concurring in part/dissenting in part.
Initially, I want to compliment the Honorable Charles L. Owens, District Judge, Oklahoma County, on the thorough and scholarly order entered on March 8, 1991. With the limited resources afforded to trial judges in the State of Oklahoma, his order reflects outstanding diligence in seeking to provide the analysis requested in our Order Remanding for an Evidentiary Hearing.
I concur in the Court’s decision as it relates to the conviction of First Degree *678Malice Aforethought Murder (Count I), however, I must dissent to the Court’s decision regarding the First Degree Rape (Count II) conviction.
The Court has applied a broad brush application of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to both counts without analyzing the nature of the requests for expert assistance prior to trial or the application of those requests to the facts of the case. It must be recognized the Appellant did not raise sanity at the time of the offense as a defense in this case. In addition, the record is void of any preliminary showing regarding that issue prior to trial. The request for expert witnesses focused on defending against the charge of First Degree Malice Aforethought Murder both as to the ability of the Appellant to form the malice aforethought element of the offense and the identity evidence provided by the odonto-logical expert and the chemist. Appellant also indicated a need for the psychiatrist as a mitigation witness during the penalty phase of trial. The basis of the pretrial request for experts must be the focal point for determining the effect of the denial of the expert assistance at trial, not what 20/20 hindsight might indicate would have been a better argument to raise. Due to the fact the issues raised prior to trial regarding the need for expert assistance related to the First Degree Malice Aforethought Murder conviction, and not the conviction for First Degree Rape, I would affirm the conviction in Count II.
I am authorized to state Judge JOHNSON joins in this opinion.