¶1concurring in part/dissenting in part:
¶2I concur in the Court’s decision that this case must be remanded for an evidentiary hearing to provide a record which will allow the Court to address the merits of the issues raised. However, I must dissent to the Court’s determination that the evidentiary hearing should be held ex parte, citing Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 1091-92, 84 L.Ed.2d 53 (1985), and McGregor v. State, 728 P.2d 846 (Okl.Cr.1986), as authority.
¶3The Court in McGregorrelied on an inference in Akethat an ex parte hearing is required when, in fact, the Akedecision did not set down a requirement for an ex parte hearing. The Court in Akeheld 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. In fact, the court in Akespecifically left the decision as to how to implement this right to the State. 470 U.S. at 83, 105 S.Ct. at 1096. The Oklahoma Legislature, in response to Ake, enacted 22 O.S.Supp.1985, § 464.B and § 1176, to provide access to necessary expert witnesses. Neither of these statutory provisions require or imply 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 urge this Court to overrule McGregor, in that the decision does not provide an interpretation of our current statutes, and apply the statutory provisions of 22 O.S.Supp.1985, § 464.B and § 1176.