Banks v. State ( 1991 )

PARKS, Judge, specially

concurring:

It continues to be the opinion of this writer that the ruling in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), “must necessarily be extended to include any expert which is ‘necessary for an adequate defense.’ ” Ake v. State, 778 P.2d 460, 464 n. 1 (Okl.Cr.1989). Before a defendant is entitled to such assistance, however, he must first make the requisite showing of need. Id. In the present case, I agree with the majority that appellant has failed to demonstrate either that he was denied access to material evidence or that he suffered substantial prejudice from the lack of the requested experts. (Majority at 1293). Accordingly, I agree that the trial court did not err in denying the same.

Furthermore, I continue to view the so-called “anti-sympathy” instruction in the second stage unnecessary and confusing to the jury where mitigating evidence has been introduced. See Fox v. State, 779 P.2d 562, 579 (Okl.Cr.1989) (Parks, P.J., concurring in part/dissenting in part). However, I must yield my view to that of the majority of this Court as a matter of stare decisis.