The opinion
A. JOHNSON, Presiding Judge,
SPECIALLY CONCURRING.
T1 I agree with the decision to abandon the merger doctrine as a limitation to second degree felony murder. The purpose of the merger limitation-to bring fairness to the potential harshness of the felony murder rule-is a sound one. A fair and consistent application of this particular limitation, however, is difficult, In Quillen v. State, 2007 OK CR 22 , 163 P.3d 587 , this Court extended the application of the merger doctrine to the non-assaultive crime of felony child neglect in an apparent attempt to achieve a fair and appropriate balance between moral eulpability and criminal liability in that case. This broad application of the merger limitation and the difficulty of its application in Quillen lead me to reexamine the continued validity of the merger limitation in this case. There may be future cases that test the wisdom of this decision. Nevertheless, I am confident that this Court's expressed commitment to maintaining the distinction between the different degrees and forms of murder, manslaughter and other homicide crimes will resolve any issues of unfair over-charging and undeserved convictions and sentences.
C. JOHNSON, Judge,
SPECIALLY CONCURRING.
1 1 It is with some hesitation that I concur in the Court's decision in this case to abandon the merger doctrine. The merger doe-trine operates to preserve the different degrees of homicide crimes. I understand the *971 position of the majority regarding the historical context in which the merger doctrine developed, but I do not agree that the problem the merger doctrine seeks to remedy has been eliminated by the legislative classification of differing degrees of homicide. Second Degree Felony Murder allows a person who commits any felony other than one enumerated for First Degree Felony Murder, from which a death results that is not excusable or justified, to be prosecuted for Second Degree Felony Murder. The prosecutors make the determination of which erime to charge and the abandonment of the merger doctrine allows them, under these cireum-stances, unrestrained discretion to charge the greater offense of Second Degree Felony Murder to the exclusion of lesser degrees of homicide. Thus, in the absence of the merger doctrine, it will be even more important that district courts give instructions on lesser forms of homicide where such instructions are supported by the evidence as is required by Shrum v. State, 1999 OK CR 41 , 991 P.2d 1032 .