dissenting.
I dissent only as to this Court’s ruling as it relates to the denial of an independent expert witness. In 1985, this Court previously denied Conklin’s claim under Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985) which, ordinarily, would serve as a procedural bar. However, since that time, this Court has considered and decided Ake claims using a more detailed standard. See Roseboro v. State, 258 Ga. 39 (365 SE2d 115) (1988). Using the more detailed *559standard, a panel of the Eleventh Circuit Court of Appeals unanimously determined that the trial court acted unreasonably in denying Conklin the funds necessary to present an effective defense. Conklin v. Schofield, 366 F3d 1191, 1209 (2004).
Ordered July 12, 2005. Mark E. Olive, for appellant. Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.I further conclude that this denial was prejudicial with respect to the sentencing phase of Conklin’s trial under the standard announced in Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967). In the sentencing phase of the trial, the State has the burden of proof to show that the aggravating circumstances exist to warrant the imposition of the death penalty. Conklin sought to obtain an independent expert to further challenge the conclusions of the state’s pathologist with regard to the timing of the knife wounds.
The evidence of Conklin’s guilt is overwhelming. The denial of an expert witness in the guilt/innocence phase, therefore, is not substantial. However, the denial of an independent expert witness is substantial to combat the State’s expert witness on the question of whether the aggravating circumstances exist to warrant the imposition of the death penalty. The timing of the knife wounds is critical to the question of whether Conklin tortured the victim or, instead, went to extreme measures in an effort to dispose of the body which was Conklin’s sole defense. Based on the foregoing, I would grant the stay and certificate of probable cause on this basis and, accordingly, conclude that a new sentencing trial is warranted.