OPINION
LILE, Vice Presiding Judge:
¶ 1 Appellant, Edward Bruce Primeaux, was charged with two counts of alternative theories of First Degree Murder (malice murder or felony murder) in violation of 21 O.S.Supp.1999, § 701.7(A) & (B), in Case No. CF-2000-396 in the District Court of Kay County, for the deaths of Warren Littlecook and Julia Bear who were killed on July 5, 2000, in Ponca City, Oklahoma.
¶2 The State filed a Bill of Particulars alleging five aggravating circumstances in the deaths of both Littlecook and Bear: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant knowingly created a great risk of death to more than one person; (3) the murders were especially heinous, atrocious or cruel; (4) the murders were committed to avoid lawful arrest or prosecution, and (5) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.Supp. 1999, § 701.12(1), (2), (4), (5), & (7).
¶ 3 A jury trial was held before the Honorable D.W. Boyd, District Judge, in February 2002. The jury found Primeaux guilty of both counts of First Degree Murder. After the sentencing stage, the jury found the existence of all of the aggravating circumstances in the murder of Bear, and all but the “murder to avoid arrest” aggravating cireum-stance in the murder of Littlecook. The jury recommended that Primeaux be put to death for both of the murders. On March 1, 2002, Judge Boyd formally sentenced Primeaux to death on both counts, in accordance with the jury verdict. Primeaux has perfected his appeal of the Judgment and Sentence in this case.
I. FACTS
¶ 4 Waxren Littlecook and Julia Bear lived together at 812 Noi’th Pine in Ponca City, Oklahoma. They wei'e found stabbed to death on Thursday July 6, 2000. The evidence revealed that Littlecook was initially stabbed in the chest with a knife, which severed a major artery. Then, he was stabbed six times in the back. Littlecook died as a result of a loss of blood from the initial stab wound, which severed his pulmonary artery. He also had four post-mortem stab wounds in the stomach. He had defensive wounds on his left hand.
¶ 5 Julia Bear was stabbed forty-one times. She was sitting in a wheelchair when she was attacked. She was stabbed one time each in front of both shoulders. She was stabbed once in the upper left quadrant of her abdomen. She was stabbed eight times below the right breast area (three of these punctured the liver, causing internal bleeding). There wei*e stab wounds to both hands. She was stabbed once in the right side of her back (one stab wound was to the chest cavity, which punctured the right lung and caused it to collapse). She was stabbed six times on the left side of her back (two of these entered the chest cavity and punctured the left lung and caused it to collapse). She was stabbed four times in her left upper arm. She was stabbed seven times in the left rear side of her neck. She was stabbed six times on the left front side of her neck and face (one of these severed the left external carotid artery). There were two superficial stab wounds on the right side of her chin. A vacuum cleaner coi'd was wrapped once around her neck, but there were no signs of strangulation. She died as a result of multiple stab wounds.
¶ 6 An empty envelope was discovered next to a recliner. This envelope had contained the proceeds from Littleeook’s monthly checks, which he received at the first of each month. One person described the amount in the envelope as a “large wad.” Only $280.00 was recovered in the house. This money was hidden in a di'esser drawer.
¶ 7 Testimony about the events leading up to them deaths revealed that the couple had cashed checks totaling about $1,400.00 on July 1st. They paid out just over $600.00 for í'ent and bills on that first weekend in July. [899]*899Primeaux knew that the victims received checks on the first of the month.
¶ 8 Frank Kowalski delivered meals to Littlecook and Bear around noon on July 5. He didn’t see Littlecook or Bear, but Little-cook said okay when Kowalski said, “here are your meals.”
¶ 9 The morning of July 5th, Primeaux left his house with about $15.00 so he could get a new tire for his bike. He told several people that he didn’t have much money. However, he did buy some quart bottles of beer that morning, after he couldn’t find a tire. He joined friends who were also drinking beer. One of them saw him with a knife, carving on the picnic table. He then went to a bar where he got angry because his “Mend” would not let him drink any more of the beer the Mend purchased.
¶ 10 Later that evening, Primeaux arrived home and said that he stabbed a man and a woman. He said that he “tore a couple up real good.” Primeaux and his family gathered his bloody clothes in a trash bag and took the bag to Kaw Lake where they attempted to burn the clothes. Primeaux gave a knife to Billy Roberson, his stepson, who threw the knife in the lake. They stopped at two stores on the way to the lake and bought beer, cigarettes and some gas to burn the clothes. Primeaux provided the money for these items. Later, partially burned tennis shoes and beer bottles were found at the lake where officers were told the clothes were burned.
¶ 11 One witness testified that Primeaux came by her convenience store that afternoon and bought some beer; although, he usually paid for the beer in exact change, this time he used a bloody twenty-dollar bill. She also testified that Primeaux bought a larger amount of beer than he usually bought (six quarts of Busch Beer at 3:30 p.m.) Primeaux returned twice more and bought nine more quarts of beer.
¶ 12 Primeaux testified that Randy Davis stabbed Littlecook because Littlecook refused to give him beer. Police questioned Randy Davis, he claimed to have knowledge of the crime, and he knew things about the crime scene, which proved to be true. However, his story did not match the way the murders were committed. He was initially charged conjointly with Primeaux, and bound over for trial, but charges against him were later dropped.
¶ 13 Primeaux raises twelve propositions of error in his appeal. These propositions will be addressed as they arose during the prosecution of this case.
II. PRETRIAL ISSUES
A.
¶ 14 In proposition eight, Primeaux argues that the United States Supreme Court decision in Ring v. Arizonct) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) requires that the aggravating circumstances be charged by Information or Indictment and that they be proven at preliminary hearing. In Ring, the United States Supreme Court held that a capital jury must make any factual finding bearing on capital punishment beyond a reasonable doubt. Ring, 122 S.Ct. at 2439-40.
¶ 15 Primeaux bases this argument on some of the reasoning found in Ring that refers to aggravating circumstances as the “functional equivalents” of elements of the offense. As such, Primeaux argues that the United States Constitution and the Oklahoma Constitution require that the aggravating circumstances be charged by Information or Indictment and that the aggravating circumstances be presented before an examining magistrate at preliminary hearing. Otherwise, the District Court does not have jurisdiction over the case.
¶ 16 The decision in Ring is not as broad as Primeaux argues. The appellant in Ring did not specifically raise a claim that the indictment was constitutionally infirm. Ring, 122 S.Ct. at 2437 n. 4. Ring does not change the procedure in Oklahoma. Notice of the aggravating circumstances was provided in the bill of particulars. This document gives notice that the State intends to seek the penalty of death. The aggravating circumstances were presented to the jury and the jury was required to find that the aggravating circumstances existed beyond a reasonable doubt. This is all that is required by [900]*900law. Johnson v. State, 1982 OK CR 37, ¶ 10, 665 P.2d 815, 819.
B.
¶ 17 In proposition five, Primeaux claims that the evidence presented at the preliminary hearing was insufficient to hold him over for trial for the two counts of First Degree Felony Murder. He does not contest the evidence supporting Malice Murder. He claims that there was no admissible evidence to show that Primeaux robbed or attempted to rob either Littlecook or Bear.
•¶ 18 Primeaux’s only attempt to preserve this issue for appeal was his general demurrer to the evidence at the end of the preliminary hearing. He made no formal motion to quash prior to entering a plea at the formal arraignment.
We have previously held that waiver is effected by failure to file a motion to quash prior to entering a plea. Even had his assignment been properly preserved it would fail on its merit. There is sufficient evidence from which reasonable cause that a crime was committed and that appellant committed it could be found by the magistrate.
Koonce v. State, 1985 OK CR 26, ¶7, 696 P.2d 501, 504, overruled on other grounds in Landtroop v. State, 1988 OK CR 90, 753 P.2d 1371 [citations omitted]. Primeaux’s main argument is that the trial court relied on statements made by Randy Davis, which were later ruled inadmissible at trial. At preliminary hearing, Davis and Primeaux were charged conjointly with these crimes. At trial, the evidence was that Primeaux acted alone.
¶ 19 Primeaux claims there was no evidence independent from Davis’s statements, which were not offered against Primeaux at the preliminary hearing due to Confrontation Clause problems. To the contrary, during the preliminary hearing evidence was presented that the victims had $1300.00 before the murder and only $240.00 could be found after the killing. After the murders, Pri-meaux had more money than he usually carried. Primeaux admitted to his family that he stabbed the victims. Primeaux and members of his family went to Kaw Lake to dispose of his bloody clothes. A knife was thrown into the lake. During this hearing, Primeaux, waiving confrontation clause violations, introduced a statement made by Davis stating that Primeaux took money from an envelope in the victim’s home.
¶20 The burden of proof at preliminary hearing is probable cause. 22 O.S.Supp.1999, § 258. The State presented sufficient evidence at preliminary hearing to establish probable cause that Primeaux committed the crime of Felony Murder, with Robbery with a Dangerous Weapon as the underlying felony, as well as Malice Murder.
III. JURY SELECTION ISSUES
¶21 In proposition one, Primeaux complains that the trial court improperly excused Juror Reeves for cause. We begin with the basic premise that the decision to excuse a prospective juror for cause rests within the sound discretion of the trial judge, whose decision will not be overturned unless an abuse of discretion is shown. Myers v. State, 2000 OK CR 25, ¶ 6, 17 P.3d 1021, 1026, cert. denied, 534 U.S. 900, 122 S.Ct. 228, 151 L.Ed.2d 163 (2001). This Court will review the prospective juror’s entire voir dire examination to determine if the trial court made the proper discretionary decision. Id. A prospective juror must be willing to consider all the penalties provided by law, and the juror must not be irrevocably committed to any one punishment before trial has begun. Myers, 2000 OK CR 25, ¶ 6, 17 P.3d at 1026-1027.
¶22 The trial court first asked potential juror Reeves, “[C]ould you consider all three of the available punishments and impose that one punishment that you believe is warranted by the law and the evidence in this case?” She stated “No, Sir.” The trial court then asked, “Which of those punishments could not consider?” She stated, “Death.”
¶ 23 The trial court went on in an attempt to clarify Reeves’ position by asking, “Are you saying that there are no facts or circumstances that you can conceive of where the imposition of the death penalty would be an [901]*901appropriate punishment?” Reeves replied that it would bother her.
¶24 The trial court explained to Reeves that the law requires that she consider all three punishments and impose the one that she believes is warranted under the facts and circumstances. The trial court asked her if she could set her feelings aside “and at least seriously consider the death penalty under the facts and circumstances once you know them?” She stated, “I am not sure I could.” The proceedings were then moved to the trial court’s chambers where Reeves could be questioned in camera.
¶ 25 The trial court asked her if her opposition to the death penalty would prevent or substantially impair her with finding the defendant guilty in the first stage. She stated that she was afraid that would be on her mind for a long time and she didn’t know if she could.
¶ 26 The trial court then asked her, if the case were to reach the penalty phase, if she would automatically vote against the death penalty. She stated that it would be very hard for her to make that decision. The trial court told her that it would be hard for any juror and that feeling was different from someone who could not consider one of the penalty options. The trial court asked Reeves if there was any circumstance for which she believed the death penalty would be an appropriate punishment. She stated, “I don’t know. I think I would still have a problem with it.”
¶ 27 Primeaux’s counsel was allowed to question Reeves. Counsel asked Reeves if she had a personal belief against the death penalty or if she just didn’t want to be put in the position to decide. Reeves stated that she didn’t want to be put in that position.
¶ 28 The trial court then continued questioning her and she stated that she didn’t think the death penalty was wrong, but she didn’t feel comfortable imposing it. The trial court then asked if her feelings would “prevent you or substantially impair you from considering the death penalty?” Reeves stated, “Yes.” The Court: “regardless of what the facts and circumstances are ... ?” Reeves: “I think so.”
¶ 29 We have held:
[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.
Allen v. State, 1994 OK CR 13, ¶ 23, 871 P.2d 79, 90-91, cert. denied, 513 U.S. 952, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994) (citations omitted). Reeves stated that she would have a hard time considering the death penalty and finally stated that her feeling would prevent her from considering the death penalty. She never stated clearly that she would set aside her feelings and consider all three punishment options.
¶ 30 We find that the manner in which the trial court conducted voir dire in this case complied with the law. Matthews v. State, 2002 OK CR 16, ¶ 16, 45 P.3d 907, 915, cert. denied, 537 U.S. 1074, 123 S.Ct. 665, 154 L.Ed.2d 570 (2002); Abshier v. State, 2001 OK CR 13, ¶¶ 113-14, 28 P.3d 579, 603-04, cert. denied, 535 U.S. 991, 122 S.Ct. 1548, 152 L.Ed.2d 472 (2002). The trial court was in the best position to determine Reeves’ fitness for jury duty in this case by viewing Reeves’ demeanor during questioning. See Patton v. State, 1998 OK CR 66, ¶ 16, 973 P.2d 270, 281-82, cert. denied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271 (1999). Based on the entire voir dire of this juror, we cannot say that the trial court abused its discretion in removing potential juror Reeves for cause.
IV. FIRST STAGE ISSUES
¶ 31 One time eodefendant Randy Davis made several statements to police. His statements were not allowed to be introduced during trial. In Proposition three, Primeaux claims that the trial court’s ruling excluding statements made by Randy Davis was in error, because the statements were not offered for the truth of the matter asserted. Primeaux intended to subpoena Randy [902]*902Davis, however, the record indicates that Davis would invoke his Fifth Amendment right not to incriminate himself. Therefore, his unavailability was established.
¶ 32 Primeaux intended to call Detective Bohon during his case in chief. He made a record indicating that his testimony would be consistent with his testimony at the preliminary hearing. Primeaux also made an offer of proof for the testimony of Oklahoma State Bureau of Investigation Agent Willie Thornton by stating that his testimony would be essentially the same as Bohon’s preliminary hearing testimony. Primeaux wished only to admit the statements that incriminated Davis and not the statement in which Davis incriminated Primeaux.
¶ 33 In pretrial hearings, the trial court ruled that none of Davis’s statements would be allowed, “for the truth of the matter asserted.” Primeaux had indicated in its response to a motion in limine by the State, that the statements were not offered for the truth of the matter asserted, thus not hearsay. However, the trial court ruled that the statements were hearsay.
¶34 At trial there was much argument about the statements being against Davis’s penal interest. Title 12 O.S.2001, § 2804(B)(3), states, in part, that,
a statement tending to expose the declar-ant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
¶ 35 The trial court ruled that the statements were untrustworthy. The -trial court stated, “the statements that Randy Davis made, either to his father or to law enforcement officials, whomever, are hearsay, and the only grounds under which this court has been advised that they might be admissible would be the exception to the hearsay rule contained in 2804(B)(3) ...” The court went on to say that it knew of no other corroborating circumstances which showed that the statements were trustworthy.
¶ 36 Primeaux does not attack that ruling, but claims that the statements should have been introduced because they were not intended to show the truth of the matter asserted (a gz’ound argued by Primeaux before trial).
¶37 An analysis of the admissibility of hearsay statements involves several issues. In the context of statements offered for the truth of the matter asserted, three issues must be evaluated:
(1) Does the evidence constitute the serial repetition of a statement?
(2) What is the statement offered to prove?
(3) Is the statement offered to prove the truth of the matter asserted?
Whinery, Oklahoma Evidence, § 27.02 (1994).
¶38 If the purpose for which it is offered is not to establish any assertions made by the challenged evidence, it is not hearsay. Chambers v. State, 1982 OK CR 123, ¶ 16, 649 P.2d 795, 798, overruled on other grounds in Richardson v. State, 1992 OK CR 76, 841 P.2d 603. Conversely, if the purpose of offering the statement is to establish any assertion made by the challenged evidence, it is hearsay.
¶ 39 Statements not offered for the truth of the matter asserted are generally admissible. Chambers, 649 P.2d at 798. The determination of whether statements “fall within or outside the scope of the definition of being offered ‘to prove the truth of the matter asserted’ is perhaps more difficult than the management of any other aspect of the hearsay rule....” Whinery, Oklahoma Evidence, § 28.03 (1994).
¶ 40 Randy Davis admitted to detectives that he was present when Primeaux stabbed Mr. Littlecook and Ms. Bear. He also admitted that he stabbed Ms. Bear also, because Primeaux “told him to.”
¶41 Davis stated that he removed Ms. Bear’s underwear and tried to have sex with her, but he did not ejaculate. Ms. Bear was wearing no underwear when she was found.
¶ 42 Appellant argues:
Mr. Primeaux sought to introduce Mr. Davis’ statements to these third parties to show his knowledge of the scene, why he [903]*903had been arrested, that he repeatedly changed is [sic] story, to prove that he had been present at the scene, to corroborate Mr. Primeaux’s testimony, to rebut the State’s claim that no evidence implicating Randy Davis existed, and for the fact that the statements had been made, but not for the truth of the statements.
Appellate counsel does not assert that the statements were true or trustworthy.
¶ 43 The difficulty lies in the ability to evaluate the credibility of the absent de-clarant. If the statement is offered for the truth of the matter asserted, credibility becomes an issue. If the statement is not offered for the truth of the matter asserted, credibility of the absent declarant is immaterial. Whinery, § 27.01.
¶ 44 There are generally four types of statements that typically fall into this group of non-hearsay statements. Whinery, § 28.04. Primeaux argues that these statements fall in one of these four types — Statements of knowledge. See Whinery § 28.06. Primeaux argues that the statements are introduced to show that Davis had knowledge of the crime scene, which would have been gained by actual presence at the time of the crime.
¶ 45 However, an analysis of the statements reveal that Primeaux’s only reason for admitting these statements was to show that Randy Davis was involved in this crime or was present when it occurred and to show that Primeaux’s testimony was true. This is the ultimate truth of the matter asserted. The truth asserted is that Davis was present when the crimes occurred. The statements are details about the crime — Davis is basically saying, he was there and this is what happened. Regardless of the truth or trustworthiness of his statements, the truth of the matter asserted is “I was there.”
¶46 Because the statements go to the truth of the matter asserted, Davis’s credibility becomes an issue. Davis’s out of court statements cannot be tested by the adversarial process. Therefore, the statements are inadmissible under the hearsay rule, the trial court found them unreliable and Appellant does not assert that they were reliable.
¶ 47 Another reason for admission, Pri-meaux claims, is to show that Primeaux was not the only suspect in the case. Primeaux claims that, without this evidence, the jury was left with a false impression that he was the sole suspect in the case, and that there was no evidence that anyone else was involved.
¶ 48 To the contrary, as discussed in proposition four, Detective Steiber, during cross-examination testified that Randy Davis was arrested as a suspect in this ease. Steiber testified that probable cause had to be established before Randy Davis was arrested. Primeaux established the fact that no warrant was obtained to arrest Davis, but that someone in law enforcement had probable cause to arrest him. Primeaux elicited testimony indicating that Davis made statements to the police. Testimony indicated that by the time of the last statement Davis was under arrest for the crime. Primeaux even established the fact that Randy Davis was charged with this crime.
¶49 Primeaux also claims that the exclusion of this evidence based on strict adherence to the rules of evidence deprived him of due process. Primeaux claims that the exclusion of this evidence deprived him of evidence essential to his defense.
[T]o determine whether a defendant was unconstitutionally denied his or her right to present relevant evidence, we must balance the importance of the evidence to the defense against the interests the state has in excluding the evidence.
Richmond v. Embry, 122 F.3d 866, 872 (10th Cir.1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1065, 140 L.Ed.2d 126 (1998).
To establish a violation of ... due process, a defendant must show a denial of fundamental fairness.... It is the materiality of the excluded evidence to the presentation of the defense that determines whether a petitioner has been deprived of a fundamentally fair trial. Evidence is material if its suppression might have affected the outcome. In other words, material evidence is that which is exculpatory — evidence that if admitted would create rea[904]*904sonable doubt that did not exist without the evidence.
Ellis v. Mullin, 326 F.3d 1122, 1128 (10th Cir.2002), cert. denied, — U.S. -, 124 S.Ct. 430, 157 L.Ed.2d 331 (2003)(quoting Richmond, 122 F.3d at 872).
¶ 50 In Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), the United States Supreme Court held that the exclusion of evidence which bears “persuasive assurances of trustworthiness” may not be excluded based on a mechanistic application of the rules of evidence when that evidence is critical to a defendant’s case.
¶ 51 The Court in Chambers expressly stated that the ruling was based on the facts and circumstances of the Chambers case and the rule did nothing to dimmish the ability of States to establish their own criminal rules and procedures. Id.
¶ 52 In Chambers, the appellant was not allowed to impeach his own witness (who had confessed to the crime and later recanted), nor was he allowed to call witness that would say that the witness confessed to them. Unlike Chambers, in this case, Primeaux did not call Davis as a witness because he was unavailable, so he attempted to introduce Davis’s statements to police.
¶ 53 The State has an interest in preventing wholly unreliable and possibly perjured evidence from being introduced at trial. See Chambers, 93 S.Ct. at 1048. Pri-meaux admits that Davis’s statements bear no assurances of trustworthiness. The statements were made after detectives lead him down a golden path of leading questions and interrogation. Davis, as an incompetent individual, was willing to tell the police exactly what they placed in his mouth.1 Davis’s statements do not meet the “persuasive assurances of trustworthiness” standard that must be met in order to overcome evidentia-ry rules excluding such evidence.
¶ 54 Furthermore, there is no indication that Davis’s statement would create a reasonable doubt where none existed before. Therefore, the trial court correctly concluded that the statements were inadmissible. Pri-meaux’s due process rights were not violated by the trial court’s ruling.
¶ 55 In a proposition relating to Randy Davis as a possible suspect in this crime, proposition four, Primeaux complains that the State introduced misleading testimony of Detective Steiber. The State asked Steiber if he knew of any piece of physical evidence or statements made to third parties that would tie Randy Davis to what happened to the victims. Steiber answered, “absolutely none.” This answer came during redirect examination. Primeaux did not object to the testimony, nor did he re-cross-examine Steiber on this answer. Primeaux now claims that the testimony amounted to State sponsored perjury, which deprived him of constitutional rights. Because there was no contemporaneous objection at trial, we review for plain error only. See Simpson v. State, 1994 OK CR 40, ¶ 10, 876 P.2d 690, 694.
¶ 56 Steiber was the lead detective on this case. During cross-examination, Primeaux was able to elicit testimony that Randy Davis was arrested as a suspect in this case. He was able to elicit testimony that probable cause had to be established before Randy Davis was arrested. It was established that no warrant was obtained but that someone in law enforcement had probable cause to arrest him. Testimony was also elicited that Davis made statements to the police and by the time of the last statement he was under arrest for the crime. Testimony was elicited that Randy Davis was charged with this crime.
¶ 57 Taken in context the detective’s answer may well have been correct. Davis made statements to the investigating police, but he made no statements to “third parties” when defined as parties not involved in a transaction (or interrogation). Moreover, Steiber, at the time of trial, may well have believed that Randy Davis’s statements were not reliable or trustworthy, thus his opinion [905]*905that there was no credible evidence linking Davis to the crime. There was no plain error here.
C.
¶ 58 The State read the preliminary hearing testimony of Billy Roberson to the jury at trial. Prior to this a hearing was held to determine if Billy Roberson was unavailable so that his preliminary hearing testimony could be used. In proposition six, Primeaux argues that the trial court’s finding that Roberson was unavailable was error and that that the preliminary hearing transcript does not bear a “sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior testimony.”
To introduce a witness’s prior testimony, the State must prove both 1) the witness’s actual unavailability despite good faith efforts and due diligence to secure the witness’s presence, and 2) that the prior testimony bears sufficient indicia of reliability to allow its admission at trial. The record must contain testimony regarding the State’s efforts to find a witness. LaFevers complains that the State’s efforts here were not enough and claims the State was required to issue a material witness warrant and out-of-state subpoena to Madden’s last known address. To the contrary, this Court has held those actions constitute due diligence but has not required them.
[footnotes and citations omitted] LaFevers v. State, 1995 OK CR 26, ¶ 27, 897 P.2d 292, 304-05, cert. denied, 516 U.S. 1095, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996).
¶ 59 The record clearly indicates that Roberson was absent from trial. Primeaux attacks the State’s “due diligence” in seeking his attendance. Roberson was charged as an accessory to this murder and he had a deal that required him to testify. The prosecutor’s office last met with Roberson prior to a trial date in August 2001. (This trial started on February 7, 2002). Roberson had appeared at all of his required court dates, bond hearings and meetings.
¶ 60 Three weeks prior to this trial, the prosecutor’s office contacted Roberson’s attorney, but the attorney could not contact Roberson. A subpoena was issued for Roberson, but the members of the sheriffs office could not locate Roberson to serve the subpoena. Roberson had a meeting with the prosecutor scheduled three weeks prior to trial, but Roberson did not appear.
¶ 61 A detective with the Ponca City police department tried to locate Roberson by contacting Roberson’s family members and people he knew that might have knowledge of his whereabouts. Investigators went to Tulsa and contacted several people with whom he had reportedly been living.
¶ 62 On January 29th, a material witness warrant was issued for Roberson. Roberson could not be located before trial. Based on the facts presented to the trial court, the court did not abuse its discretion in ruling that Roberson was unavailable.
¶ 63 Primeaux claims, because Roberson was the only person to testify that he threw a knife into the lake after the murder, that his preliminary hearing testimony does not bear a “sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior testimony.”
¶ 64 The United States Supreme Court has held that, under similar circumstances, when a defendant is provided an opportunity to cross examine the witness and avails himself of that opportunity at a prior hearing, the confrontation clause is satisfied and a transcript of the prior hearing is admissible. Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). We have held that this procedure is proper. See Howell v. State, 1994 OK CR 62, ¶ 18, 882 P.2d 1086, 1091, cert. denied, 514 U.S. 1113, 115 S.Ct. 1968, 131 L.Ed.2d 858 (1995).
¶ 65 Roberson’s “testimony was given under circumstances which closely approximated those of a typical trial. His testimony was made under oath and in a truth-inducing courtroom atmosphere.” Bernay v. State, 1999 OK CR 37, ¶ 17, 989 P.2d 998, 1007, cert. denied, 531 U.S. 834, 121 S.Ct. 92, 148 L.Ed.2d 52 (2000). The trial court did not abuse its discretion in allowing the prelimi[906]*906nary hearing testimony of Roberson to be read during the trial.
IY. FIRST STAGE INSTRUCTIONS
¶ 66 Primeaux attacks the instructions given to the jury in regards to the elements of First Degree Felony Murder in proposition two. These instructions follow the Information filed in this case, which Pri-meaux also attacks, in this proposition.
¶ 67 Primeaux was charged with two counts of Firsb-Degree Murder. Each count alleged alternative theories of First-Degree Murder. The Information regarding the “felony murder” allegations is as follows:
On or about the 5th day of July, 2000, and in the county and stage aforesaid, the defendant EDWARD BRUCE PRIMEAUX, committed the crime of MURDER IN THE FIRST DEGREE, a felony, in violation of 21 O.S.Supp.1996 § 701.7(A) by knowingly, intentionally and unlawfully killing Warren Littlecook by means of repeatedly cutting, slashing, and stabbing him with a knife while EDWARD BRUCE PRIMEAUX was engaged in committing the crime of Robbery by Force, to wit: by robbing Warren Littlecook by wrongfully taking and carrying away money that belonged to and was in the possession of Warren Littlecook from his person or immediate presence, without his consent and against his will, by means of a knife that EDWARD BRUCE PRIMEAUX used against warren Littlecook to overcome his resistance and rob him of the money, contrary to the from and the statute in such cases made and provided and against the peace and dignity of the State of Oklahoma.
Primeaux made no objection to the Information at the district court level. Therefore, we review for plain error only. Tilley v. State, 1998 OK CR 43, ¶ 4, 963 P.2d 607, 610. The elements of Robbery with a Dangerous Weapon are:
1. wrongful
2. taking
3. carrying away
4. personal property
5. of another
6. from the person/(the immediate presence) of another
7. by force/fear
8. through use of a (dangerous weapon).
21 O.S.Supp.1999, § 801, See OUJI-CR (2d) 4-144. The elements of Robbery by Force contain the first seven elements outlined above but not the eighth element. 21 O.S. 1991, § 791, See OUJI-CR (2d) 4-141. (First Degree Robbery requires that there be immediate force or fear of immediate force).
¶ 68 In closely looking at the Information, it is clear that while it states Robbery by Force, the language contains all of the elements of Robbery with a Dangerous Weapon. The question to be addressed is whether the Information gives the defendant notice of the charges against him and apprises him of what he must defend against at trial. Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986, cert,. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997)
¶ 69 Primeaux argues, in his reply brief, that Robbery by Force (or fear) can be committed with the use of a knife so there is no clear indication that the State intended to charge Robbery with a Dangerous Weapon. However, from the very beginning of this case, it is clear that the State intended to charge Primeaux with first-degree murder, 21 O.S.Supp.1999, § 701.7, under alternative theories of malice murder and felony murder.
¶ 70 It is the use of a knife that makes the underlying crime robbery with a dangerous weapon. Even though the State may charge Robbery by Force, even if a knife is used, it is clear here that the State intended the underlying felony to be the enumerated felony of Robbery with a Dangerous Weapon. The Information recites the Firsb-Degree murder statute. The First-Degree Murder statute clearly indicates that the underlying robbery must be robbery with a dangerous weapon (it has been unchanged for many years). Clearly, the Information is sufficient to give the defendant notice. Therefore, there is no plain error here.
¶ 71 The trial court, followed the Information and instructed the jury that the [907]*907underlying felony was Robbery by Force, thereby omitting the required element of “through the use of a dangerous weapon.” The elements of Robbery by Force were given, which contain all of the elements of Robbery with a Dangerous Weapon except for the dangerous weapon requirement.
¶ 72 Primeaux made no objections to the Instructions. Therefore, we must limit our review for plain error only. Plain error arises from those “errors affecting substantial rights although they were not brought to the attention of the court.” Jones v. State, 1989 OK CR 7, ¶ 8, 772 P.2d 922, 925, quoting 12 O.S.1981, § 2104(D), overruled on other grounds in Omalza v. State, 1995 OK CR 80, 911 P.2d 286; Simpson, 1994 OK CR 40, ¶ 10, 876 P.2d at 694. Plain error has also “been defined as an error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense.” Simpson, 1994 OK CR 40, ¶ 23, 876 P.2d at 698.
¶ 73 We have found that this type of instructional error rises to the level of plain error because it deprives a defendant of a substantial right. See Roberts v. State, 2001 OK CR 14, ¶¶ 16-17, 29 P.3d 583, 588-89. In RobeHs, the trial court added a seventh element to first-degree burglary of “by going through an unlocked door.” This Court reasoned that the added element negated the defense of consent, as the defendant asserted that the victim had consented to the entry through an unlocked door. This Court reversed the ease because the element was a contested element in the case. Id.
¶ 74 In other cases, this Court has found fundamental error (now known as plain error) and reversible error in the failure to instruct on an element or in the failure to properly define an element of the offense.2 A close analysis of these cases reveals that the elements, which were left out or ill-defined, were contested at trial or formed the crux of the crime.
¶ 75 In other cases, mainly larceny cases where a specific value has to be reached before a conviction can be had, this Court has held that misinstruction on the value element can be harmless. In Johnson v. State, 1986 OK CR 156, ¶ 6, 727 P.2d 965, 968, this Court held that an instruction stating that for grand larceny the value of the item taken must exceed twenty dollars when in fact the law at the time required a value exceeding fifty dollars was harmless error because the evidence clearly indicated that the value of the items taken were well over fifty dollars. Johnson, 727 P.2d at 967-68.
¶ 76 In Wofford v. State, 1982 OK CR 83, 646 P.2d 1300, this Court held that an instruction on intent which stated that “a person is presumed to intend the natural, probable and usual consequences of his act” was error but harmless. This Court in Wofford reasoned that the evidence of intent was established by overwhelming evidence. We find, in the present case, that the failure to include every element of the underlying felony amounted to plain error.
¶ 77 Even though we have found plain error in the instruction, plain error does not, ipso facto, require reversal. Simpson, 1994 OK CR 40, ¶ 12, 876 P.2d at 695. Only structural errors, i.e. defects that affect the framework within which the trial proceeds, rather than simply an error in the trial process itself, require reversal regardless of the effect on the outcome. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
¶ 78 Structural errors have only been found in limited cases: a total deprivation of the right to counsel; the lack of an impartial trial judge; unlawful exclusion of grand jurors of defendant’s race; denial of the right to self-representation; denial of the right to a public trial; and erroneous reasonable doubt instructions to a jury. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
¶ 79 Reversible error is limited by 20 O.S. 2001, 3001.1:
[908]*908No 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.
¶ 80 What makes this issue so important is the fact that, while alternative theories of murder were charged, the jury verdict form does not specify under which theory the defendant was found guilty. The jury could have found him guilty of malice murder or felony murder (which Primeaux claims is infirm). Primeaux claims that the jury verdict reflects that he was convicted of either first-degree malice murder or second-degree felony murder because of the faulty first-degree felony murder instructions.
¶ 81 The United States Supreme Court has recently decided a case where an instruction was given which omitted an element of the offense. In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999), the Court held that an instruction that omits an element of an offense may be subject to the harmless error doctrine. Ned-er is a federal mail fraud, wire fraud, bank fraud and filing false tax returns case. One of the elements in each count is that false statements must be material. However, the trial court instructed the jury not to consider the materiality of any false statements.
¶82 The inquiry is whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. Neder, 527 U.S. at 15, 18, 119 S.Ct. at 1836-38.
¶ 83 The Court started from the premise that “most constitutional errors can be harmless.” Id. 527 U.S. at 9, 119 S.Ct. at 1833, quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Id., quoting Bose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
¶ 84 The Supreme Court had decided an earlier case where the trial court made the determination of materiality in a perjury prosecution. Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). In that case, the Court determined that, absent an objection at trial, they would review for plain error only. The Court determined that “the error did not warrant correction in light of the ‘overwhelming and uncontroverted’ evidence supporting materiality.” Johnson, 520 U.S. at 470, 117 S.Ct. at 1544. See Neder, 527 U.S. at 9, 119 S.Ct at 1833-34.
¶ 85 The Court concluded that the Johnson decision countered “the argument that the omission of an element will always render a trial unfair.” Neder, 119 S.Ct. at 1834. The Court found that:
Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder’s defense against the tax charges. Of course, the court erroneously failed to charge the jury on the element of materiality, but that error did not render Neder’s trial “fundamentally unfair,” as that term is used in our cases.
Id. The Supreme Court stated that “[t]he evidence supporting materiality was so overwhelming, in fact, that Neder did not argue to the jury — and does not argue here — that his false statements of income could be found immaterial.” Id. 119 S.Ct. at 1837.
¶86 Neder argued that “to rely on overwhelming record evidence of guilt that the jury did not actually consider, he contends would be to dispense with trial by jury and allow judges to direct a guilty verdict on an element of the offense.” Id. at 1837-38.
¶ 87 The test was set forth in this manner: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error? To set a barrier so high that it could never be surmounted would justify the very criti[909]*909cism that spawned the harmless-error doctrine in the first place: ‘Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.’ R. Traynor, The Riddle of Harmless Error 50 (1970)
Id. at 1838.
¶ 88 The jury in the present case had sufficient evidence to conclude that Primeaux committed the crime of malice murder or felony murder and the underlying crime of robbery with a dangerous weapon. The missing element of “with the use of a knife” was not contested in this ease, and there was overwhelming evidence that a knife was used in this crime. Primeaux, although he testified that he did not do it, testified that he saw the person stabbing Julia Bear with a knife.
¶ 89 Because the evidence of the use of a knife was overwhelming and uncontested, we find that the failure to include, in the instructions, the element of “with the use of a knife” was harmless beyond a reasonable doubt. The fact that alternative theories were charged, and the jury was not required to indicate the theory upon which it based its decision does not change our decision. The evidence in this case supported both theories beyond a reasonable doubt.3
V. SECOND STAGE ISSUES
¶ 90 Primeaux argues, in proposition seven, that the prosecutor’s argument based on the uniform jury instructions defining mitigating evidence violated his constitutional rights. Initially, we note that Pri-meaux has waived all but review for plain error on this issue because he failed to object to the argument of the prosecutor. See Simpson, 1994 OK CR 40, ¶ 10, 876 P.2d at 694.
¶ 91 The prosecutor asked to jury to review instruction number 11, which states in part “mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame.” The prosecutor told the jury that none of the mitigating evidence “extenuate what he. did, that to the slightest degree reduce his moral culpability or his blame.” During the second closing, the prosecutor stated, “I simply suggest to you that that in no way mitigates what he has done and what justice calls for in this case.”
¶ 92 The quoted portion of the instruction, OUJI CR-2d 4-78, has been upheld by this Court. Williams v. State, 2001 OK CR 9, ¶¶ 108-09, 22 P.3d 702-727, cert. denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002).
¶ 93 In Frederick v. State, 2001 OK CR 34, ¶ 162, 37 P.3d 908, 949, this Court held that “the prosecutor is entitled to argue that the mitigation factors did not ‘in any way [reduce Appellant’s] moral culpability or blame.’ ” In Frederick, we held that the comment did not rise to the level of plain error.
¶ 94 Primeaux argues that the instruction, combined with the argument narrows the United States Supreme Court’s definition of mitigating evidence: any evidence that a sentencing body could reasonably find warrants a sentence less than death. Citing, McKoy v. North Carolina, 494 U.S. 433, 441, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369 (1990).
¶ 95 The trial court in this case gave all of the required instructions on mitigating evidence, including instructions that the jury was the sole determiner of mitigating factors and that even if the mitigating factors were outweighed by the aggravating circum[910]*910stances, they could still impose a penalty less than death.
¶ 96 There is no plain error here. The argument did not cause the jury to impose a sentence not supported by the evidence.
¶ 97 In proposition ten Primeaux makes what amounts to a philosophical argument against the death penalty. In proposition eleven, Primeaux urges this Court to reexamine our holdings on several issues relating to the death penalty procedure previously approved by this court.4 We find no reason to revisit these issues.
¶ 98 In proposition ten, Primeaux implies that he could actually be innocent, and the possibility exists that an innocent man may be executed. Primeaux also cites Oklahoma’s rate of executions and death row population as evidence that something is wrong with the system. Primeaux also re[911]*911fers to “concerns about the execution of the innocent.” However, Primeaux cannot cite concrete statistics that show that innocent people are being executed, but Primeaux cites several reasons why those statistics don’t exist — one of which is the truth dies with the victim and the executed individual.
¶ 99 Primeaux has not shown that he is an innocent victim being sent to his death by this State. Numerous constitutional safeguards along the way protect Primeaux. Furthermore, our duly elected legislature has seen fit to utilize the penalty of death for murders containing aggravating circumstances. This Court could cite numerous philosophical reasons why the death penalty is an appropriate punishment in this case; however, we leave that argument to the legislature and the people of the State of Oklahoma. The proper constitutional safeguards been followed in the trial of Primeaux. The death penalty is the appropriate punishment in this case.
VI. VICTIM IMPACT EVIDENCE
¶ 100 In Proposition nine, Primeaux complains that the statements by Louise Roy and Sheree Counselor contained statements not related to evidence of victim impact.
¶ 101 Three victim impact statements were read to the jury. One of the statements was from Fannie Deere, victim Littlecook’s sister, read by Ed Littlecook. There was no objection to this statement. Sheree Counselor read two other statements, one was from Louise Roy, victim Bear’s sister and the other was from Sheree Counselor, Bear’s daughter. Primeaux raised objections to the victim impact evidence just prior to the introduction of the statements citing his written motion.
¶ 102 Primeaux specifically objected to portions of Counselor’s statement that was allowed to be read by the trial court. This statement was “I have had nightmares several times. I hear- her voice in my head, ‘help me, Sheree, they’re hurting me.’ ”
¶ 103 Primeaux now complains about this language in Counselor’s statement, as well as other portions of the statement. Primeaux also complains about all of Roy’s statement except for the last paragraph.
¶ 104 We have previously held that victim impact evidence, which meets the narrowly defined definition, is relevant in a first-degree murder prosecution. Cargle v. State, 1995 OK CR 77, ¶ 75, 909 P.2d 806, 828, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). Cargle was decided after this State’s legislature adopted “victim impact” statutes in response to the United States Supreme Court’s decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
[V]ictim impact evidence should be restricted to those unique characteristics which define the' individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and physically impacted on members of the victim’s immediate family.
Cargle, 1995 OK CR 77, ¶ 75, 909 P.2d at 828. First, we find that the statements by Counselor properly show the emotional and psychological impact on her due to the death of her mother. See Le v. State, 1997 OK CR 55, ¶ 39, 947 P.2d 535, 551, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). Therefore, the statement, which was objected to at trial, was properly admitted.
¶ 105 Primeaux complains that the remaining statements deal with the life of Julia Bear and not the impact of the Bear’s death. Primeaux made a general objection to the victim impact statements in a written motion stating that the statements were substantially more prejudicial than probative. The trial court recognized the written motion during the hearing on the motion and stated that further argument was not necessary. This was sufficient to preserve this issue.
¶ 106 Roy’s statement is as follows:
This is from my Aunt Louise Roy. My sister was disabled and wheelchair bound. There wasn’t very much she could do. Her and her companion lived on a meager income and stayed home most of the time. Once in a great while she would go to bingo or attend the pow-wow.
When she came to visit, we would all enjoy her company. All of the children loved [912]*912her. As sisters, we were always very close. She was younger than me, so I used to always watch over her when we were growing up. In adulthood, I moved to California and she later came to stay with me. My spouse was in the U.S. Navy and would leave on a nine-month tour overseas. Living in another state and far from home, I was unbearably lonesome. She would come and stay with me to keep me company and keep from me [sic] being so lonesome. I knew if I ever needed her company, she was always near. Even now, I cannot believe she is gone. I find it unbearable to think of all the hurt she had to go through.
She was a loving person. All of the grandchildren in the family loved her. They cannot understand why she is gone. This is the ultimate hurt.
Her death has left a void in my life and now I am afraid for my life. I now cannot watch movies with any kind of violence in it. After my sister’s death, I was devastated, and a lot of joy has gone from my life.
Bruce Primeaux should get the death penalty.
Respectfully, Louise Roy.
¶ 107 This statement was not substantially more prejudicial than probative. The statement gives a brief glimpse into the life of the victim and provides a picture “of those unique characteristics which define the individual who has died.” Cargle. There was no error in the introduction of this statement.
¶ 108 The statement of Counselor goes into more detail about Bear’s life. She states that Bear enjoyed reading and going to bingo and getting dressed up to go to bingo. They talked on the phone once a day and Bear liked to play cards. Bear was kind and gentle and was in a wheel chair the last years of her life. “She was my confidant, my best friend.”
¶ 109 These details about Bear’s life were also not substantially more prejudicial than probative. The statement was limited to the “unique characteristics which define the individual who has died.” There is no error here.
VII. CUMULATIVE ERROR
¶ 110 Primeaux urges us to consider his proposed errors in a cumulative fashion in proposition twelve, if we find that none of them individually necessitate reversal of his conviction and sentence. We have reviewed the case to determine the effect, if any, of Primeaux’s alleged accumulation . of error. We find, even viewed in a cumulative fashion, the errors we identified do not require relief. Woods v. State, 1984 OK CR 24, ¶ 10, 674 P.2d 1150, 1154.
VIII. MANDATORY SENTENCE REVIEW.
¶ 111 Title 21 O.S.1991, § 701.13, requires this Court to determine “[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance.” Sufficient evidence existed to support the finding of the statutory aggravating circumstances. After reviewing the entire record in this case, we find that the sentence of death was not imposed because of any arbitrary factor, passion, or prejudice. The facts of this case and the overwhelming evidence of the aggravating circumstances simply warranted the penalty of death.
¶ 112 We find no error warranting reversal of Primeaux’s two convictions and sentences of death for two counts of first-degree murder, therefore, the Judgments and Sentences of the trial court are, hereby, AFFIRMED.
JOHNSON, P.J. and LUMPKIN, J.: concur.
STRUBHAR, J.: concurs in results.
CHAPEL, J.: dissents.