¶1dissenting:
¶2In Ake v. Oklahoma, — U.S.-, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court established landmark guidelines to be used by trial courts in determining when an indigent criminal defendant must be given access to a competent independent psychiatrist. Our task is to evaluate and apply those guidelines to the facts in this case.
¶3The Court, in Ake, identified three factors as being relevant to determining *1038the need for an appointed psychiatrist: First, the private interest of the defendant; second, the governmental interest of the charging jurisdiction; and third, the probable value of the procedural safeguard and the risk of error if the safeguard is not provided. In evaluating the three factors, the Court said: “The private interest in the accuracy of a criminal proceeding ... is almost uniquely compelling _ the governmental interest in denying ... the assistance of a psychiatrist is not substantial .... ” and “considering the pivotal role that psychiatry has come to play in criminal proceedings .... when the State has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be critical to the defendant’s ability to marshall his defense.” Id.at-, 105 S.Ct. at 1094-95.
¶4Applying its constitutional analysis to the facts in Ake, the Court said: “We hold that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue, if the defendant cannot otherwise afford one.” Id.at-, 105 S.Ct. at 1092. This language, however, is intended simply as a statement of the Court’s holding, as dictated by the facts in Ake. Since Ake had clearly demonstrated “that his sanity at the time of the offense [was] likely to be a significant factor at trial,” a broader holding was not necessary. This language was not intended to establish a bright-line rule or to constitute a triggering mechanism, as the majority of this Court indicates, supra at
¶5The Court's analysis in Akeclearly demonstrates that the holding was not intended as a triggering mechanism. Discussing Ake’s right to psychiatric assistance during the sentencing stage of his trial, the Court stated:
Ake also was denied the means of presenting evidence to rebut the State’s evidence of his future dangerousness
.... We have repeatedly recognized the defendant’s compelling interest in fair adjudication at the sentencing phase of a capital case. The State, too, has a profound interest in assuring that its ultimate sanction is not erroneously imposed .... The variable on which we must focus is, therefore, the probable value that the assistance of a psychiatrist will have in this area, and the risk attendant on its absence.
.... Without a psychiatrist’s assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the juror’s minds questions about the State’s proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.
¶6Id.at-, 105 S.Ct. at 1097. Obviously, if a defendant is required in every case to make “a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial,” he would frequently be “denied the means of presenting evidence to rebut the State’s evidence of his future dangerousness.”
¶7Discussing the psychiatric requirement in the context of Ake’s strong showing of need, the Court said: “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. (Emphasis added). Further, on the issue of the need to rebut the state’s evidence of future dangerousness at the sentencing stage, the Court stated: “The foregoing discussion compels a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant’s future dangerousness.” Id.at -, 105 S.Ct. at 1097. (Emphasis added). Clearly, the Court is indicating that the *1039Akesituation represents an egregious example of the denial of assistance. Under such circumstances, the factors indicating a need for assistance are “at their height” and a denial “compels” a reversal. The language should not, however, be interpreted as an indication that a defendant should always be denied assistance in less compelling situations.
¶8A proper interpretation of the Court’s analysis seems to indicate that the probable value of expert assistance and the risk of error involved in a denial of assistance is the most important factor to consider. Therefore, as a general rule, when an indigent defendant is able to make a preliminary showing that expert testimony is likely to be a significant factor at either the guilt or sentencing stage of his trial, or when the State has made expert testimony relevant because of the crime charged, aggravating factors alleged or testimony presented, then the defendant is entitled to State provided access to competent independent expert assistance at trial. As the Court said: “[W]hen the State has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be critical to the defendant’s ability to marshall his defense.” Id.at-, 105 S.Ct. at 1095.
¶9In the present case, the appellant was able to make a preliminary showing that expert testimony was likely to be a significant factor at either the guilt or sentencing stage of his trial. First, he made a request for a court-appointed psychiatrist and other expert assistance. Such a request should put a trial court on notice that expert testimony might play a significant part at trial. Second, the trial court had previously complied with appellant’s request and ordered a psychiatric examination on the question of his competency to stand trial. Third, the psychiatric report indicated that it was the “consensus” of the staff doctors that the appellant was not in need of psychiatric treatment and was competent to stand trial. Consensus is an ambiguous term. It may mean unanimity or it may mean majority. Websters New Collegiate Dictionary (1979). Therefore, the trial court was aware that there might possibly be some disagreement among the doctors as to appellant’s mental condition. Fourth, the psychiatric report indicated that during the period of° the psychiatric examination, the appellant was being maintained on 150 milligrams of Thorazine per day. Thorazine is an extremely powerful psychotropic drug. Its most common use is for the management of manifestations of psychotic disorders. See Physician’s Desk Reference (39th Ed. Barnhart 1985), at 1977. In a special warning box, the Physician’s Desk Reference states that Thorazine “is not the first drug to be used in therapy for most patients with non-psychotic anxiety because certain risks associated with its use are not shared by common alternative treatments _ When used in the treatment of non-psychotic anxiety [it] should not be administered in doses of not more than 100 mg. per day_” Id.Therefore, assuming that the State’s doctors were following standard medical practice, the fact that appellant was being maintained on 150 milligrams of Thorazine per day strongly indicates that the doctors were concerned with “the management of manifestations of psychotic disorders.” Fifth, the psychiatric report recommended that the appellant continue his Thorazine treatment “in order for him to retain his present degree of stability.” The fact that Thorazine therapy was administered during the appellant’s psychiatric examination and the recommendation for continuation belie the psychiatric report’s assertion that the appellant was “not in need of psychiatric/treatment,” and indicate that the doctors entertained serious concern about his mental stability. Sixth, the doctor’s concern about appellant’s mental condition was further illustrated by the fact that the psychiatric report suggested that appellant be referred “to a mental health clinic in his locale for follow-up care on an out-patient basis as might be indicated.” Seventh, the psychiatric report stated: “There has been no behavior displayed on the part of [the appellant] to indicate to the staff that he would be con*1040sidered to be dangerous to himself and/or others in society, at least not as a result of any overt psychotic symptoms elicited during his period of confinement in this hospital.” Given the fact that the State was specifically alleging the aggravating factor of future dangerousness, this statement alone should be sufficient to alert a trial court to the fact that the appellant’s state of mind was likely to be a significant factor at the sentencing stage of the trial. Finally, contrary to the majority’s assertion, supra at 1033, the state raised the issue of the relevance of the appellant’s state of mind by charging him with the aggravating factor of future dangerousness and introducing police and other testimony in an attempt to meet its burden of proof. The use of psychiatric testimony by the State to establish future dangerousness makes a defendant’s need for expert assistance, in the Supreme Court’s formulation, compelling. However, such testimony should not be the triggering factor. A rule making the appellant’s right to assistance on this key issue depend on the prosecutor’s discretion would be untenable. As the Supreme Court stated in Ake: “Without a psychiatrist’s assistance the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the juror’s minds questions about the State’s proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing stage.” Id.at-, 105 S.Ct. 1097. This rationale would seem to apply regardless of whether the State introduces psychiatric testimony.
¶10In a case such as this, where the decision on punishment is difficult, where there is a substantial body of mitigating evidence, where the jury deliberates on the possible penalty for a considerable length of time, and where the trial judge states in his trial report that, “it was a close decision,” and that he was “surprised by the death sentence,” the probable value of psychiatric assistance and the risk of error from its absence are manifest. On that basis, I would, therefore, reverse and remand this case for new trial. Accordingly, I respectfully dissent.