified about his conversations with Cheney and Cheney’s comment that he was going to plead insanity and that he thought he could do it. When Perssons opined that Cheney was “quite rational,” Cheney objected, and the trial court sustained the objection. (5) Later during direct examination, the prosecutor again asked Perssons if he made a determination about Cheney’s personality type. Perssons said he “diagnosed him as manic depressive with extreme narcissistic tendencies.”56 Cheney did not object to this testimony. (6) The prosecutor asked if narcissistic tendencies could be treated with medication. Cheney objected that Pers-sons was not qualified to answer the question and the trial court sustained the objection. (7) After the prosecutor laid a foundation, Perssons testified that narcissistic tendencies can be treated through psychotherapy, particularly group therapy. There was no objection to this testimony. (8) At the end of the direct examination, the prosecutor asked Perssons if he had any indication whether Cheney knew right from wrong. Cheney objected and the trial court sustained the objection.
On appeal, the only testimony to which Cheney objects is Perssons’ testimony that he diagnosed Cheney “as manic depressive with extreme narcissistic tendencies.” Since Cheney did not object to this question at trial, review is limited to plain error.
In cases in which the defendant’s sanity is at issue lay witnesses, “after testifying to the act, conduct and appearance of the defendant, may state whether such acts, conduct and appearance impressed him as being rational or irrational.”57 “However, a lay witness is not permitted to give an opinion calling for a medical diagnosis.”58 Before a witness can testify as an expert, he must be qualified as an expert.59 Here, the State did not offer Perssons as an expert in the field of psychology and the trial court never ruled on his qualifications as an expert. It appears, therefore, that Perssons was testifying as a lay witness and it was error for Perssons to testify about his medical diagnosis of Cheney, i.e. that Cheney was manic-depressive with narcissistic tendencies. However, Cheney did not object to this testimony and similar testimony was elicited from other expert wit[89]*89nesses testifying as trial. At most, this evidence was merely cumulative and does not rise to the level of plain error. Accordingly, we decline to grant relief based on this proposition of error.
In Proposition 10, Cheney argues the trial court abused its discretion in admitting Exhibit 3, which was a photograph of Mrs. Cheney lying on the garage floor shortly after she had been shot. Cheney contends that the photograph was unnecessary as he had admitted shooting his wife.60
A trial court’s decision to admit photographs of the murder victim will be upheld unless its decision constitutes an abuse of discretion.61 Exhibit 3 accurately depicted Mrs. Cheney’s dead body at the murder scene and corroborated the testimony of the medical examiner and the eyewitnesses. The probative value of the photograph outweighed its prejudicial effect and the trial court did not err in admitting it. Cheney’s case is distinguishable from Sattayarak v. State,62 and Oxendine v. State.63 Both involved post-autopsy photographs of the victim. Exhibit 3 was not a post-autopsy photograph. Similarly, Cheney’s case is distinguishable from Jones v. State,64 and Tobler v. State,65 which concerned photographs of a decomposed body. Mrs. Cheney’s body was not in a state of decomposition; rather, the photograph accurately depicted Cheney’s handiwork and was properly admitted into evidence. We decline to grant relief based on this proposition of error.
PROSECUTORIAL MISCONDUCT
In his eleventh proposition of error, Cheney alleges the prosecutor engaged in a number of incidents of misconduct during both stages of trial. We will only consider those incidents occurring during the first stage of trial, as we have already granted sentencing relief to Cheney.
We have reviewed all of Cheney’s allegations of prosecutorial misconduct and found many of them to be without merit. However, on several occasions the prosecutor did overstep the bounds of proper argument and examination of witnesses. The prosecutor’s conduct was improper and raises serious concerns for all parties to the ease. Not only is it disturbing to see a prosecutor flout the law and ignore the direct and explicit rulings of the district court, but also it is reckless for a prosecutor to inject potentially reversible error into a trial by committing acts of misconduct. In this case, although some of the prosecutor’s statements are troubling, we find, consistent with other decisions of this Court66 and the overwhelming evidence in Cheney’s case, that such errors are not sufficient to warrant relief. Accordingly, this proposition of error is denied.
FIRST STAGE JURY INSTRUCTIONS
In propositions 3, 4 and 5, Cheney objects to certain first stage jury instructions. We find these jury instructions were proper and relief is not warranted.
In Proposition 3, Cheney relies on Johnson v. State,67 to argue that Jury Instruction 22 was defective. Instruction 22 mirrored the standard OUJI-CR instruction defining insanity under Oklahoma law, and we find the instruction given to the jury in this case to be proper.
[90]*90Oklahoma uses the M’Naghten test to determine the issue of sanity at the time of the crime. This Court has held that the M’Naghten insanity test, as applied in Oklahoma, has two prongs.68 Under the first prong, the defendant is considered insane if he is suffering from a mental disability such that he does not know his acts are wrong and he is unable to distinguish right from wrong with respect to his acts.69 Under the second prong, the defendant is considered insane if suffering from a disability of reason or disease of the mind such that he does not understand the nature or consequences of his acts or omissions.70 The defendant need only satisfy one of these prongs in order to be found not guilty by reason of insanity.
In Johnson,71 the Court reversed the defendant’s conviction because a defective jury instruction required the defendant to satisfy both prongs of the M’Naghten test in order to be found not guilty by reason of insanity. Unlike the defective instruction in Johnson, Instruction 22 did not require the jury to find both prongs of M’Naghten in order to find insanity. To the contrary, Instruction 22 accurately reflected Oklahoma law and the jury was properly instructed on this issue. This proposition is denied.
In Proposition 4, Cheney complains the trial court erred by failing to instruct the jury on the lesser offense of second degree murder. Cheney did not request this instruction at trial, thus we review for plain error only.
Second degree murder was not suggested by the facts of this case. Second degree murder is murder that results from conduct that is imminently dangerous to another but which “is not done with the intention of taking the life of or harming any particular individual.”72 Here, Cheney’s conduct was directed specifically at his wife. The trial court did not err in not giving the second degree murder instructions sua sponte.73
In his fifth proposition of error, Cheney contends the first degree heat of passion manslaughter instructions given in this case should have instructed the jury that adequate provocation was to be viewed subjectively from the circumstances of the defendant rather than from the view of a hypothetical reasonable man. Essentially, Cheney urges this Court to adopt the Model Penal Code standard for determining whether adequate provocation exists to warrant a finding of First Degree Manslaughter. We decline to adopt this standard and find that the reasonable person standard does not violate Cheney’s right to due process.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his twelfth proposition of error, Cheney contends he was denied effective assistance [91]*91of counsel because Ms trial counsel (1) failed to use all peremptory challenges and failed to excuse certain jurors for cause; (2) failed to request second degree murder instructions and a limiting instruction on other crimes evidence; (3) failed to object to the rebuttal evidence of Toni Pruitt and Dr. Wakefield; and (4) failed to object to certain instances of prosecutorial misconduct. We disagree.
In Strickland v. Washington,74 the Supreme Court laid out the well-known test for ineffective assistance of counsel claims:
First, the defendant must show that counsel’s performance was deficient. TMs requires showing that counsel made errors so serious that counsel was not functiomng as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. TMs requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showmgs, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.75
Here, trial counsel was not ineffective. Counsel’s jury selection decisions appear to be reasonable trial strategy. None of the jurors who served on Cheney’s jmy appear to be unqualified and there appears to be no prejudice to Cheney based on trial counsel’s jury selection strategy. Moreover, the facts in this case do not suggest second degree murder, and counsel did not err in failing to request such an instruction. Regarding the failure to request a limiting instruction on the other crimes evidence, it probably would have been prudent for trial counsel to have requested such an instruction. However, tMs omission does not appear to have prejudiced Cheney and is not sufficient to warrant relief.
Further, counsel was not ineffective for failing to object to rebuttal witnesses as those witnesses were properly called by the State. Since Pruitt was a rebuttal witness, the prosecutor was not required to endorse her on the Information.76 On appeal, Cheney contends trial counsel should have requested a continuance because he was surprised by Pruitt.77 However, whether or not to request a continuance at that point appears to be a reasonable trial strategy that did not prejudice Cheney. Additionally, it does not appear that counsel could have successfully challenged Dr. Wakefield on the grounds of privilege,78 and counsel did not err in failing to object to his testimony.
Finally, with regard to the improper argument, we concluded earlier that the prosecutor’s comments were not sufficient to warrant relief. Trial counsel was not ineffective for failing to object to these comments. Accordingly, this proposition is denied.
Having found none of the issues raised concerning the guilt-and-innoeence stage of the trial warrant relief, we affirm Cheney’s conviction for First Degree Murder.
DECISION
The judgment of the district court is AFFIRMED and the sentence of death is MODIFIED TO LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE.