specially concurring:
Reversal of this case on the basis of the ninth assignment of error would represent dramatic extension of Ake v. Oklahoma, — U.S.-, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In the case at bar the defendant made a significantly lesser “preliminary showing that his sanity at the time of the offense is likely to be a significant factor at *1037trial” than did Ake. See id. at-, 105 S.Ct. at 1092. Justice Rehnquist suggested in his dissent to Ake, “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 crime, I would require a considerably greater showing than [that which Ake has made].” Id. at-, 105 S.Ct. at 1101. I would apply the same rule to this case.
Ake should be considered an absolute minimum for the showing that defendant’s sanity at the time of the offense is likely to be h significant factor at trial. Rehnquist wrote that the facts in Ake did not justify the establishment of such a principle. For this Court to follow Ake on a much weaker set of facts is uncalled for. Ake, as Judge Bussey correctly notes in his opinion, involved a defendant diagnosed as psychotic, who advised the court that he would raise a defense of insanity at trial. In that case, the State presented psychiatric evidence against the defendant. Furthermore, Ake was diagnosed incompetent to stand trial. In contrast, the defendant here made no request for an insanity instruction and placed no reliance on an insanity defense. The findings of the examining psychiatrist left no doubt that the defendant was competent to stand trial, and clearly stated that the defendant exhibited no mental illness. Additionally the State did not rely on psychiatric evidence at trial or during sentencing.
Ake reasoned that “the risk of error from denial of such assistance, as well as its probable value, are most predictably at their height when the defendant’s mental condition is seriously in question.” Id. at -, 105 S.Ct. at 1097. Here the defendant failed to raise any question as to his sanity.
The dissenting opinion by Judge Parks suggests that a slight showing of anxieties and emotional problems is sufficient to satisfy the test established in Ake that the defendant make “a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at the trial.” Id. at-, 105 S.Ct. at 1092. The psychiatrists prescribed Thorazine and recommended that the defendant be provided with follow-up care. Notwithstanding the administration of 150 mg. of Thorazine, these facts do not indicate anything more than the presence of anxieties and emotional problems, where the report clearly stated that the defendant exhibited no overt psychotic symptoms or behavior. To hold that every defendant who could make some showing of anxiety and emotional problems is entitled to psychiatric assistance would be equivalent to holding that every defendant is entitled to such assistance. I believe such an extension is clearly beyond that contemplated by the Supreme Court.
The dissent also reads a great deal of doubt into the examination report. Not only are there no doubts apparent from the report, but even if the doubts which the dissent lists were present the defendant did not make an adequate preliminary showing as required by Ake. Ake requires the defendant to take the initiative; a defendant who does not even intend to rely on an insanity defense cannot be said to have sufficiently shown the trial judge that his sanity will be an issue at trial.
The mere request of psychiatric assistance is also not sufficient to meet the test established by Ake. Otherwise, such assistance would be available merely on request without necessity to show cause as required by the Supreme Court.
For the above reasons, I concur in this decision.