An appeal from the District Court of Canadian County; James D. Bednar, Judge.

Glen Burton Ake, a/k/a Johnny Vandenover, appellant, was convicted of two counts of Murder in the First Degree and two counts of Shooting with Intent to Kill in the District Court of Canadian County, Oklahoma, Case Nos. CRF-79-302, CRF-79-303, CRF-79-304, CRF-79-305. He was sentenced to death for each murder count and to 500 years' imprisonment for each shooting with intent to kill count, and appeals. AFFIRMED.

Richard D. Strubhar, Reta M. Strubhar, Yukon, for appellant.

Jan Eric Cartwright, Atty. Gen., Chief, Appellate Crim. Div., Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

¶1 The appellant, Glen Burton Ake, also known as Johnny Vandenover, was convicted by a jury in Canadian County, Oklahoma, of two counts of Murder in the First Degree and two counts of Shooting with Intent to Kill. He was sentenced to death for each of the murder charges, and sentenced to a five-hundred year prison term for each of the shooting with intent to kill counts. He has perfected a timely appeal to this Court.

¶2 On the evening of October 15, 1979, in search of a suitable house to burgle, the appellant and his accomplice, Steven Keith Hatch, a/k/a Steve Lisenbee, drove their borrowed car to the rural home of Reverend and Mrs. Richard Douglass. The appellant gained entrance into the Douglass' home under the pretense that he was lost and needed help finding his way. After an initial conversation with sixteen-year-old Brooks Douglass in the entrance way of the Douglass' home, the appellant returned to his car, supposedly to get a telephone number. The appellant thereupon re-entered the house and produced a firearm. He was joined shortly afterwards by his accomplice, who also was armed.

¶3 The appellant and his accomplice ransacked the Douglass' home as they held the family at gunpoint. They bound and gagged Reverend Douglass, Mrs. Douglass and Brooks Douglass, and forced them to lie in the living room floor.

¶4 The two men then took turns attempting to rape twelve-year-old Leslie Douglass in a nearby bedroom. Having failed in their attempts, they bound and gagged Leslie, and forced her to lie in the living room floor with the other members of her family.

¶5 Throughout the episode, the appellant and his accomplice repeatedly threatened to kill all the members of the Douglass family, and covered their heads with articles of clothing as they lay helpless on the floor.

¶6 The appellant instructed his accomplice to go outside, turn the car around, and "listen for the sound." The accomplice left the house as he was told. The appellant then shot Reverend Douglass and Leslie each twice with a .357 magnum pistol, Mrs. Douglass once, and Brooks once; and fled.

¶7 Mrs. Douglass died almost immediately as a result of the gunshot wound. Reverend Douglass' death was caused by a combination of the gunshots he received, and strangulation from the manner in which he was bound. Leslie and Brooks managed to untie themselves and drive to the nearby home of a doctor.

¶8 The appellant and his accomplice were apprehended in Colorado following a month-long crime spree which took them through Arkansas, Louisiana, Texas, and much of the Western half of the United States.

¶9 Subsequent to their extradition to Oklahoma, Leslie Douglass identified the appellant in a lineup. The appellant confessed to the shootings.

¶10 The error first alleged by the appellant is that the trial court wrongfully refused to grant a change of venue. He argues the pre-trial publicity concerning the crime and events occurring subsequent thereto, including the fact that the appellant's accomplice had earlier been found guilty of the crimes at issue and sentenced to death, was of such an extent as to bias the community against him, thereby denying him the benefit of an impartial jury.

¶11 The appellant failed to comply with the statutory procedure for change of venue mandated by 22 O.S. 1981 § 561 [22-561]. The motion was not verified by affidavit, nor was it supported by the affidavits of at least three credible persons residing within the county. Thus, the motion not having been properly before the trial court, is likewise not properly before this Court. See, Irvin v. State,

¶12 The appellant next alleges that the trial court erred by not granting a second preliminary hearing in this case. The appellant's preliminary hearing was held conjointly with his accomplice on January 21, 1980. He was ejected from his February 14, 1980, arraignment for disruptive behavior. One week later, the judge who presided at the arraignment, on his own motion, ordered the appellant to undergo psychiatric evaluation. On April 10, 1980, a special sanity hearing was held at which the appellant was found to be mentally ill and ordered committed to Eastern State Mental Hospital for observation and treatment. He was subsequently adjudged competent to stand trial, and the proceedings against him reinstated on May 27, 1980.

¶13 The appellant filed a motion requesting a second preliminary hearing. He argued that he was unable to assist his attorneys at the January 21, 1980, preliminary hearing because of his lack of competency. The motion was overruled.

¶14 The appellant announced ready at the preliminary hearing. No attempt was made to raise the issue of his ability to assist counsel. We cannot presume, absent any supporting evidence, that the appellant was incompetent at that time. A review of the transcript of the preliminary hearing reveals that the appellant did indeed profit from the preliminary hearing. Counsel for the appellant thoroughly and adequately cross-examined witnesses offered by the State. He raised the issue through cross-examination of the appellant's state of mind during the criminal episode, and challenged one of the surviving victims' identification of the appellant as the man who shot him. The appellant also put on witnesses and obtained copies of police and medical reports.

¶15 The appellant failed to preserve the issue in the motion for a new trial. Had any error occurred, it was thereby waived. Stevenson v. State,

¶16 In addition, the appellant has not shown he was prejudiced at trial by the failure to grant the second preliminary hearing. There was no fundamental error. We conclude that the judge did not abuse his discretion.

¶17 The appellant alleges in his next assignment of error that a prospective juror was dismissed in violation of Witherspoon v. Illinois,

¶18 We find no error in this matter. The form and substance of the questions were very similar to those we approved in Chaney v. State,

¶19 In addition, the appellant did not examine the prospective juror, did not object when she was excused, and did not preserve the error in the motion for a new trial. Thus, had any error occurred, it was waived.

¶20 The appellant's ninth assignment of error is that he, as an indigent defendant, should have been provided the services of a court-appointed psychiatrist and a court-appointed investigator as incident to his constitutional rights to effective assistance of counsel and availability of compulsory process for obtaining witnesses.

¶21 We have held numerous times that, the unique nature of capital cases notwithstanding, the State does not have the responsibility of providing such services to indigents charged with capital crimes.

¶22 In addition, the argument was not preserved in the motion for new trial. It was thereby waived.

¶23 The appellant's next two allegations of error concern the fact that he was sustained on 600 milligrams of Thorazine per day throughout his trial. The medication was administered pursuant to the orders of the doctors who treated him at Eastern State Hospital at Vinita. Dr. R.D. Garcia informed Judge Martin (who was originally to preside over the case) by letter dated May 22, 1980, that the appellant was competent to stand trial, and could assist his attorney, provided he continue taking the prescribed medication.

¶24 The appellant remained mute throughout the trial. He refused to converse with his attorneys, and stared straight ahead during both stages of the proceedings. He argues that, because of the effect of the Thorazine, he was not actually present at his trial; and thereby denied his statutory and constitutional rights. Secondly, he argues that, due to his conduct at trial, the trial court should have halted the proceedings and impaneled a jury to evaluate his present sanity.

¶25 Both of these issues boil down to the question of whether the Thorazine medication rendered him unable to understand the proceedings against him and affected his ability to assist counsel. Beck v. State,

¶26 Dr. Garcia testified that he had diagnosed the appellant's condition as schizophrenia of the paranoid type, which necessitated maintenance on the Thorazine to stabilize his personality. Dr. Garcia further testified that, although the dosage of Thorazine which the appellant was taking would sedate a normal individual, it had a theraputic effect of eliminating the symptoms of the appellant's condition. Without the benefit of the medication, the appellant could revert to a violent and dangerous state.

¶27 In the letter to Judge Martin, referred to above, Dr. Garcia stated the appellant, with the benefit of medication, was competent to stand trial and assist his attorneys in his defense. The appellant remained on his prescribed medication, and there is no evidence that any change in his competency occurred in the month between his release from Vinita and his trial. Thus, we have no reason to believe the appellant's behavior was caused by any factor other than his own volition.

¶28 The appellant additionally asserts that, according to Peters v. State,

¶29 Likewise, we disagree with the contention that the appellant should have been treated as an insane person, incapable of standing trial, because of the necessity of Thorazine treatment to "normalize" him. Psychopharmaceutical restoration of persons to a state of normality is not an uncommon practice in modern society. If a defendant may be rendered competent to assist in his defense through the use of medication, it is in the best interests of justice to afford him a speedy trial. See, State v. Stacy, 556 S.W.2d 552 (Tenn.Cr. 1977); and cases cited therein. See also, State v. Jojola, 89 N.M. 489,

¶30 Concerning the trial court's failure to impanel a jury to determine the present sanity of the appellant, we note initially that the appellant's attorneys voluntarily withdrew the motion for trial on present sanity because the appellant had just been returned from Vinita, certified as competent to stand trial. Since the motion was withdrawn, the court obviously had no occasion to rule on it. We cannot say that the court was under a duty to raise the issue sua sponte. In light of the facts that the appellant had been released from Vinita one month before, certified as competent to stand trial, and that he was maintaining his medication; the trial court had no good reason to order a trial on the appellant's present sanity. Although the appellant's refusal to communicate with his attorneys was brought to the attention of the trial judge, and although the appellant's demeanor was observable, it does not necessarily follow that the trial court was bound to deduce from such behavior that another hearing was needed.

¶31 According to the statute authorizing trials on present sanity, a doubt must arise as to the defendant's sanity. 22 O.S. 1981 § 1162 [22-1162]. The doubt referred to in the statute has been interpreted to be doubt which must arise in the trial court's mind after an evaluation of the facts, information concerning the defendant's insanity and motive. Beck v. State, supra. Reynolds v. State,

¶32 The appellant's next two allegations of error concern the confession he gave to the police after his arrest. The confession was forty-four (44) typewritten pages in length. It contained detailed descriptions of the shootings of the Douglass family, as well as events which occurred before and after.

¶33 Initially, the appellant argues he was insane when he made the confession, thus it was involuntary. However, the appellant failed to establish any doubt of his sanity at the time the crime was committed. The sheriff who took the confession testified the appellant understood his rights, and voluntarily waived them. The confession was lucid and detailed. The appellant read the lengthy typewritten copy of the confession, corrected spelling errors and filled in missing details. Lastly, although the appellant was adjudged incompetent to stand trial approximately five months after the crime was committed, none of the psychologists who examined him could offer an opinion of the state of the appellant's mental condition prior to the time they observed him.

¶34 We are of the opinion the confession was knowingly and voluntarily given.

¶35 The appellant's second allegation concerning the confession stems from the fact that the trial court deleted parts of the confession, because it contained information of other crimes committed by the appellant and his accomplice subsequent to the Douglass shootings. The deleted confession contained blank spaces and blank pages. The appellant maintains that the confession, in its deleted form, was prejudicial.

¶36 This allegation of error was not preserved in the motion for new trial. It has thus not been properly preserved for appeal.

¶37 In the appellant's fifth assignment of error, he argues that numerous photographs were unduly prejudicial and should not have been admitted into evidence. A review of both the trial transcript and the exhibits before us in the record reveals that all but one of the photographs complained of were indeed excluded by the trial court pursuant to the appellant's objection. The photograph which was admitted over the appellant's objections portrayed the nature in which one of the victim's feet were bound. The photograph served to demonstrate how the appellant in this case rendered his victim helpless before he brutally murdered him. The photograph was not gruesome, and did not unfairly prejudice the appellant. The trial court did not abuse its discretion in admitting the picture.

¶38 Next, the appellant alleges the trial court erred by allowing Brooks and Leslie Douglass, the two surviving victims, to testify concerning the appellant and his cohort's attempt to rape Leslie. He additionally argues that the trial court erroneously failed to instruct the jury concerning the alleged other crimes.

¶39 The appellant failed to object to the testimony of which he now complains. Additionally, he failed to include it in the motion for new trial. The appellant has completely failed to bring the error, if any, to the attention of the trial court. As we stated in Burks v. State,

¶40 In addition, we hold that the admission of the testimony and the trial court's failure to give a limiting instruction was harmless. The evidence presented against the appellant in both stages of the trial was overwhelming. We are convinced that the jury would have rendered the same verdict and imposed the same sentences had the evidence not been presented, or had the instruction been given.

¶41 The appellant's twelfth and thirteenth allegations are that the prosecutor impassioned the jury with improper arguments in both stages of the trial.

¶42 The prosecutor stated numerous times in the closing argument of the first stage that there was "no doubt" the appellant was guilty. The prosecutor was permissibly arguing the State's conclusions based upon the evidence in the case.

¶43 The prosecutor in this case also stated that, "If we hadn't had these charges pending, he [the appellant] would have gone out on the street a free man." The statement was made in response to the appellant's argument that, if found to be insane, he would not be "turned loose." The prosecutor argued that the appellant had been sent to a mental hospital, treated and released. Thus, the gist of the prosecutor's argument was that the appellant would be, in effect, set free if found to be insane.

¶44 Although the prosecutor would have been better advised not to make such an argument, we do not find it of such magnitude to mandate modification or reversal.

¶45 The appellant additionally complains of remarks made by the prosecutor during the second stage of the trial. The appellant admits in his brief that no objections were made. After careful examination of the record, we can find no error which rises to the level of fundamental error.

¶46 The appellant's tenth assignment of error concerns a note from the jury in which it was requested that the testimony of Dr. R.D. Garcia, a psychologist who testified for the defense, be repeated. The trial court declined to have a transcript of the testimony sent to the jury. The appellant alleges error on two grounds; first, that the jurors were not brought into open court for consideration of the note, pursuant to 22 O.S. 1981 § 894 [22-894], and secondly that Dr. Garcia's testimony was not read to the jury.

¶47 The appellant failed to object to the jury's absence during the court's discussion of the note. In addition, he failed to properly preserve the arguments for appeal in the motion for new trial. Nonetheless, we note that the trial court replied to the jury's request in writing, and that counsel for both sides were given opportunity to object to both the form and substance of the note. As we stated in Boyd v. State,

¶48 In response to the appellant's second argument that the jury should have been allowed to rehear Dr. Garcia's testimony, we note that the decision to allow or disallow the jury's request lies within the discretion of the trial court. Jones v. State,

¶49 The appellant next alleges that the lack of air conditioning in the courthouse in which the trial and jury deliberations were conducted forced the jury to return the verdict without proper deliberation. The appellant has failed to cite, nor can we find, any evidence in the record to support such a contention. Although the courtroom may have been somewhat uncomfortable, there is no evidence that the jury failed to exercise utmost diligence in reaching its verdict. Indeed, upon having been given the opportunity to recess for the night, and wait until the following morning to begin deliberations in the second stage, the jury elected to remain and deliberate. The contention is clearly without merit.

¶50 In his fifteenth allegation of error, the appellant maintains that the verdict was against the clear weight of the evidence. He argues the jury should have returned a verdict of not guilty by reason of insanity.

¶51 In every case there is an initial presumption of sanity. This presumption remains until the defendant raises, by sufficient evidence, a reasonable doubt as to his sanity at the time of the crime. If the issue is so raised, the burden of proving the defendant's sanity beyond a reasonable doubt falls upon the State. Rogers v. State,

¶52 The appellant had no history of mental illness. When each of the three doctors who testified on behalf of the appellant was asked whether he had an opinion as to the appellant's ability to distinguish between right and wrong at the time of the shootings, each answered in the negative. They could only testify as to their opinions that the appellant was "mentally ill" several months after the crimes had occurred.

¶53 The appellant clearly failed to establish any reasonable doubt as to his sanity at the time the crimes were committed. The jury was properly instructed concerning the standard of sanity and the burden of proof. We cannot agree that the jury's verdict was against the weight of the evidence. Rogers, supra.

¶54 The appellant's eighteenth assignment of error is that the accumulation of errors alleged in the foregoing assignments of error mandates reversal in this case. We have held in the past that if a defendant's previous assignments of error are found to be without merit, the argument which asks that those previous allegations be considered collectively is likewise without merit. Brinlee v. State,

¶55 The appellant's seventeenth allegation of error is that the felony-murder doctrine is unconstitutional. This allegation is not properly before this Court, as it was not preserved in the motion for new trial. Turman v. State, supra.

¶56 The appellant argues in his nineteenth assignment of error that the statutory scheme of 21 O.S. 1981 § 701.11 [21-701.11] unconstitutionally shifts the burden of proving mitigating circumstances onto defendants in capital cases after aggravating circumstances are proven by the State.

¶57 We note initially that the issue is not properly before this Court, because it was not preserved in the motion for new trial. Turman v. State, supra. Nonetheless, due to the nature of the contention, we shall consider it.

¶58 In support of his contention, the appellant cites Mullaney v. Wilbur,

¶59 In the present case, the statute in question addresses the nature of the punishment to be imposed after the determination of guilt has been made. Thus, the considerations relevant to the guilt determination espoused in the cases cited by the appellant are inapplicable. The appellant was not required to produce any evidence in support of mitigation at all. However, since he chose to have the jury consider factors which he hoped to justify his appeal for leniency, it was incumbent upon him to prove their existence. The defendant is in the best position to know of and present evidence in mitigation. See, State v. Watson, 120 Ariz. 441,

¶60 Lastly, we review the sentences imposed upon the appellant as mandated by 21 O.S. 1981 § 701.13 [21-701.13].

¶61 We are of the opinion that the sentences were not imposed under the influence of passion, prejudice or any other arbitrary factor. Our discussion of the appellant's various allegations concerning this issue in the text of this opinion reveal that the appellant's sentences were imposed in accordance with the evidence presented, free from the taint of passion and prejudice. In addition, as previously discussed, the evidence against the appellant was overwhelming in both stages, and provide ample justification for the penalty imposed.

¶62 Likewise, we are of the opinion the evidence supports the finding of the aggravating circumstances. The jury found the aggravating circumstances justifying the imposition of the death penalty to be: 1) that the murder was especially heinous, atrocious or cruel; 2) that the murders were committed to avoid or prevent a lawful arrest or prosecution; and 3) that a probability existed that the appellant would commit criminal acts of violence that would constitute a continuing threat to society.

¶63 The appellant in this case invaded the sanctity of his victims' home, bound each one and forced them to lie in the floor. The appellant and his accomplice discussed killing the family, and made them promise not to call the police if allowed to live. Unheeded by Mrs. Douglass' plea for their lives, the appellant ruthlessly emptied a .357 magnum pistol into the bodies of the helpless victims before he fled their home. We believe the facts adequately support each of the three aggravating circumstances found by the jury.

¶64 Lastly, we find that the sentences of death are not excessive or disporportionate to those imposed in other cases. ⁶

¶65 We have also compared this case to other capital cases which have been modified to life or reversed for other reasons.

¶66 Having fully reviewed the record and arguments presented on appeal, we find no reason to interfere with the jury's decision. The judgments and sentences are AFFIRMED.

CORNISH and BRETT, JJ., concur.

Footnotes:

¹ The murder/shootings of the Douglass family attracted a significant amount of media attention in Oklahoma. Most, if not all, of the jurors in this case had been exposed to various forms of media accounts of the crimes and the events subsequent thereto. The appellant attempts to bolster his contention with the results of a poll conducted on behalf of his accomplice and himself, which indicated that forty-four percent of those surveyed believed the appellant to be guilty prior to his trial. Additionally, the appellant has provided this Court with a copy of an advertisement used by the Sheriff of Canadian County in his bid for re-election, which depicts the handcuffed appellant being escorted by that sheriff. The caption of the picture was, "Quality law enforcement takes a tough, dedicated professional — let's keep Lynn Stedman Sheriff."

It is not necessary that a juror be completely ignorant of the facts and circumstances surrounding a case. It is sufficient if the juror can disregard his/her own opinion and render a verdict based on the evidence presented. Irvin v. Dowd,

In addition, we note that the trial court did not rule on the motion to change venue until completion of the voir dire to determine the extent of the bias, if any, that existed in the minds of the veniremen. The appellant was afforded wide latitude in examination of the veniremen. This procedure afforded the appellant ample time to weed out unsatisfactory or biased jurors. Moreover, the appellant waived his last two peremptory challenges. Having done so, he cannot complain of juror bias on appeal. Carpitcher v. State, ² In regard to this matter, we note that the appellant focuses his argument in this allegation of error upon a statement made by the judge while denying the motion. At one point, the judge stated, "It [the preliminary hearing] is not designed as a deposition-type hearing for the defendant to make a great deal of discovery." Although the language of Beaird v. Ramey,

Additionally, we note that the judge did not base his ruling solely on this factor. Thus, the appellant's argument, while possessing some merit, gains him nothing.

³ The appellant's argument revolves around the following dialogue excerpted from the record:

THE COURT: This is a case in which the State of Oklahoma is seeking the death penalty, and I will ask you this question. In a case where the law and the evidence warrant, in a proper case, could you without doing violence to your conscience agree to a verdict imposing the death penalty?

MRS. WOLFE: No, sir, I could not.

THE COURT: All right. Let me ask you this. Knowing that the law provides for the death penalty in certain proper cases, and knowing that the State will ask you to bring back a verdict of death in this case, and considering your reservations about the death penalty, do you have such conscientious opinions as would prevent you from making an impartial decision as to whether the defendant is guilty or not guilty?

MRS. WOLFE: Sir, I could not impose the death penalty on anyone.

THE COURT: All right. I need to ask you one other question. If you found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree, and if under the evidence, facts, and circumstances of the case, the law would permit you to consider a sentence of death, are your reservations about the death penalty such that regardless of the law, the facts, and circumstances of the case, you still would not consider fairly the imposition of the death penalty?

MRS. WOLFE: No, Sir.

⁴ It is quite possible that the defense of insanity interposed by the appellant fostered such behavior on his part. Nonetheless, the jury was well aware of the fact that the appellant was being maintained on the Thorazine. The appellant was present throughout the trial, and his demeanor was readily discernable by the jurors. Notwithstanding the appellant's "abnormal" behavior at trial, the jury determined that he was sane.

⁵ One notable case contra to our holding is State v. Maryott, 6 Wash. App. 96, ⁶ Smith v. State, ⁷ Jones v. State,

U.S. Supreme Court

AKE v. OKLAHOMA, 470 U.S. 68 (1985)
470 U.S. 68

AKE v. OKLAHOMA
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA

No. 83-5424.

Argued November 7, 1984
Decided February 26, 1985

Petitioner, an indigent, was charged with first-degree murder and shooting with intent to kill. At his arraignment in an Oklahoma trial court, his behavior was so bizarre that the trial judge, sua sponte, ordered him to be examined by a psychiatrist. Shortly thereafter, the examining psychiatrist found petitioner to be incompetent to stand trial and suggested that he be committed. But six weeks later, after being committed to the state mental hospital, petitioner was found to be competent on the condition that he continue to be sedated within an antipsychotic drug.

The State then resumed proceedings, and at a pretrial conference petitioner's attorney informed the court that he would raise an insanity defense, and requested a psychiatric evaluation at state expense to determine petitioner's mental state at the time of the offense, claiming that he was entitled to such an evaluation by the Federal Constitution.

On the basis of United States ex rel. Smith v. Baldi, 344 U.S. 561 , the trial court denied petitioner's motion for such an evaluation. At the guilt phase of the ensuing trial, the examining psychiatrists testified that petitioner was dangerous to society, but there was no testimony as to his sanity at the time of the offense. The jury rejected the insanity defense, and petitioner was convicted on all counts.

At the sentencing proceeding, the State asked for the death penalty on the murder counts, relying on the examining psychiatrists' testimony to establish the likelihood of petitioner's future dangerous behavior. Petitioner had no expert witness to rebut this testimony or to give evidence in mitigation of his punishment, and he was sentenced to death. The Oklahoma Court of Criminal Appeals affirmed the convictions and sentences.

After rejecting, on the merits, petitioner's federal constitutional claim that, as an indigent defendant, he should have been provided the services of a court-appointed psychiatrist, the court ruled that petitioner had waived such claim by not repeating his request for a psychiatrist in his motion for a new trial.

Held:

1. This Court has jurisdiction to review this case. The Oklahoma Court of Criminal Appeals' holding that the federal constitutional claim to a court-appointed psychiatrist was waived depended on the court's federal-law ruling and consequently does not present an independent state ground for its decision. Pp. 74-75.

2. When a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one. Pp. 76-85.

(a) In determining whether, and under what conditions, a psychiatrist's participation is important enough to preparation of a defense to require the State to provide an indigent defendant with access to a psychiatrist, there are three relevant factors: (i) the private interest that will be affected by the State's actions; (ii) the State's interest that will be affected if the safeguard is to be provided; and (iii) the probable value of the additional or substitute safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. The private interest in the accuracy of a criminal proceeding is almost uniquely compelling. The State's interest in denying petitioner a psychiatrist's assistance is not substantial in light of the compelling interest of both the State and petitioner in accurate disposition. And without a psychiatrist's assistance to conduct a professional examination on issues relevant to the insanity defense, to help determine whether that defense is viable, to present testimony, and to assist in preparing the cross-examination of the State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. This is so particularly when the defendant is able to make an ex parte threshold showing that his sanity is likely to be a significant factor in his defense. Pp. 78-83.

(b) When the State at a capital sentencing proceeding presents psychiatric evidence of the defendant's future dangerousness, the defendant, without a psychiatrist's assistance, cannot offer an expert's opposing view, and thereby loses a significant opportunity to raise in the jurors' minds questions about the State's proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the State's burden so slim, due process requires access to a psychiatric examination on relevant issues, to a psychiatrist's testimony, and to assistance in preparation at the sentencing phase. Pp. 83-84.

(c) United States ex rel. Smith v. Baldi, supra, is not authority for absolving the trial court of its obligation to provide petitioner access to a psychiatrist. Pp. 84-85.

3. On the record, petitioner was entitled to access to a psychiatrist's assistance at his trial, it being clear that his mental state at the time of the offense was a substantial factor in his defense, and that the trial court was on notice of that fact when the request for a court-appointed psychiatrist was made. In addition, petitioner's future dangerousness was a significant factor at the sentencing phase, so as to entitle him to a psychiatrist's assistance on this issue, and the denial of that assistance deprived him of due process. Pp. 86-87.

663 P.2d 1, reversed and remanded.

MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C. J., filed an opinion concurring in the judgment, post, p. 87. REHNQUIST, J., filed a dissenting opinion, post, p. 87.

Arthur B. Spitzer argued the cause for petitioner. With him on the briefs were Elizabeth Symonds, Charles S. Sims, Burt Neuborne, and William B. Rogers.

Michael C. Turpen, Attorney General of Oklahoma, argued the cause for respondent. With him on the brief was David W. Lee, Assistant Attorney General. *  

[ Footnote * ] Briefs of amici curiae urging reversal were filed for the New Jersey Department of the Public Advocate by Joseph H. Rodriguez and Michael L. Perlin; for the American Psychiatric Association by Joel I. Klein; and for the American Psychological Association et al. by Margaret Farrell Ewing, Donald N. Bersoff, and Bruce J. Ennis. Briefs of amici curiae also supporting petitioner were filed for the Public Defender of Oklahoma et al. by Robert A. Ravitz, Frank McCarthy, and Thomas J. Ray, Jr.; and for the National Legal Aid and Defender Association et al. by Richard J. Wilson and James M. Doyle.

JUSTICE MARSHALL delivered the opinion of the Court.

The issue in this case is whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question.

Late in 1979, Glen Burton Ake was arrested and charged with murdering a couple and wounding their two children. He was arraigned in the District Court for Canadian County, Okla., in February 1980. His behavior at arraignment, and in other prearraignment incidents at the jail, was so bizarre that the trial judge, sua sponte, ordered him to be examined by a psychiatrist "for the purpose of advising with the Court as to his impressions of whether the Defendant may need an extended period of mental observation." App. 2.

The examining psychiatrist reported: "At times [Ake] appears to be frankly delusional . . . . He claims to be the `sword of vengeance' of the Lord and that he will sit at the left hand of God in heaven." Id., at 8. He diagnosed Ake as a probable paranoid schizophrenic and recommended a prolonged psychiatric evaluation to determine whether Ake was competent to stand trial.

In March, Ake was committed to a state hospital to be examined with respect to his "present sanity," i. e., his competency to stand trial. On April 10, less than six months after the incidents for which Ake was indicated, the chief forensic psychiatrist at the state hospital informed the court that Ake was not competent to stand trial. The court then held a competency hearing, at which a psychiatrist testified:

"[Ake] is a psychotic . . . his psychiatric diagnosis was that of paranoid schizophrenia - chronic, with exacerbation, that is with current upset, and that in addition . . . he is dangerous. . . . [B]ecause of the severity of his mental illness and because of the intensities of his rage, his poor control, his delusions, he requires a maximum security facility within - I believe - the State Psychiatric Hospital system." Id., at 11-12.

The court found Ake to be a "mentally ill person in need of care and treatment" and incompetent to stand trial, and ordered him committed to the state mental hospital.

Six weeks later, the chief forensic psychiatrist informed the court that Ake had become competent to stand trial. At the time, Ake was receiving 200 milligrams of Thorazine, an antipsychotic drug, three times daily, and the psychiatrist indicated that, if Ake continued to receive that dosage, his condition would remain stable. The State then resumed proceedings against Ake.

At a pretrial conference in June, Ake's attorney informed the court that his client would raise an insanity defense. To enable him to prepare and present such a defense adequately, the attorney stated, a psychiatrist would have to examine Ake with respect to his mental condition at the time of the offense.

During Ake's 3-month stay at the state hospital, no inquiry had been made into his sanity at the time of the offense, and, as an indigent, Ake could not afford to pay for a psychiatrist. Counsel asked the court either to arrange to have a psychiatrist perform the examination, or to provide funds to allow the defense to arrange one.

The trial judge rejected counsel's argument that the Federal Constitution requires that an indigent defendant receive the assistance of a psychiatrist when that assistance is necessary to the defense, and he denied the motion for a psychiatric evaluation at state expense on the basis of this Court's decision in United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953).

Ake was tried for two counts of murder in the first degree, a crime punishable by death in Oklahoma, and for two counts of shooting with intent to kill. At the guilt phase of trial, his sole defense was insanity. Although defense counsel called to the stand and questioned each of the psychiatrists who had examined Ake at the state hospital, none testified about his mental state at the time of the offense because none had examined him on that point.

The prosecution, in turn, asked each of these psychiatrists whether he had performed or seen the results of any examination diagnosing Ake's mental state at the time of the offense, and each doctor replied that he had not. As a result, there was no expert testimony for either side on Ake's sanity at the time of the offense. The jurors were then instructed that Ake could be found not guilty by reason of insanity if he did not have the ability to distinguish right from wrong at the time of the alleged offense.

They were further told that Ake was to be presumed sane at the time of the crime unless he presented evidence sufficient to raise a reasonable doubt about his sanity at that time. If he raised such a doubt in their minds, the jurors were informed, the burden of proof shifted to the State to prove sanity beyond a reasonable doubt. 1 The jury rejected Ake's insanity defense and returned a verdict of guilty on all counts.

At the sentencing proceeding, the State asked for the death penalty. No new evidence was presented. The prosecutor relied significantly on the testimony of the state psychiatrists who had examined Ake, and who had testified at the guilt phase that Ake was dangerous to society, to establish the likelihood of his future dangerous behavior. Ake had no expert witness to rebut this testimony or to introduce on his behalf evidence in mitigation of his punishment. The jury sentenced Ake to death on each of the two murder counts, and to 500 years' imprisonment on each of the two counts of shooting with intent to kill.

On appeal to the Oklahoma Court of Criminal Appeals, Ake argued that, as an indigent defendant, he should have been provided the services of a court-appointed psychiatrist. The court rejected this argument, observing: "We have held numerous times that, the unique nature of capital cases notwithstanding, the State does not have the responsibility of providing such services to indigents charged with capital crimes." 663 P.2d 1, 6 (1983). Finding no error in Ake's other claims, 2 the court affirmed the convictions and sentences. We granted certiorari.

We hold that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one. Accordingly, we reverse.

II

Initially, we must address our jurisdiction to review this case. After ruling on the merits of Ake's claim, the Oklahoma court observed that in his motion for a new trial Ake had not repeated his request for a psychiatrist and that the claim was thereby waived. 663 P.2d, at 6. The court cited Hawkins v. State, 569 P.2d 490 (Okla. Crim. App. 1977), for this proposition.

The State argued in its brief to this Court that the court's holding on this issue therefore rested on an adequate and independent state ground and ought not be reviewed. Despite the court's state-law ruling, we conclude that the state court's judgment does not rest on an independent state ground and that our jurisdiction is therefore properly exercised.

The Oklahoma waiver rule does not apply to fundamental trial error. See Hawkins v. State, supra, at 493; Gaddis v. State, 447 P.2d 42, 45-46 (Okla. Crim. App. 1968). Under Oklahoma law, and as the State conceded at oral argument, federal constitutional errors are "fundamental." Tr. of Oral Arg. 51-52; see Buchanan v. State, 523 P.2d 1134, 1137 (Okla. Crim. App. 1974) (violation of constitutional right constitutes fundamental error); see also Williams v. State, 658 P.2d 499 (Okla. Crim. App. 1983).

Thus, the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question.

As we have indicated in the past, when resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded. See Herb v. Pitcairn, 324 U.S. 117, 126 (1945) ("We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of Federal laws, our review could amount to nothing more than an advisory opinion"); Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U.S. 157, 164 (1917) ("But where the non-Federal ground is so interwoven with the other as not to be an independent matter, or is not of sufficient breadth to sustain the judgment without any decision of the other, our jurisdiction is plain").

III

This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

In recognition of this right, this Court held almost 30 years ago that once a State offers to criminal defendants the opportunity to appeal their cases, it must provide a trial transcript to an indigent defendant if the transcript is necessary to a decision on the merits of the appeal. Griffin v. Illinois, (1956). Since then, this Court has held that an indigent defendant may not be required to pay a fee before filing a notice of appeal of his conviction, Burns v. Ohio, 360 U.S. 252 (1959), that an indigent defendant is entitled to the assistance of counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963), and on his first direct appeal as of right, Douglas v. California, 372 U.S. 353 (1963), and that such assistance must be effective. See Evitts v. Lucey, 469 U.S. 387 (1985); Strickland v. Washington, 466 U.S. 668 (1984); McMann v. Richardson, 397 U.S. 759, 771 , n. 14 (1970). 3 Indeed, in Little v. Streater, 452 U.S. 1 (1981), we extended this principle of meaningful participation to a "quasi-criminal" proceeding and held that, in a paternity action, the State cannot deny the putative father blood grouping tests, if he cannot otherwise afford them.

Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.

Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S. 600 (1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system," id., at 612. To implement this principle, we have focused on identifying the "basic tools of an adequate defense or appeal," Britt v. North Carolina, 404 U.S. 226, 227 (1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them.

To say that these basic tools must be provided is, of course, merely to begin our inquiry. In this case we must decide whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense.

Three factors are relevant to this determination. The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. See Little v. Streater, supra, at 6; Mathews v. Eldridge, 424 U.S. 319, 335 (1976). We turn, then, to apply this standard to the issue before us.

A

The private interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling. Indeed, the host of safeguards fashioned by this Court over the years to diminish the risk of erroneous conviction stands as a testament to that concern. The interest of the individual in the outcome of the State's effort to overcome the presumption of innocence is obvious and weighs heavily in our analysis.

We consider, next, the interest of the State. Oklahoma asserts that to provide Ake with psychiatric assistance on the record before us would result in a staggering burden to the State. Brief for Respondent 46-47. We are unpersuaded by this assertion. Many States, as well as the Federal Government, currently make psychiatric assistance available to indigent defendants, and they have not found the financial burden so great as to preclude this assistance. 4

This is especially so when the obligation of the State is limited to provision of one competent psychiatrist, as it is in many States, and as we limit the right we recognize today. At the same time, it is difficult to identify any interest of the State, other than that in its economy, that weighs against recognition of this right. The State's interest in prevailing at trial - unlike that of a private litigant - is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases.

Thus, also unlike a private litigant, a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained. We therefore conclude that the governmental interest in denying Ake the assistance of a psychiatrist is not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions.

Last, we inquire into the probable value of the psychiatric assistance sought, and the risk of error in the proceeding if such assistance is not offered. We begin by considering the pivotal role that psychiatry has come to play in criminal proceedings. More than 40 States, as well as the Federal Government, have decided either through legislation or judicial decision that indigent defendants are entitled, under certain circumstances, to the assistance of a psychiatrist's expertise. 5

For example, in subsection (e) of the Criminal Justice Act, 18 U.S.C. 3006A, Congress has provided that indigent defendants shall receive the assistance of all experts "necessary for an adequate defense." Numerous state statutes guarantee reimbursement for expert services under a like standard. And in many States that have not assured access to psychiatrists through the legislative process, state courts have interpreted the State or Federal Constitution to require that psychiatric assistance be provided to indigent defendants when necessary for an adequate defense, or when insanity is at issue. 6  

These statutes and court decisions reflect a reality that we recognize today, namely, that when the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense.

In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the "elusive and often deceptive" symptoms of insanity, Solesbee v. Balkcom, 339 U.S. 9, 12 (1950), and tell the jury why their observations are relevant.

Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.

Psychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party. When jurors make this determination about issues that inevitably are complex and foreign, the testimony of psychiatrists can be crucial and "a virtual necessity if an insanity plea is to have any chance of success." 7

By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and witnesses, and that private individuals do as well, when they can afford to do so. 8 In so saying, we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of the evolving practice.

The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination.

A defendant's mental condition is not necessarily at issue in every criminal proceeding, however, and it is unlikely that psychiatric assistance of the kind we have described would be of probable value in cases where it is not. The risk of error from denial of such assistance, as well as its probable value, is most predictably at its height when the defendant's mental condition is seriously in question. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent. It is in such cases that a defense may be devastated by the absence of a psychiatric examination and testimony; with such assistance, the defendant might have a reasonable chance of success. In such a circumstance, where the potential accuracy of the jury's determination is so dramatically enhanced, and where the interests of the individual and the State in an accurate proceeding are substantial, the State's interest in its fisc must yield. 9  

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.

B

Ake also was denied the means of presenting evidence to rebut the State's evidence of his future dangerousness. The foregoing discussion compels a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness. We have repeatedly recognized the defendant's compelling interest in fair adjudication at the sentencing phase of a capital case.

The State, too, has a profound interest in assuring that its ultimate sanction is not erroneously imposed, and we do not see why monetary considerations should be more persuasive in this context than at trial. The variable on which we must focus is, therefore, the probable value that the assistance of a psychiatrist will have in this area, and the risk attendant on its absence.

This Court has upheld the practice in many States of placing before the jury psychiatric testimony on the question of future dangerousness, see Barefoot v. Estelle, 463 U.S. 880, 896 -905 (1983), at least where the defendant has had access to an expert of his own, id., at 899, n. 5. In so holding, the Court relied, in part, on the assumption that the factfinder would have before it both the views of the prosecutor's psychiatrists and the "opposing views of the defendant's doctors" and would therefore be competent to "uncover, recognize, and take due account of . . . shortcomings" in predictions on this point. Id., at 899.

Without a psychiatrist's assistance, the defendant cannot offer a well-informed expert's opposing view, and thereby loses a significant opportunity to raise in the jurors' minds questions about the State's proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.

C

The trial court in this case believed that our decision in United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953), absolved it completely of the obligation to provide access to a psychiatrist. For two reasons, we disagree. First, neither Smith, nor McGarty v. O'Brien, 188 F.2d 151, 155 (CA1 1951), to which the majority cited in Smith, even suggested that the Constitution does not require any psychiatric examination or assistance whatsoever. Quite to the contrary, the record in Smith demonstrated that neutral psychiatrists in fact had examined the defendant as to his sanity and had testified on that subject at trial, and it was on that basis that the Court found no additional assistance was necessary. Smith, supra, at 568; see also United States ex rel. Smith v. Baldi, 192 F.2d 540, 547 (CA3 1951).

Similarly, in McGarty, the defendant had been examined by two psychiatrists who were not beholden to the prosecution. We therefore reject the State's contention that Smith supports the broad proposition that "[t]here is presently no constitutional right to have a psychiatric examination of a defendant's sanity at the time of the offense." Brief in Opposition 8. At most it supports the proposition that there is no constitutional right to more psychiatric assistance than the defendant in Smith had received.

In any event, our disagreement with the State's reliance on Smith is more fundamental. That case was decided at a time when indigent defendants in state courts had no constitutional right to even the presence of counsel. Our recognition since then of elemental constitutional rights, each of which has enhanced the ability of an indigent defendant to attain a fair hearing, has signaled our increased commitment to assuring meaningful access to the judicial process.

Also, neither trial practice nor legislative treatment of the role of insanity in the criminal process sits paralyzed simply because this Court has once addressed them, and we would surely be remiss to ignore the extraordinarily enhanced role of psychiatry in criminal law today. 10 Shifts in all these areas since the time of Smith convince us that the opinion in that case was addressed to altogether different variables, and that we are not limited by it in considering whether fundamental fairness today requires a different result.

IV

We turn now to apply these standards to the facts of this case. On the record before us, it is clear that Ake's mental state at the time of the offense was a substantial factor in his defense, and that the trial court was on notice of that fact when the request for a court-appointed psychiatrist was made.

For one, Ake's sole defense was that of insanity. Second, Ake's behavior at arraignment, just four months after the offense, was so bizarre as to prompt the trial judge, sua sponte, to have him examined for competency. Third, a state psychiatrist shortly thereafter found Ake to be incompetent to stand trial, and suggested that he be committed. Fourth, when he was found to be competent six weeks later, it was only on the condition that he be sedated with large doses of Thorazine three times a day, during trial. Fifth, the psychiatrists who examined Ake for competency described to the trial court the severity of Ake's mental illness less than six months after the offense in question, and suggested that this mental illness might have begun many years earlier. App. 35. Finally, Oklahoma recognizes a defense of insanity, under which the initial burden of producing evidence falls on the defendant. 11 Taken together, these factors make clear that the question of Ake's sanity was likely to be a significant factor in his defense. 12  

In addition, Ake's future dangerousness was a significant factor at the sentencing phase. The state psychiatrist who treated Ake at the state mental hospital testified at the guilt phase that, because of his mental illness, Ake posed a threat of continuing criminal violence. This testimony raised the issue of Ake's future dangerousness, which is an aggravating factor under Oklahoma's capital sentencing scheme, Okla. Stat., Tit. 21, 701.12(7) (1981), and on which the prosecutor relied at sentencing. We therefore conclude that Ake also was entitled to the assistance of a psychiatrist on this issue and that the denial of that assistance deprived him of due process. 13  

Accordingly, we reverse and remand for a new trial.

It is so ordered.

CHIEF JUSTICE BURGER, concurring in the judgment.

This is a capital case in which the Court is asked to decide whether a State may refuse an indigent defendant "any opportunity whatsoever" to obtain psychiatric evidence for the preparation and presentation of a claim of insanity by way of defense when the defendant's legal sanity at the time of the offense was "seriously in issue."

The facts of the case and the question presented confine the actual holding of the Court. In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases. Nothing in the Court's opinion reaches noncapital cases.

Footnotes

[ Footnote 1 ] Oklahoma Stat., Tit. 21, 152 (1981), provides that "[a]ll persons are capable of committing crimes, except those belonging to the following classes . . . (4) Lunatics, insane persons and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness."

The Oklahoma Court of Criminal Appeals has held that there is an initial presumption of sanity in every case, "which remains until the defendant raises, by sufficient evidence, a reasonable doubt as to his sanity at the time of the crime. If the issue is so raised, the burden of proving the defendant's sanity beyond a reasonable doubt falls upon the State." 663 P.2d 1, 10 (1983) (case below); see also Rogers v. State, 634 P.2d 743 (Okla. Crim. App. 1981).

[ Footnote 2 ] The Oklahoma Court of Criminal Appeals also dismissed Ake's claim that the Thorazine he was given during trial rendered him unable to understand the proceedings against him or to assist counsel with his defense. The court acknowledged that Ake "stared vacantly ahead throughout the trial" but rejected Ake's challenge in reliance on a state psychiatrist's word that Ake was competent to stand trial while under the influence of the drug. 663 P.2d, at 7-8, and n. 5. Ake petitioned for a writ of certiorari on this issue as well. In light of our disposition of the other issues presented, we need not address this claim.

[ Footnote 3 ] This Court has recently discussed the role that due process has played in such cases, and the separate but related inquiries that due process and equal protection must trigger. See Evitts v. Lucey; Bearden v. Georgia, 461 U.S. 660 (1983).

[ Footnote 4 ] See Ala. Code 15-12-21 (Supp. 1984); Alaska Stat. Ann. 18.85.100 (1981); Ariz. Rev. Stat. Ann. 13-4013 (1978) (capital cases; extended to noncapital cases in State v. Peeler, 126 Ariz. 254, 614 P.2d 335 (App. 1980)); Ark. Stat. Ann. 17-456 (Supp. 1983); Cal. Penal Code Ann. 987.9 (West Supp. 1984) (capital cases; right recognized in all cases in People v. Worthy, 109 Cal. App. 3d 514, 167 Cal. Rptr. 402 (1980)); Colo. Rev. Stat. 18-1-403 (Supp. 1984); State v. Clemons, 168 Conn. 395, 363 A. 2d 33 (1975); Del. Code Ann., Tit. 29, 4603 (1983); Fla. Rule Crim. Proc. 3.216; Haw. Rev. Stat. 802-7 (Supp. 1983); State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982); People v. Watson, 36 Ill. 2d 228, 221 N. E. 2d 645 (1966); Owen v. State, 272 Ind. 122, 396 N. E. 2d 376 (1979) (trial judge may authorize or appoint experts where necessary); Iowa Rule Crim. Proc. 19; Kan. Stat. Ann. 22-4508 (Supp. 1983); Ky. Rev. Stat. 31.070, 31.110, 31.185 (1980); State v. Madison, 345 So.2d 485 (La. 1977); State v. Anaya, 456 A. 2d 1255 (Me. 1983); Mass. Gen. Laws Ann., ch. 261, 27C(4) (West Supp. 1984-1985); Mich. Comp. Laws Ann. 768.20a(3) (Supp. 1983); Minn. Stat. 611.21 (1982); Miss. Code Ann. 99-15-17 (Supp. 1983); Mo. Rev. Stat. 552.030.4 (Supp. 1984); Mont. Code Ann. 46-8-201 (1983); State v. Suggett, 200 Neb. 693, 264 N. W. 2d 876 (1978) (discretion to appoint psychiatrist rests with trial court); Nev. Rev. Stat. 7.135 (1983); N. H. Rev. Stat. Ann. 604-A:6 (Supp. 1983); N. M. Stat. Ann. 31-16-2, 31-16-8 (1984); N. Y. County Law 722-c (McKinney Supp. 1984-1985); N.C. Gen. Stat. 7A-454 (1981); Ohio Rev. Code Ann. 2941.51 (Supp. 1983); Ore. Rev. Stat. 135.055(4) (1983); Commonwealth v. Gelormo, 327 Pa. Super. 219, 227, and n. 5, 475 A. 2d 765, 769, and n. 5 (1984); R. I. Gen. Laws 9-17-19 (Supp. 1984); S. C. Code 17-3-80 (Supp. 1983); S. D. Codified Laws 23A-40-8 (Supp. 1984); Tenn. Code Ann. 40-14-207 (Supp. 1984); Tex. Code Crim. Proc. Ann., Art. 26.05 (Vernon Supp. 1984); Utah Code Ann. 77-32-1 (1982); Wash. Rev. Code 10.77.020, 10.77.060 (1983) (see also State v. Cunningham, 18 Wash. App. 517, 569 P.2d 1211 (1977)); W. Va. Code 29-21-14(e)(3) (Supp. 1984); Wyo. Stat. 7-1-108; 7-1-110; 7-1-116 (1977).

[ Footnote 5 ] See n. 4, supra.

[ Footnote 6 ] Ibid.

[ Footnote 7 ] Gardner, The Myth of the Impartial Psychiatric Expert - Some Comments Concerning Criminal Responsibility and the Decline of the Age of Therapy, 2 Law & Psychology Rev. 99, 113-114 (1976). In addition, "[t]estimony emanating from the depth and scope of specialized knowledge is very impressive to a jury. The same testimony from another source can have less effect." F. Bailey & H. Rothblatt, Investigation and Preparation of Criminal Cases 175 (1970); see also ABA Standards for Criminal Justice 5-1.4, Commentary, p. 5.20 (2d ed. 1980) ("The quality of representation at trial . . . may be excellent and yet valueless to the defendant if the defense requires the assistance of a psychiatrist . . . and no such services are available").

[ Footnote 8 ] See also Reilly v. Barry, 250 N. Y. 456, 461, 166 N. E. 165, 167 (1929) (Cardozo, C. J.) ("[U]pon the trial of certain issues, such as insanity or forgery, experts are often necessary both for prosecution and for defense. . . . [A] defendant may be at an unfair disadvantage, if he is unable because of poverty to parry by his own witnesses the thrusts of those against him"); 2 I. Goldstein & F. Lane, Goldstein Trial Techniques 14.01 (2d ed. 1969) ("Modern civilization, with its complexities of business, science, and the professions, has made expert and opinion evidence a necessity. This is true where the subject matters involved are beyond the general knowledge of the average juror"); Henning, The Psychiatrist in the Legal Process, in By Reason of Insanity: Essays on Psychiatry and the Law 217, 219-220 (L. Freedman ed., 1983) (discussing the growing role of psychiatric witnesses as a result of changing definitions of legal insanity and increased judicial and legislative acceptance of the practice).

[ Footnote 9 ] In any event, before this Court the State concedes that such a right exists but argues only that it is not implicated here. Brief for Respondent 45; Tr. of Oral Arg. 52. It therefore recognizes that the financial burden is not always so great as to outweigh the individual interest.

[ Footnote 10 ] See Henning, supra n. 8; Gardner, supra n. 7, at 99; H. Huckabee, Lawyers, Psychiatrists and Criminal Law: Cooperation or Chaos? 179-181 (1980) (discussing reasons for the shift toward reliance on psychiatrists); Huckabee, Resolving the Problem of Dominance of Psychiatrists in Criminal Responsibility Decisions: A Proposal, 27 Sw. L. J. 790 (1973).

[ Footnote 11 ] See n. 1, supra.

[ Footnote 12 ] We express no opinion as to whether any of these factors, alone or in combination, is necessary to make this finding.

[ Footnote 13 ] Because we conclude that the Due Process Clause guaranteed to Ake the assistance he requested and was denied, we have no occasion to consider the applicability of the Equal Protection Clause, or the Sixth Amendment, in this context.

JUSTICE REHNQUIST, dissenting.

The Court holds that "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." Ante, at 74. I do not think that the facts of this case warrant the establishment of such a principle; and I think that even if the factual predicate of the Court's statement were established, the constitutional rule announced by the Court is far too broad. I would limit the rule to capital cases, and make clear that the entitlement is to an independent psychiatric evaluation, not to a defense consultant.

Petitioner Ake and his codefendant Hatch quit their jobs on an oil field rig in October 1979, borrowed a car, and went looking for a location to burglarize. They drove to the rural home of Reverend and Mrs. Richard Douglass, and gained entrance to the home by a ruse. Holding Reverend and Mrs. Douglass and their children, Brooks and Leslie, at gunpoint, they ransacked the home; they then bound and gagged the mother, father, and son, and forced them to lie on the living room floor. Ake and Hatch then took turns attempting to rape 12-year-old Leslie Douglass in a nearby bedroom. Having failed in these efforts, they forced her to lie on the living room floor with the other members of her family.

Ake then shot Reverend Douglass and Leslie each twice, and Mrs. Douglass and Brooks once, with a .357 magnum pistol, and fled. Mrs. Douglass died almost immediately as a result of the gunshot wound; Reverend Douglass' death was caused by a combination of the gunshots he received, and strangulation from the manner in which he was bound. Leslie and Brooks managed to untie themselves and to drive to the home of a nearby doctor. Ake and his accomplice were apprehended in Colorado following a month-long crime spree that took them through Arkansas, Louisiana, Texas, and other States in the western half of the United States.

Ake was extradited from Colorado to Oklahoma on November 20, 1979, and placed in the city jail in El Reno, Oklahoma. Three days after his arrest, he asked to speak to the Sheriff. Ake gave the Sheriff a detailed statement concerning the above crimes, which was first taped, then reduced to 44 written pages, corrected, and signed by Ake.

Ake was arraigned on November 23, 1979, and again appeared in court with his codefendant Hatch on December 11th. Hatch's attorney requested and obtained an order transferring Hatch to the state mental hospital for a 60-day observation period to determine his competency to stand trial; although Ake was present in court with his attorney during this proceeding, no such request was made on behalf of Ake.

On January 21, 1980, both Ake and Hatch were bound over for trial at the conclusion of a preliminary hearing. No suggestion of insanity at the time of the commission of the offense was made at this time. On February 14, 1980, Ake appeared for formal arraignment, and at this time became disruptive. The court ordered that Ake be examined by Dr. William Allen, a psychiatrist in private practice, in order to determine his competency to stand trial.

On April 10, 1980, a competency hearing was held at the conclusion of which the trial court found that Ake was a mentally ill person in need of care and treatment, and he was transferred to a state institution. Six weeks later, the chief psychiatrist for the institution advised the court that Ake was now competent to stand trial, and the murder trial began on June 23, 1980. At this time Ake's attorney withdrew a pending motion for jury trial on present sanity. Outside the presence of the jury the State produced testimony of a cellmate of Ake, who testified that Ake had told him that he was going to try to "play crazy."

The State at trial produced evidence as to guilt, and the only evidence offered by Ake was the testimony of the doctors who had observed and treated him during his confinement pursuant to the previous order of the court. Each of these doctors testified as to Ake's mental condition at the time of his confinement in the institution, but none could express a view as to his mental condition at the time of the offense.

Significantly, although all three testified that Ake suffered from some form of mental illness six months after he committed the murders, on cross-examination two of the psychiatrists specifically stated that they had "no opinion" concerning Ake's capacity to tell right from wrong at the time of the offense, and the third would only speculate that a psychosis might have been "apparent" at that time. The Court makes a point of the fact that "there was no expert testimony for either side on Ake's sanity at the time of the offense." Ante, at 72 (emphasis deleted).

In addition, Ake called no lay witnesses, although some apparently existed who could have testified concerning Ake's actions that might have had a bearing on his sanity at the time of the offense; and although two "friends" of Ake's who had been with him at times proximate to the murders testified at trial at the behest of the prosecution, defense counsel did not question them concerning any of Ake's actions that might have a bearing on his sanity.

The Court's opinion states that before an indigent defendant is entitled to a state-appointed psychiatrist the defendant must make "a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial." Ante, at 74. But nowhere in the opinion does the Court elucidate how that requirement is satisfied in this particular case. Under Oklahoma law, the burden is initially on the defendant to raise a reasonable doubt as to his sanity at the time of the offense. Once that burden is satisfied, the burden shifts to the State to prove sanity beyond a reasonable doubt. Ake v. State, 663 P.2d 1, 10 (1983). Since the State introduced no evidence concerning Ake's sanity at the time of the offense, it seems clear that as a matter of state law Ake failed to carry the initial burden. Indeed, that was the holding of the Oklahoma Court of Criminal Appeals. Ibid.

Nor is this a surprising conclusion on the facts here. The evidence of the brutal murders perpetrated on the victims, and of the month-long crime spree following the murders, would not seem to raise any question of sanity unless one were to adopt the dubious doctrine that no one in his right mind would commit a murder.

The defendant's 44-page confession, given more than a month after the crimes, does not suggest insanity; nor does the failure of Ake's attorney to move for a competency hearing at the time the codefendant moved for one. The first instance in this record is the disruptive behavior at the time of formal arraignment, to which the trial judge alertly and immediately responded by committing Ake for examination.

The trial commenced some two months later, at which time Ake's attorney withdrew a pending motion for jury trial on present sanity, and the State offered the testimony of a cellmate of Ake who said that the latter had told him that he was going to try to "play crazy." The Court apparently would infer from the fact that Ake was diagnosed as mentally ill some six months after the offense that there was a reasonable doubt as to his ability to know right from wrong when he committed it. But even the experts were unwilling to draw this inference.

Before holding that the State is obligated to furnish the services of a psychiatric witness to an indigent defendant who reasonably contests his sanity at the time of the offense, I would require a considerably greater showing than this. And even then I do not think due process is violated merely because an indigent lacks sufficient funds to pursue a state-law defense as thoroughly as he would like.

There may well be capital trials in which the State assumes the burden of proving sanity at the guilt phase, or "future dangerousness" at the sentencing phase, and makes significant use of psychiatric testimony in carrying its burden, where "fundamental fairness" would require that an indigent defendant have access to a court-appointed psychiatrist to evaluate him independently and - if the evaluation so warrants - contradict such testimony. But this is not such a case. It is highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant, but in any event if such a defense is afforded the burden of proving insanity can be placed on the defendant. See Patterson v. New York, (1977). That is essentially what happened here, and Ake failed to carry his burden under state law. I do not believe the Due Process Clause superimposes a federal standard for determining how and when sanity can legitimately be placed in issue, and I would find no violation of due process under the circumstances.

With respect to the necessity of expert psychiatric testimony on the issue of "future dangerousness," as opposed to sanity at the time of the offense, there is even less support for the Court's holding. Initially I would note that, given the Court's holding that Ake is entitled to a new trial with respect to guilt, there was no need to reach issues raised by the sentencing proceedings, so the discussion of this issue may be treated as dicta. But in any event, the psychiatric testimony concerning future dangerousness was obtained from the psychiatrists when they were called as defense witnesses, not prosecution witnesses. Since the State did not initiate this line of testimony, I see no reason why it should be required to produce still more psychiatric witnesses for the benefit of the defendant.

Finally, even if I were to agree with the Court that some right to a state-appointed psychiatrist should be recognized here, I would not grant the broad right to "access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ante, at 83 (emphasis added). A psychiatrist is not an attorney, whose job it is to advocate. His opinion is sought on a question that the State of Oklahoma treats as a question of fact.

Since any "unfairness" in these cases would arise from the fact that the only competent witnesses on the question are being hired by the State, all the defendant should be entitled to is one competent opinion - whatever the witness' conclusion - from a psychiatrist who acts independently of the prosecutor's office. Although the independent psychiatrist should be available to answer defense counsel's questions prior to trial, and to testify if called, I see no reason why the defendant should be entitled to an opposing view, or to a "defense" advocate.

For the foregoing reasons, I would affirm the judgment of the Court of Criminal Appeals of Oklahoma.

An appeal from the District Court of Canadian County; Joe Cannon, District Judge.

Glen Burton Ake, appellant, was tried and convicted of two counts of First Degree Murder and two counts of Shooting with Intent to Kill, in Canadian County District Court, Case Nos. CRF-79-302, CRF-79-303, CRF-79-304 and CRF-79-305, was sentenced to two terms of life imprisonment and two terms of two hundred (200) years, and appeals. AFFIRMED.

Irvin R. Box, Diane Clowdus, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Deputy Chief, Criminal Div., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

[778 P.2d 461]

¶1 Appellant, Glen Burton Ake, was tried by jury and convicted of two counts of First Degree Murder (21 O.S. 1981 § 701.7 [21-701.7]) and two counts of Shooting with Intent to Kill (21 O.S. 1981 § 652 [21-652]), in Canadian County District Court, Case Nos. CRF-79-302, CRF-79-303, CRF-79-304 and CRF-79-305, before the Honorable Joe Cannon, District Judge. The jury set punishment during the second stage at life imprisonment for each count of First Degree Murder and [778 P.2d 462] two hundred (200) years imprisonment for each count of Shooting with Intent to Kill. Judgment and sentence was imposed accordingly. We affirm.

¶2 Appellant was first convicted of these crimes in 1980. He filed a direct appeal and his convictions were affirmed. However, the United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), reversed and remanded for a new trial. Appellant now appeals the convictions of this second trial.

¶3 The facts leading to these events began on October 15, 1979, while appellant and his co-defendant, Steven Hatch, were employed at a drilling company. Early that morning, Claude Lucas drove appellant and Hatch to work. On the way, the three stopped so appellant could do some target practice. After arriving at work, appellant and Hatch quit their jobs and borrowed Lucas' car, telling him they would return it later that afternoon. During the evening, appellant and Hatch drove to the rural home of the Richard Douglass family. Hearing the dogs bark, Leslie, the twelve-year old daughter, went to the front yard and asked appellant if he needed help. He asked for an address and she went inside to look it up in the telephone book. Appellant and Hatch entered the house under the pretext of using the phone, and after gaining entrance, both men pulled guns and told the family they would "blow their heads off" if they tried anything.

¶4 Richard and Marilyn Douglass, who were in various parts of the house, were forced into the living room, as was Brooks, their son. Marilyn and Brooks were led to their rooms to retrieve any money they had. They were returned to the living room, where all but Leslie were bound, gagged and told to lay face down on the floor. Leslie was then forced to show appellant and Hatch the "secret hiding places" of the family. Appellant tore the phones from their connections. He then demanded Leslie undress, and he and Hatch attempted to rape her. Appellant tried unsuccessfully a second time to rape her. After these attempts, she was told to dress and return to the living room, where she was bound, gagged and forced to lay face down on the floor. Hatch then covered the heads of all four of the Douglass family. Appellant sent Hatch to the car and told the family he didn't want to shoot them, but he didn't know if they could be trusted. After saying, "I'm sorry but dead men don't talk," he shot Brooks once, Marilyn once, Richard twice and Leslie twice and fled from the house.

¶5 The two children were able to untie themselves and drive to the house of a nearby doctor. The sheriff's office was summoned and upon arrival at the Douglass home, Marilyn and Richard Douglass were dead. A palm print of appellant was found in the house and the bullets recovered from the Douglass home were identical to those found at the site where appellant practiced shooting earlier in the day. In November, appellant and Hatch were arrested in Craig, Colorado. Hatch was wearing the wedding ring of Richard Douglass. Appellant was using a Visa credit card belonging to Marilyn Douglass. Mrs. Douglass' wedding ring was also recovered.

¶6 Before the second trial, defense counsel filed a motion asking that appellant be sent for testing regarding his competency to stand trial. Initially, after arriving at Eastern State Hospital, appellant was found to be incompetent. However, some months later, the attending doctors informed the court that appellant was competent to stand trial as long as he remained on his medication, which consisted of 1600 milligrams of Thorazine. A hearing was held to determine appellant's competency. The jury unanimously found appellant to be competent to stand trial.

¶7 At trial, appellant's sole defense was that of insanity at the time of the offense. Prior to trial, appellant requested that the trial court provide him access to a psychiatrist in order to prepare his defense. The court granted his request, and defense counsel contacted Dr. Hans Von Brauchitsch, who testified on behalf of appellant. Dr. Von Brauchitsch testified that [778 P.2d 463] appellant was very agitated and upset a few days prior to October 15, 1979. Appellant related to the doctor that he quit his job because of the "enemies" that were after him. When appellant left work that morning, he thought his imaginary enemies were trying to trap him. Dr. Von Brauchitsch stated that the voices in appellant's head directed him to the Douglass house and forced him to shoot them.

¶8 Dr. Von Brauchitsch also explained that appellant was suffering from paranoid schizophrenia. He stated that while the disease itself could not be cured, the symptoms of the disease could be treated with medication. However, when taken off the medications prescribed to treat the illness, appellant lapses back into a delusional state, or what appellant terms "the demon world." The doctor explained that appellant's condition had deteriorated over the past several years, and that appellant had been schizophrenic since between 1973 and 1975. When asked whether appellant could distinguish right from wrong on the day that the crimes were committed, Dr. Von Brauchitsch stated that appellant did not know right from wrong.

¶9 As his first assignment of error, appellant alleges a violation of his right to a speedy trial due to the six year delay between his first trial and his second trial. Appellant was first tried and convicted in 1980, and the convictions were subsequently overturned by the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The State then began proceedings to retry appellant, but during the course of said proceedings, delays occurred due to appellant's mental condition. The second trial was held in February, 1986.

¶10 To determine whether a violation of the constitutional right to a speedy trial has occurred, this Court has consistently adhered to the test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which requires consideration of the length of delay, the reasons for the delay, the party's assertion of his or her right to a speedy trial, and the degree of prejudice suffered by the party. See Johnson v. State, 761 P.2d 484, 487 (Okla. Crim. App. 1988); Henderson v. State, 743 P.2d 1092, 1094 (Okla. Crim. App. 1987).

¶11 The length of delay between the crime and appellant's second trial was approximately six years. Clearly, this delay necessitates an inquiry into the remaining factors. There were several reasons for the long delay. Initially, we note that the State did not delay in bringing appellant to trial, as his first trial was held in 1980 and his second trial was held within one year of the United States Supreme Court's reversal. Clearly, appellant cannot complain of the delay between trials as United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966), held that a defendant who obtains reversal of his conviction may be retried notwithstanding the delay incident to such legal proceedings. It is the delay between the Supreme Court's decision and appellant's retrial that concerns this Court. However, the record reveals that such delay was due largely to appellant's mental condition. Appellant was hospitalized several times to undergo testing to evaluate his competency.

¶12 The next factor to be considered by this Court is appellant's assertion of his right to a speedy trial. A motion to dismiss for lack of a speedy trial was filed by defense counsel on December 12, 1985, which was two (2) months before trial.

¶13 The last factor is the degree of prejudice suffered by appellant. Appellant urges that the long delay between the two trials prejudiced his defense because of his deteriorating mental condition. However, we find no prejudice especially in light of the fact that appellant was found competent and was able to function mentally due to medication prescribed for his illness. Appellant was able to present the defense of insanity at trial, and said defense was not hampered by the delay. Accordingly, this assignment is without merit.

¶14 Appellant also asserts that he was incompetent to stand trial. As the basis for this argument, appellant urges that "his chronic progressive mental disease" precluded him from being competent at the time of [778 P.2d 464] trial, and because his condition continues to deteriorate, appellant asserts he can never stand trial. In rebuttal the State points out that appellant was given a competency hearing, wherein both parties presented evidence regarding appellant's competence. The jury determined appellant was competent to stand trial.

¶15 Title 22 O.S. 1981 § 1175.4 [22-1175.4](B) presumes the defendant is competent and requires him to prove his incompetence by clear and convincing evidence. The test used to determine appellant's competency is whether the accused has sufficient ability to consult with his lawyer and has a rational as well as actual understanding of the proceedings against him.

¶16 In the present case, appellant called four witnesses at the post-examination competency hearing, three of these witnesses being psychiatrists. All three doctors testified he was competent, although two expressed their opinion that appellant was suffering from chronic paranoid schizophrenia. The doctors testified that appellant realized the nature and consequences of his crime and understood the importance of defense counsel and realized he needed to cooperate with his attorneys. The record also reveals that appellant understood the duties of the judge, jury and attorneys. Accordingly, appellant failed to meet his burden of proof. See Fox v. State, (Okla. Crim. App. 1974). This assignment is without merit.

¶17 Next, appellant argues that the trial court committed constitutional error by refusing to appoint a psychiatrist to assist and aid him in his post-examination competency hearing. As support for his assertion, appellant relies on Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096, which states as follows:

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.

Before the post-examination competency hearing, appellant filed a written request for the appointment of a psychiatrist to aid him in preparing for the hearing. The State opposed such motion, stating that Ake was limited to the provision of a psychiatrist at trial to aid in an insanity defense. In the alternative, the State asserted that the mandates of Ake had been met because appellant had been given access to a competent psychiatrist. The district court denied appellant's request, although the basis of the ruling is not contained in the record.

¶18 This Court has yet to to determine whether the rationale of Ake extends to the provision of a psychiatrist for the purposes of a competency hearing. However, assuming arguendo that Ake requires an [778 P.2d 465] indigent defendant be provided access to a competent psychiatrist for his competency hearing if the requisite showing is made, we believe that appellant's due process rights were not violated insofar as he had access to several competent psychiatrists before the hearing.

¶19 "[A]ccess to a competent psychiatrist who will conduct an appropriate examination" does not constitutionally mandate that appellant be given the "right to choose a psychiatrist of his personal liking or to receive funds to hire his own." Ake, 470 U.S. at 83, 105 S.Ct. at 1096; Brown v. State, (Okla. Crim. App. 1987). "[T]he State has no constitutional obligation to promote a battle between psychiatric experts `by supplying defense counsel with funds wherewith to hunt around for other experts who may be willing, as witnesses for the defense, to offer the opinion that the accused'" wishes to place before the jury. Djadi v. State, 528 A.2d 502, 505 (Md. App. 1987), (quoting Swanson v. State, 9 Md. App. 594, 267 A.2d 270, 274 (1970)).

¶20 Appellant argues that he "was forced to proceed . . . without the benefit of an independent psychiatric examination to aid in meeting the burden of proof as to defendant's incompetency" as he had "no expert testimony to support his contentions." Brief of Appellant, at 23. This argument is flawed for two reasons. First, appellant was examined by three competent psychiatrists. All three conducted examinations regarding his competency and determined he was competent to stand trial. Although two of the doctors were employed by a state mental hospital, one doctor was an "independent" psychiatrist as he was employed by a private, non-profit community mental health center.² Second, "we do not read Ake as mandating a favorable opinion, only the opportunity to obtain a competent and impartial one." (Emphasis in original) Djadi, 528 A.2d at 506. As we stated in Brown, "an indigent defendant is not entitled to public funds to `shop around' until he finds a `hired gun' with a favorable opinion." . See also DeBolt v. State, 604 S.W.2d 164, 165-66 (Tex. Crim. App. 1980); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872, 876 (1985); Bradford v. State, 512 So.2d 134, 135 (Ala. Crim. App. 1987). Thus, contrary to appellant's assertion, due process does not entitle appellant to a state-funded psychiatric expert to support his claim; rather, due process requires that he have access to a competent and impartial psychiatrist. Ake, 470 U.S. at 83, 105 S.Ct. at 1096. Because this requirement was met, this assignment is without merit.

¶21 As his next assignment of error, appellant claims that the trial court erred by denying his request for a continuance. Appellant states that a continuance was necessary to allow the defense psychiatrist to examine appellant while he was not under the influence of medication. In his motion filed with the district court, appellant explained that it would take two weeks to remove appellant from all medication and would take approximately three weeks to restore his medication to full dosage.

¶22 The grant or denial of a continuance is within the discretion of the trial court and absent an abuse of discretion, this Court will not disturb the trial court's ruling. Walker v. State, 723 P.2d 273, 279 (Okla. Crim. App. 1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986). In Walker, the defendant asked for a continuance in order to allow the defense psychiatrist sufficient time to review medical records. The continuance was refused [778 P.2d 466] by the trial court, and this Court upheld the ruling below, pointing out that the doctor's testimony indicated he had sufficient time to review medical records. Similarly, in the present case, Dr. Von Brauchitsch was asked repeatedly what difficulties he faced in diagnosing appellant. Although he explained many of the problems he encountered, the doctor never mentioned that his examination was hindered by the fact that appellant was on medication. Furthermore, Dr. Von Brauchitsch testified he was able to make a diagnosis and was confident in his diagnosis. In light of these facts, we cannot say the trial court abused its discretion in denying the continuance.

¶23 Next, appellant claims he should not have been shackled during his trial. Before trial, the judge questioned defense counsel as to whether appellant should remain shackled during trial to protect others in the courtroom. Defense counsel agreed that appellant should remain shackled, but asked that precautions be taken to ensure that the shackles were not viewed by the jurors. Defense counsel concedes that no juror reported seeing the leg shackles.

¶24 In Davis v. State, 709 P.2d 207, 209 (Okla. Crim. App. 1985), this Court reiterated the rule that no defendant shall be tried in handcuffs or shackles unless he waives his right. However, in the present case, appellant affirmatively waived his right to be free of shackles. We also note that, on all occasions, appellant was brought into the courtroom before the jury and taken out after the jury had been removed. Defense table was covered by a cloth to prevent the jury from viewing the shackles. Thus, we find no error.

¶25 Appellant also claims that the fact he was shackled during trial indicates he was incompetent. However, as we determined above, sufficient evidence existed to support the jury's determination of competency. This assignment is without merit.

¶26 As his next proposition, appellant urges that error occurred when the trial court refused to allow inquiry into the beliefs of prospective jurors regarding the possibility of determining an accused's mental condition many years after the crime. Appellant argues that such inquiry was necessary to determine "prejudice in jurors who did not believe such retrospective diagnoses could be accomplished." Brief of Appellant, at 35.

¶27 The manner and extent of examination of prospective jurors rests largely in the sound discretion of the trial court and, absent a clear abuse of discretion, the trial court's ruling will not be disturbed. "The purpose of voir dire examination is to ascertain whether there are grounds to challenge for either actual or implied bias and to permit the intelligent exercise of peremptory challenges." Because there is no "definite, unyielding rule" regarding the extent of voir dire examination, "there is no abuse of discretion so long as the voir dire questioning is broad enough to afford the appellant a jury free of outside influence, bias or personal interest." Manning v. State, 630 P.2d 327, 329 (Okla. Crim. App. 1981).

¶28 In the present case, an exhaustive voir dire was conducted. It occurred over a period of three days and included more than seven hundred (700) pages of transcript. The trial court was lenient in the scope and extent of examination, and we have no doubt the attorneys were able to make intelligent choices as to their challenges. When appellant attempted to question prospective jurors regarding their opinions as to the possibility of diagnosing an accused's mental condition many years after the crime, the following exchange occurred:

MR. BOX: We would like to be able to ask them if they would consider that testimony even though the examination was made some seven years after the commission [of the offense.]

THE COURT: I'll let you ask them will they consider all of his testimony and give it full weight and credit that they deem it's entitled to, but I'm not going to let you specifically ask them — that would be like asking him if this guy testifies that the sky is purple all day everyday [778 P.2d 467] will you believe it or not. You can't do that. I'm not going to let you specifically say if a witness will testify to such will you consider it, but you can ask will they believe —

MR. BOX: May I ask him if he believes — may I ask him if he believes it's possible for a psychiatrist to make diagnosis seven years after the commission of a crime?

THE COURT: No, that's what I'm saying I'm not going to let you do. I'll let you ask will you listen to the psychiatrist and all of his testimony and give it what weight and credit, will you listen and judge it and not judge it in advance, but I'm not going to let you specifically pinpoint things, will you believe this, will you believe that, will you consider this. Consider it all. You can argue that in your closing argument but not now. Objection sustained.

¶29 Clearly, defense counsel was asking questions regarding the credibility of an expert witness. The trial judge was correct in his analysis that credibility is an issue to be argued in closing statements as it is a question of fact for the jury and is not relevant during voir dire proceedings. Hence, the trial court did not abuse its discretion in refusing to allow this particular line of questioning during voir dire examination.

¶30 Next, appellant submits that reversible error occurred when the trial court refused to allow Dr. Von Brauchitsch to state the diagnoses of other physicians which were relied upon by him in reaching his opinion regarding appellant's sanity at the time of the crime. The State argues "that the diagnoses of the other professionals constituted hearsay and, as such, [were] properly excluded from evidence."

¶31 The State's argument is incorrect because 12 O.S. 1981 §§ 2703 [12-2703] and 2705 allow for the admission of facts and data which are not otherwise admissible so long as certain requirements and guidelines are followed:

§ 2703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made know to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

§ 2705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may be required to disclose the underlying facts or data on cross-examination. (Emphasis added)

Sections 2703 and 2705, which are identical to Sections 703 and 705 of the Federal Rules of Evidence, broadened the scope of permissible expert opinions. It is no longer required that all data relied on by the expert be admissible into evidence, "so long as it is `of a type reasonably relied on by experts in the particular field in forming opinions or inferences upon the subject.'" United States v. Lawson, 653 F.2d 299, 302 (7th Cir. 1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). However, the admission of such evidence is within the discretion of the trial court and if admitted, should be accompanied by a limiting jury instruction to clarify that the evidence can only be used to evaluate the credibility of the testifying expert's opinion. See 1 L. Whinery, Guide to the Oklahoma Evidence Code, 245, 255 (1985).

¶32 In the case at bar, the defense expert attempted to relate to the jury the diagnoses of other professionals which he relied on in forming his opinion.³ The prosecutor objected, and a conference was held [778 P.2d 468] at the bench. At the conclusion of this conference, defense counsel agreed that the actual diagnoses of these other professionals were not admissible and the trial judge ruled that such evidence was not properly elicited through the testimony of Dr. Von Brauchitsch. The judge made it clear that the other doctors had been subpoenaed and could be called to testify as to their diagnoses. Later, during the redirect examination of Dr. Von Brauchitsch, the problem arose again. In response to a question by defense counsel, Dr. Von Brauchitsch testified that appellant had been diagnosed by another psychiatrist as mentally ill in 1980, and that the mental illness had existed for at least six months prior to the diagnosis. When asked which doctor reached this diagnosis, the prosecutor objected. The trial judge again addressed the question and explained that his main concern was the inability to cross-examine these other doctors as to their opinions.

¶33 Although the admission of facts or data relied upon by the expert is permissible under Section 2703 and 2705, the admission of such evidence remains within the sound discretion of the trial court. See Whinery, supra, at 245, 255; Scott v. State, 751 P.2d 758, 760 (Okla. Crim. App. 1988); Clark v. State, 95 Okla. Cr. 119, 239 P.2d 797, 800 (1952). In State v. Furman, 158 Mich. App. 302, 404 N.W.2d 246 (1987), the Michigan Court of Appeals dealt with a similar issue. The defendant, charged with first degree murder, asserted the defense of insanity. During trial, the defendant moved to admit a videotaped interview of the defendant by the defense expert psychiatrist. He argued that the videotape should be admitted to show the underlying facts and data relied upon by the psychiatrist. The trial court denied its admission, ruling that the tape would allow the defendant to testify without being subject to oath or cross-examination. On appeal, the trial judge's ruling was upheld "since the defense expert was able to testify about the factual and professional bases of his opinion," thereby diminishing the probative value of the video. Id. 404 N.W.2d at 257.

¶34 Likewise, in the instant case, defendant sought to admit, through the testimony of Dr. Von Brauchitsch, the diagnoses of other doctors. He claimed that the diagnoses were admissible as "underlying facts and data" relied upon by Dr. Von Brauchitsch. The trial judge refused to allow such testimony, stating that if the defendant wanted to place that testimony before the jury, it would be necessary to call the doctors as witnesses in order to allow cross-examination. Also important is the fact that, during redirect examination, defense counsel was able to elicit the fact that appellant had been repeatedly diagnosed as mentally ill.

¶35 Appellant urges that the diagnoses of the other doctors would have boosted the credibility of Dr. Von Brauchitsch, although it could not be used for substantive evidence. See State v. Edwards, 63 N.C. App. 737, 306 S.E.2d 160, 161 (1983). However, because the defense psychiatrist was able to testify regarding all tests, reports, and records made by the other doctors, and because he testified that appellant had been diagnosed as mentally ill in 1980, we believe the probative value of such evidence is diminished. While appellant claims the evidence was crucial, we do not agree insofar as appellant could have called these various doctors to testify regarding their diagnoses and opinions. See United States v. Fountain, 840 F.2d 509, 517 (7th Cir. 1987). Thus, we cannot say that the trial court abused its discretion in refusing this evidence. See United States v. Dyer, 752 F.2d 591, 593 (11th Cir. 1985) (trial court held inadmissible the opinion of a doctor although it was relied upon by the testifying expert).

¶36 As his next assertion, appellant claims that his confession should have been suppressed as it was it violation of his sixth amendment right to counsel.

[778 P.2d 469]

¶37 In the present case, the record reveals that, prior to his arraignment, appellant indicated to Officers Stedman and Shields that he wished to talk to them about the Douglass case, but that he would prefer to wait. Appellant was arraigned on March 23, 1980, and counsel was appointed. Later that afternoon, appellant contacted Officer Stedman and asked for cigarettes. Around 9:00 p.m. that same day, appellant asked to speak with Officer Stedman about the Douglass case because "he had some things on his mind he wanted to get off his chest." (Tr. 1153) Officers Stedman and Shields were notified of appellant's request, and went to the county jail where appellant was being held. The transcribed conversation reveals that appellant was aware the conversation was being taped. He was informed of his rights, and told the officers he wanted to talk with them. The officers then asked him to tell them what happened on October 15, 1979. Appellant narrated the events leading up to the episode at the Douglass home, explained his involvement in the murders, and continued by revealing the events following the murders. During this time, the officers asked only one question. After appellant had finished his story, the officers then asked questions regarding the information he had given them. The discussion lasted for approximately one hour and forty-five minutes.

¶38 With this factual background, we turn to the authority cited by appellant. In Maine v. Moulton, 474 U.S. at 177, 106 S.Ct. at 488, the United States Supreme Court held that a defendant's sixth amendment right to counsel was violated when an undercover informant, also a co-defendant, recorded conversations between himself and the defendant at the request of police. "By concealing the fact that Colson was an agent of the State, the police denied Moulton the opportunity to consult with counsel and thus denied him the assistance of counsel guaranteed by the Sixth Amendment." Id. In reaching this decision, the Court emphasized the "undercover" investigatory techniques employed by the police and the relationship between the informant and the defendant. See Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2629-30, 91 L.Ed.2d 364 (1986).

¶39 After close examination, we do not believe the holding in Moulton is determinative of the present case. The reasoning in Moulton is inapplicable insofar as the instant case does not involve a police agent whose identity was concealed from appellant. Instead, appellant knew that Officers Stedman and Shields were law enforcement officials. Furthermore, unlike Moulton wherein the defendant was not given the opportunity to ask for counsel before the "interrogation" began, appellant had the opportunity to speak with counsel, but instead, summoned the officers and told them he had some things "he wanted to get off his chest." Thus, while some of the broad language in Moulton supports appellant's theory, the rationale and ruling of the case is not dispositive.

¶40 Appellant also relies on Michigan v. Jackson, 475 U.S. at 636, 106 S.Ct. at 1411, for the proposition "any resumption of interrogation after a suspect asserts his right to counsel" is proscribed "unless it is the suspect, not the police who first initiate the contact." Brief of Appellant, at 44. While we agree with appellant's interpretation of Jackson, we must point out the fatal flaw in appellant's reasoning. Jackson proscribes "police initiate[d] interrogation after a defendant's assertion . . . of his right to counsel." Id. In the instant case, appellant initiated the conversation by asking to speak with the officers. The police did not initiate any conversation with appellant after his arraignment and there is no indication the officers were attempting to circumvent appellant's right to counsel. Accordingly, Jackson is not determinative of this issue.

¶41 We next consider whether appellant waived his right to counsel during the conversation with Officers Stedman and Shields. As a general rule, a defendant can waive his right to counsel after counsel has been appointed and consent to questioning. Reid v. State, 478 P.2d 988, 999 (Okla. Crim. App. 1971), modified on other grounds, Pate v. State, 507 P.2d 915 (Okla. Crim. App. 1973). Although Moulton and [778 P.2d 470] Jackson are exceptions to this general rule of waiver, the rule remains intact insofar as we have determined that these exceptions are not applicable in the present case. In order to waive his right to counsel, a defendant must voluntarily and intelligently relinquish a known right or privilege.

¶42 Similar to the case at bar is Curliss v. State, 692 P.2d 559 (Okla. Crim. App. 1984), wherein the defendant asserted he was denied assistance of counsel. Although this Court agreed that the defendant's right to counsel had attached, we held that the defendant had waived this right. An in camera hearing revealed that appellant was advised of his rights, indicated he understood those rights, and was asked if he wanted his attorney present to which he replied in the negative. Under these circumstances, we determined the defendant had waived his right to counsel during the questioning. Likewise, in the present case, appellant initiated the contact with police officers, told them he wanted to discuss the Douglass case, was advised of his constitutional rights and indicated he understood his rights. He was then asked "having these rights in mind do you wish to talk with us now?" to which appellant responded "yes, sir." Accordingly, we find that appellant waived his right to have counsel present during the interview. This assignment is without merit.

¶43 Finally, in his last assignment of error, appellant claims the State's burden of proof was improperly shifted by the instructions given regarding sanity. Specifically, he argues the State was relieved of proving the requisite intent because the jury was instructed that the law presumed him to be sane. Although this Court recently resolved this issue in Brewer v. State, 718 P.2d 354 (Okla. Crim. App. 1986), cert. denied, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 169 (1986), appellant urges us to reconsider our holding regarding the validity of Oklahoma Uniform Jury Instruction — Criminal (OUJI-CR) No. 730 (1981).

¶44 The rule that "every man is to be presumed to be sane" has endured for over a century. Leland v. Oregon, 72 S.Ct. 1002, 1006, 96 L.E. 1302 (1952). We see no reason to depart from this rule. In Brewer, this Court, approving the rebuttable presumption of sanity, explained that Oklahoma Uniform Jury Instruction — Criminal (OUJI-CR) No. 730 (1981) was an incorrect statement of law as it deprived the State of a presumption which was legally correct.

¶45 The purpose of jury instructions is to place before the jury a correct and full statement of the law which is applicable to the case. See Rounds v. State, (Okla. Crim. App. 1984). Hence, a complete statement of the law requires the jury be informed of the rebuttable presumption of sanity. We therefore affirm our ruling in Brewer. See Morris v. State, (Okla. Crim. App. 1988). This assignment is without merit.

¶46 For the reasons mentioned above, the judgment and sentence is AFFIRMED.

LANE, V.P.J., and BUSSEY and LUMPKIN, JJ., concur.

BRETT, J., specially concurs.

Footnotes:

¹ It is this writer's opinion that the ruling in Ake must necessarily be extended to include any expert which is "necessary for an adequate defense." See 18 U.S.C.A. § 3006A(e). This view is consistent with the view held in at least forty other states, as those states, either by legislative enactment or judicial decision, have acknowledged that any expert "necessary for an adequate defense" will be provided once the defendant makes the requisite showing. See Ake v. Oklahoma, 470 U.S. at 79 n. 4, 105 S.Ct. at 1094 n. 4. See also State v. Martinez, 734 P.2d 126 (Colo.Ct.App. 1986) (polygraph examiner); Estes v. State, 725 P.2d 135 (Idaho 1986) (investigator and technical analysis expert); State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985), cert. denied, 474 U.S. 1022, 106 S.Ct. 575, 88 L.Ed.2d 558 (1985) (hypnosis expert); State v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981) (survey analysis expert). This view is also consistent with current federal statutes. See 18 U.S.C.A. § 3006A(e); United States v. Moss, 544 F.2d 954 (8th Cir. 1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 822, 50 L.Ed.2d 797 (1977) (optometrist); United States v. Sanders, 459 F.2d 1001 (9th Cir. 1972) (physician); United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982) (business consultant); United States v. Barger, 672 F.2d 772 (9th Cir. 1982) (investigator).

² This Court does not interpret Ake to mandate an "independent" psychiatrist in the sense that appellant is allowed to choose the psychiatrist. Instead, Ake requires that if an examination is necessary, it shall be conducted by a competent and impartial psychiatrist. In his brief, appellant implies that because all three doctors were compensated with state funds, their opinions were biased. Brief of Appellant, at 23. However, after scrutinizing the transcripts and record, there is no indication of bias. As stated in Djadi v. State, 528 P.2d at 505, state-funded psychiatrists are "not partisans of the prosecution though their fee is paid by the State, any more than is assigned counsel for defense beholden to the prosecution merely because he is . . . compensated by the State. . . . [I]t is certain that once an accused is evaluated by state funded, impartial and competent psychiatrists, that constitutional duty, if any, ends. . . ." In the present case, appellant had access to three competent psychiatrists.

³ Although Dr. Von Brauchitsch never stated that the reports and tests made by other doctors was "of the type reasonably relied upon," as is required by Section 2703, this Court may take judicial notice that psychiatrists customarily use such information to make a diagnosis. See Lawson, 653 F.2d at 302 (n. 7).