concurring in results.
I concur in the results reached by the Court in this case, and agree that all issues raised by Petitioner, except ineffective assistance of appellate counsel, are barred by the doctrine of res judicata or waiver. Therefore, the issues addressed by the Court are not determined on the merits but only as the law and facts relate to the sole issue of adequate representation by appellate counsel. I agree that Petitioner was not denied effective assistance of counsel and his petition must be denied.
I must continue to dissent to the Court’s application of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The Court continues to state that the decision in Ake requires an ex parte hearing for a defendant to make a showing that sanity at the time of the offense is to be a significant factor at trial and thus the need for an expert witness. See McGregor v. State, 754 P.2d 1216 (Okl.Cr.1988). However, the Court in McGregor relied not on the holding in Ake but merely an inference that an ex parte hearing is required when, in fact, the Ake decision did not set down that requirement. The Court in Ake held that when a defendant demonstrates that his sanity at the time of the offense is to be a significant factor at trial, the State must assure him access to a competent psychiatrist, but the Court did not mandate a procedure to determine that fact. The Oklahoma Legislature, in response to Ake, enacted 22 O.S.Supp.1985, § 464, subd. B and § 1176, to provide access to necessary expert witnesses. Neither of these statutory provisions require or infer an ex parte hearing. Absent a determination of the unconstitutionality of a statutory provision, we are bound to apply it. When reviewed in light of the overriding preference against ex parte hearings in our jurisprudence, these statutes cannot be interpreted to require, or even allow, ex parte hearings. I would therefore continue to urge this Court to overrule McGregor and apply the statutory provisions of 22 O.S.Supp. 1985, § 464, subd. B and § 1176.