specially concurring.
I concur in the Court’s decision to affirm the judgment and sentence in this case. However, the Court repeats an error committed in Salazar v. State, 852 P.2d 729, 735 (Okl.Cr.1993) regarding the scope of the right to expert witnesses. The Court in Salazar incorrectly stated “[pjursuant to Ake v. State, 778 P.2d 460, 464 n. 1 (Okl.Cr.1989), an indigent defendant is entitled to any expert ‘necessary for an adequate defense.’ See Washington v. State, 836 P.2d 673 (Okl.Cr.1992).” Id. A review of the citation to Ake reveals the footnote cited is not a holding by this Court but only a personal comment by the author of the opinion. In Washington the Court noted in passing the decision in “Ake v. Oklahoma dealt specifically with psychiatric experts, but did not preclude the possibility that the principles of Ake should be extended to include any expert which is ‘necessary for an adequate defense’.” 836 P.2d at 674. The Court found a proper showing had been made for psychiatric expert witness assistance but limited its decision to a determination that a proper showing of need had not been made for other experts. Therefore, our current jurisprudence has not been extended to “any expert necessary for an adequate defense”. We must guard against an improvident extension of a rule of law through a generalized use of syntax held out to be a decision of the Court when in fact it is mere dicta enunciated by one judge’s perspective on a particular issue. While this Court might ultimately reach the decision ascribed to a prior Court, that decision has not yet been rendered.
Further, our jurisprudence does not even support the use of the analysis that an indigent defendant is entitled to any expert necessary for an adequate defense when determining whether a defendant is entitled to state funds for an expert witness. In Munson v. State, 758 P.2d 324, 330 (Okl.Cr.1988) this Court stated:
Appellant relies primarily on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake, however, has not been extended to include investigative or expert assistance other than a psychiatrist. See Woodard v. State, 743 P.2d 662, 664-67 (Okla.Crim.App.1987); Standridge v. State, 701 P.2d 761, 764 (Okla.Crim.App.1985). After Ake, the United States Supreme Court declined to specify what, if any, showing would entitle an indigent accused to investigative or other expert assistance, finding no deprivation of due process where the defendant “offered little more than undeveloped assertions that the requested assistance would be beneficial....” Caldwell v. Mississippi, 472 U.S. 320, 324, [n. 1], 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985). Most recently, only Justices Marshall and Brennan have agreed to confront the issue of “whether and when an indigent defendant is entitled to non-psychiatric expert assistance.” Johnson v. Oklahoma, 484 U.S. 878, [880], 108 S.Ct. 35, 37, 98 L.Ed.2d 167 (1987) (Marshall, J., dissenting to certiorari denial, joined by Brennan, J.). It has been held that the effective assistance guarantee of the due process clause requires a reversal on appeal from a denial of such assistance “only where a defendant has established prejudice by clear and convincing evidence.” Mason v. Arizona, 504 F.2d 1345, 1352 (9th Cir.1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975). Here, we cannot say appellant has demonstrated substantial prejudice from the lack of the foregoing expert and investigative assistance. See Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir. 1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987).
*600In Shelton v. State, 793 P.2d 866, 873-874 (Okl.Cr.1990), Appellant’s co-defendant, the Court applied the following analysis:
Relying on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Appellant next contends the trial court denied him due process by refusing to either appoint an investigator to assist with his defense or grant his attorney travel funds to be used for investigation of his case. Ake requires that the trial court appoint a psychiatrist or psychologist to assist with the defense when a defendant makes an ex parte preliminary showing to the trial judge that his sanity is likely to be a significant factor at trial. 470 U.S. at 83, 105 S.Ct. at 1096. In this case, Appellant did not attempt an insanity defense. In Standridge v. State, 701 P.2d 761 (Okl.Cr.1985) this Court left open the question whether the Ake holding extended to assistance other than a psychiatric expert. Subsequently, this Court has held Ake does not mandate the appointment of an investigator. Vowell v. State, 728 P.2d 854 (Okl.Cr.1986). In Castro v. State, 745 P.2d 394, 399 (Okl.Cr.1987) cert. denied 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988) we held the trial court did not err in denying defendant’s pre-trial motion for expense money in order to continue to interview witnesses and prepare for trial. In the instant case, Appellant has not demonstrated he was denied access to evidence which is material to either guilt or punishment. Appellant has failed to show substantial prejudice from the lack of these requested funds and the appointment of an investigator. We find the trial court properly denied Appellant’s request for an appointed investigator and travel funds. See Munson v. State, 758 P.2d 324 (Okl.Cr.1988), cert. denied 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989).
I find the evidence supporting the especially heinous, atrocious or cruel aggravator more substantial than enunciated by the Court. The victim was chained in the barn and repeatedly sexually violated over an extended period of time. This constituted both physical abuse and torture in addition to the extreme mental cruelty outlined by the Court relating to the anguish inflicted on the victim regarding not only the safety of her children, but the realization she would not see them again. The Court should consider all of the evidence leading to the ultimate taking of the victim’s life. It is for this reason I find the record also supports a finding of serious physical abuse as set forth above and also evidenced by the victim being hog-tied, pushed into the lake and held down in the water, struggling for her last breath of air. The Appellant confessed to police he watched the terror in her eyes as she drowned. This is a case which contains overwhelming evidence of an especially heinous, atrocious or cruel murder.