noting the Court has consistently rejected the notion that the ag-gravator is standardless or all-inclusive.
How later courts described this case
- noting the Court has consistently rejected the notion that the ag-gravator is standardless or all-inclusive.
- finding "[t]he State presented circumstantial evidence refuting [Appellant's] statement," and therefore the "trial court did not err in neglecting to sua sponte instruct the jury on exculpatory statements"
- holding that the phrase “that person” in the context of the jury instruction presupposes a living human being
- holding when the State disproves a defendant's statement, the district court commits no error by not submitting an exculpatory statement instruction
Written by the judges who cited it.
The opinion
LUMPKIN, Judge:
Concur in results.
I concur in the Court’s decision to affirm the judgment and sentence in this case. However, I disagree with the Court’s conclusion that the principles enunciated in Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), concerning state funded psychiatric expert witnesses, have been extended to any expert necessary for an adequate defense. See Hawkins v. State, — P.2d-,-, 66 OBJ 31, 37 (Okl.Cr.1995). The cases cited in the opinion in support of the Court’s conclusion have not extended Ake to any expert other than a psychiatric expert. In addition, the cases are limited in application as cases wherein the defendant did not make the requisite showing of need for an expert.
As a result of need for guidelines for the compensation of expert witnesses after the Ake decision, the Legislature enacted 22 O.S.Supp.1985, § 464(B). This section limited the expenditure of state funds for expert witnesses to cases wherein the death penalty was a possible sentence, the defendant made a showing of financial need and the requested expert was necessary to the defense. Section 464(B) provides in pertinent part:
B. When a person is charged with a criminal offense where such person faces the possibility of a death sentence, the court may, upon application of the defendant demonstrating that an expert witness is necessary to prepare the defense and that the defendant is financially unable to pay for such services, provide access to such witnesses and other services as are reasonably necessary to permit the defendant to adequately prepare for trial and at any subsequent proceeding by authorizing counsel to obtain such services. The court will rule on the reasonableness of the request for expert witnesses and other services by the defendant....
Thus, it is Section 464 which sets the criteria for the appointment of an expert and is limited to a “person charged with a criminal offense where such person faces the possibility of a death sentence”.
However, it now appears the above comments are relevant only in an evaluation of the historical perspective relating to Ake . This statute was repealed in 1991 when the Indigent Defense System was reorganized. See 22 O.S.1991, § 1355.4. Recent amendments to that act have made the above discussion merely an academic exercise. The Legislature’s amendment of The Indigent Defense Act, 1994 OHa.Sess.Laws Ch. 328 § 3(D), places the decision to fund any defense expert witness with the Executive Director of the OHahoma Indigent Defense System. This provision provides:
When an attorney has been appointed in accordance with the Indigent Defense Act, in any county, and needs investigative, expert or other services, a request for compensation for such services shall be made to the Executive Director on a form provided by the Executive Director. The Executive Director may authorize compensation at a reasonable hourly rate, subject to funds budgeted and available to the OHa-homa Indigent Defense System.
This amendment, together with other statutory changes, appears to properly place the funding for all aspects of indigent defense in *980 the Executive Department rather than continuing to drain the resources of the Judicial Department through the Court Fund of the district courts.