Lead Opinion
OPINION
¶ 1 James Joseph Fitzgerald was tried by jury and convicted of Count I, Robbery with a Firearm in violation of 21 O.S.1991, § 801; Count II, Attempted Robbery with a Firearm in violation of 21 O.S.1991, § 801; Count III, First Degree Murder (Malice Aforethought) in violation of 21 O.S.1991, § 701.7; and Count TV, Robbery with a Firearm in violation of 21 O.S.1991, § 801, in the District Court of Tulsa County, Case No. CF-94-3451. The jury found that Fitzgerald (1) was previously convicted of a felony involving the use or threat of violence; (2) committed the murder in order to avoid or prevent a lawful arrest or prosecution; and (3) probably would commit criminal acts of violence that would constitute a continuing threat to society. In accordance with the jury’s recommendation, the Honorable E.R. Turnbull sentenced Fitzgerald to life imprisonment plus a $10,000 fine on Counts I, II, and IV, and death on Count III. Fitzgerald has perfected his appeal of this conviction and raises sixteen propositions of error. After thorough consideration of the record before us, we find pervasive error in the second stage of trial compels us to remand Count III for resen-tencing.
¶ 2 Fitzgerald spent the evening of July 15, 1994, with Regina Stockfleth and other friends. In the early morning hours of July 16, Fitzgerald, armed with an SKS assault rifle, robbed the Git-N-Go store at 7494 East Admiral Street in Tulsa. After the robbery he returned to Stockfleth’s house, wearing a bandanna around his neck and carrying $55 cash in a Git-N-Go bag. He was asked to leave.
¶ 3 Fitzgerald arrived at the Git-N-Go store at 6938 East Pine about 2:45 a.m. The clerk, ■ William Russell, took the SKS rifle away from Fitzgerald. Russell pointed the rifle at Fitzgerald but apparently could not release the safety on the weapon. Fitzgerald came over the counter, and the two scuffled. Russell escorted Fitzgerald (who had the rifle) out of the store and locked the doors. As Russell retreated behind the store counter, Fitzgerald turned and fired, shattering the glass doors. His bandanna mask had fallen, and his face was visible. Fitzgerald pointed the gun in Russell’s direction and fired several shots, then ran. Police recovered eight spent casings and six bullets from various locations in the store, and one bullet was found in Russell’s body. That bullet had passed through six cigarette packages, two counter partitions, and a roll of calculator tape before entering Russell near his left armpit. The bullet pierced his lung and spine and broke two ribs. Russell had massive internal bleeding and died of a gunshot wound to the chest.
¶ 4 After leaving the Pine Street store, Fitzgerald robbed the Git-N-Go store at 903 North Yale at approximately 3:00 a.m. He wore a bandanna mask and threatened the clerk with the SKS assault rifle. After this robbery Fitzgerald briefly returned to his parents’ home, then left the state. In Illinois he traded the SKS rifle for $100 and a .357 magnum handgun. He was arrested in Missouri. Fitzgerald confessed to robbing the two stores and attempting to rob the store on Pine Street, but insisted he did not intend to injure or kill Russell.
¶ 5 Fitzgerald was represented by appointed counsel until a month before trial, when he exercised his right to proceed pro se. Trial counsel remained in the courtroom as standby counsel and assisted Fitzgerald in framing objections and making arguments to the court. Fitzgerald presented no evidence in mitigation in the second stage of the proceedings (punishment on the capital charge) or the third stage (punishment on the robbery charges).
¶ 6 In Proposition I Fitzgerald claims the trial court erred by accepting his purported waiver of the constitutional right to counsel where there was. no determination of competency and the purported waiver was not knowingly and intelligently made thus violating constitutional provisions. A criminal defendant has the absolute right to counsel, but he may waive that right if he clearly and unequivocally declares his wish to proceed pro se and the trial court determines: (1) the defendant is competent to make that decision and (2) the waiver is voluntary, knowing and intelligent.
¶ 7 Fitzgerald was represented by appointed counsel throughout the preliminary proceedings. On April 18, 1996, a hearing was held at which Fitzgerald’s motion to proceed pro se was granted (trial began May 20). The trial court questioned Fitzgerald extensively to determine whether he was dissatisfied with his attorney’s representation and whether he understood the consequences of his decision. Fitzgerald said he and his attorney did not agree on his defense but stated he was satisfied with her qualifications and experience. He said self-representation was his right as an American citizen and indicated he preferred to take control of his case since he would have to live with the outcome. The trial court found Fitzgerald was “in control of your faculties, that you understand what’s going on, that you understand the conversations, the meaning and the consequences of conversations that we’re having.”
¶ 9 Fitzgerald also gave a knowing, intelligent, and voluntary waiver. He denied his decision was coerced during the April 18, 1996, hearing and does not suggest coercion on appeal. Fitzgerald had several prior convictions and was familiar with the criminal justice system. He was informed of the nature of the charges, offenses, and range of punishment and repeatedly advised that this was a bad decision. Over the course of several hearings, the trial court explained courtroom procedure and the role of each party, including Fitzgerald and standby counsel. Offered several opportunities to reconsider his decision, Fitzgerald clearly and unequivocally stated his intention to proceed pro se
¶ 10 In Proposition III Fitzgerald claims the trial court showed obvious bias in this case depriving him of the right to an impartial judge in violation of constitutional provisions. The Oklahoma Constitution guarantees a defendant a right to a fair, impartial trial not tainted by the personal bias or prejudice of the trial court.
¶ 12 Fitzgerald also complains of a comment Judge Turnbull made, out of the hearing of the jury, during a discussion of evidence to be offered in the second stage of trial. The State had filed notice that it would introduce an Indiana armed robbery conviction to support the aggravating circumstance that Fitzgerald had committed prior violent felonies. When Fitzgerald offered to enter a Brewer
¶ 13 Finally, Fitzgerald claims bias in the trial court’s refusal to instruct in mitigation that Fitzgerald was under the influence of alcohol at the time of the crimes. Judge Turnbull sustained the State’s objection to this instruction without comment but observed in his Capital Felony Report that evidence was presented Fitzgerald was under the influence of alcohol at the time of the crimes. While we find this decision puzzling (see Proposition IX), nothing in the record supports an inference that the decision was made because of bias against Fitzgerald.
¶ 14 The trial court must perform its duty to see both sides have a fair trial.
SECOND STAGE PROPOSITIONS CUMULATIVELY REQUIRING REVERSAL
¶ 15 Fitzgerald claims in Proposition II that the trial court erred by denying Fitzgerald expert funds after a proper Ake showing,
¶ 16 Fitzgerald tirelessly and constantly requested that the State provide funds under Ake v. Oklahoma
¶ 17 Applying the three-part test set forth in Ake, we balance; (1) Fitzgerald’s private interest in the accuracy of the proceedings; (2) the State’s interest affected by providing the assistance; and (3) the probable value of the procedural safeguards sought and the risk of inaccuracy in the proceedings without the requested assistance.
¶ 18 Fitzgerald claimed that the combination of his juvenile-onset diabetes, probable brain damage from his head injury, and drinking habits (including drinking before committing the crimes) affected his mental processes and deprived him of the ability to form the intent to kill necessary for malice murder. To qualify for expert assistance, a defendant must make “an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense ....”
¶ 19 Over the course of these hearings, Fitzgerald presented: (1) evidence admitted in the preliminary hearing that he had been drinking and was under the influence of alcohol at the time of the crime; (2) medical evidence that he suffered from juvenile-onset diabetes and had received a gunshot wound to the head requiring surgery in 1985; (3) medical articles on the physical, psychological, and psychosocial effects of juvenile-onset diabetes; (4) information that the combination of alcohol and juvenile-onset diabetes could result in poor judgment, poor impulse control, and exaggerated emotional responses; (5) an affidavit detailing Fitzgerald’s physical and psychological symptoms corresponding with symptoms discussed in the medical literature; (6) an affidavit including a neuropsychologist’s general explanation of the symptoms which, occurring after a head wound, may signal brain injury, and a description of the neuropsychological tests necessary to determine the existence and extent of such an injury; (7) an affidavit from the then Deputy Chief of the Capital Trial Division, Oklahoma Indigent Defense System (OIDS), who believed that Fitzgerald would qualify for expert funds were he being defended by OIDS; (8) information about Fitzgerald’s childhood and family life resulting from his diabetes; and (9) Dr. Taylor’s current psychological evaluation noting Fitzgerald’s head injury and diabetes, diagnosing him as depressed, alcoholic, with poorly regulated diabetes and probable neurological impairment, and strongly recommending neurological testing plus consultation with a juvenile-onset diabetes expert. This is far more than, as the State argues, an “underdeveloped claim”; Dr. Taylor’s report, combined with the other evidence, certainly contained enough information to meet the threshold requirement for - a preliminary showing.
1Í 20 Fitzgerald argued to the trial court and claims on appeal that this information is sufficient to meet the Ake threshold. We agree. In applying for funds to hire experts, Fitzgerald is merely required to show his physical and psychological condition at the time of the crime will be a significant factor in his defense. Ake stated a defendant has a right to expert assistance “to help determine whether the insanity defense is viable,” as well as to conduct an appropriate examination and assist a defendant in evaluating, preparing, and presenting his defense.
¶ 21 Fitzgerald made a showing of need when he presented detailed evidence, including a psychologist’s report,
¶ 22 We first address Fitzgerald’s claim that he was deprived of the right to present a first-stage defense. Since his arrest, Fitzgerald has stated he did not intend to kill Russell. Fitzgerald claimed he needed the experts during the first stage of trial to effectively present his defense that voluntary intoxication, under his special circumstances, rendered him incapable of forming the intent necessary for malice murder. Voluntary intoxication is not a complete defense to malice murder but may be considered in determining whether a defendant had the intent to kill during the commission of the crime.
¶ 23 Having found error in the first stage proceedings, we must determine whether harmless error analysis applies. Fitzgerald relies on Frederick v. State
¶ 24 Having concluded harmless error analysis applies, we must determine whether this error is harmless beyond a reasonable doubt.
¶ 25 Fitzgerald also claims in this section that the trial court’s denial of funds under Ake resulted in an equal protection violation. He claims that had his crimes been committed in any county except Oklahoma or Tulsa counties he would have been represented by OIDS and entitled to funding without asking the trial court. The only support in the record for his claim that he would have received funding for experts from OIDS is an affidavit by the then Chief of the OIDS Capital Trial Division, who claimed he believed that, in a case with similar facts, OIDS would authorize payment for the requested experts. However, the affiant was not himself in a position to authorize such expenses, and his opinion is at best an educated guess. Absent some indication that Fitzgerald was in fact treated differently from other capital defendants similarly situated, we will not reach the merits of this claim.
¶ 26 We next address Fitzgerald’s claim he was deprived of the right to present mitigating evidence. Fitzgerald argues that, without experts, he was denied the opportunity to present mitigating evidence. He argues the mere facts of the gunshot wound and his diabetic condition are not particularly mitigating, and he needed experts to present the effects these.conditions had on his physical, mental and social development, as well as the effect of his diabetes on his family and childhood. Indeed, the State effectively argued at trial that neither of these conditions was mitigating and suggested the gunshot wound might work in aggravation.
¶ 27 It is settled that a defendant may present in mitigation any aspect of his record or character, and any circumstances of the crime.
¶ 28 Fitzgerald was also entitled to expert assistance to rebut the State’s charge that he would be a continuing threat to society. Ake held that a capital defendant was entitled to expert assistance where the State presents psychiatric evidence of his future dangerousness.
¶ 29 Fitzgerald was prejudiced by his inability to respond to the continuing threat charges with expert testimony. He presented no evidence in mitigation. The jury could only consider the possible mitigating circumstances listed in the instructions, without any indication of why those factors were actually mitigating. The State argued that neither his diabetes nor the 1985 head wound were in any way mitigating and suggested that the fact Fitzgerald engaged in armed robbery after being shot in the head made that factor aggravating, if anything. Only the requested expert testimony could have fully explained the mitigating nature of these conditions. The trial court implicitly recognized this. After both sides had rested in second stage, the judge again denied Fitzgerald’s Ake motion and remarked:
I think that Fitzgerald could have introduced any and all mitigating evidence that he wished to, and that much of the information, if not all of the information that he wished to inform this jury of would,would have been understood by the jury, and they would have found out whether they thought that was appropriate or not. He chose in all instances not to present any mitigating evidence whatsoever. 44
If the jury could have understood much, if not all, of Fitzgerald’s evidence without experts, then experts were necessary to present all the mitigating evidence.
¶ 30 We must determine whether this error is harmless. Although Fitzgerald should have had experts to rebut the continuing threat charge, this evidence would have been probative of much more than that aggravating circumstance. Thus, this Court cannot simply invalidate that circumstance and reweigh the remaining evidence. As Fitzgerald presented no evidence at all in mitigation, we cannot speculate about what these experts might have said nor weigh the evidence actually, presented against the evidence offered in aggravation.
¶ 31 In Proposition IV Fitzgerald argues the trial court erred by death qualifying the. jury without fulfilling its legal duty to life qualify the jury, resulting in a guilt/death prone jury in violation of constitutional provisions. Voir dire is designed to discover actual and implied bias and determine whether jurors’ views would substantially impair the performance of juror duties in accordance with the trial court’s instructions and the juror oath.
¶ 32 On March 23, 1995, Fitzgerald filed a Motion to Life Qualify Of [sic] the Jury. Fitzgerald requested that, after jurors were death-qualified, the trial court ask seven enumerated questions (or substantially similar questions).
¶ 33 We must determine the proper remedy for this error. In Hammon we reversed for resentencing where the trial court refused to allow the defendant to life-qualify the jury. In Cannon we held it was not error for the trial court to refuse to ask life-qualifying questions where trial counsel successfully did so. This situation falls between the two. We need not determine whether this error is reversible per se but find it contributes to an accumulation of error which necessitates reversal of the second stage of the proceedings and a remand for resentenc-ing on the capital murder charge.
¶ 34 In Proposition VI Fitzgerald claims the trial court erred by excluding evidence to rebut continuing threat, by failing to protect Fitzgerald’s right to reliable sentencing, and by denying requested instructions on the meaning of life without parole. Only the second of these claims has merit.
¶ 35 Fitzgerald first complains in Subproposition A that the trial court excluded evidence from Mr. Steve Strode, from the Department of Corrections, who would have testified about the conditions under which Fitzgerald would serve a sentence of life imprisonment without the possibility of parole. Fitzgerald claims this information should have been presented to the jury under Simmons v. South Carolina.
¶ 36 Fitzgerald correctly argues in Subproposition B that evidence of the nature of his conviction for escape was admissible to rebut evidence introduced in aggravation. A defendant has a right to a fair opportunity to defend against the State’s accusations, and the rules of evidence should not be mechanistically applied to defeat that right in a capital case.
¶ 37 After discussing the proposed instructions, standby counsel presented Defendant’s Exhibit 6, a non-eertified copy of the Nebraska Information, which showed that the escape conviction was a non-violent walkaway from a work release program. The State did not contest the non-violent nature of the escape. The prosecutor admitted that the Information was the same document attached to the certified copy of the Judgment and Sentence introduced by the State to support the aggravating circumstances but claimed that the State would not be allowed to admit a non-certified document and what was “sauce for the goose was sauce for the gander.” This is, of course, an inaccurate perception of the law regarding a capital defendant’s right to present evidence rebutting aggravating circumstances. The trial court appeared more concerned that Fitzgerald had not attempted to introduce the Information before he rested. Standby counsel replied that was her mistake, but the trial court noted this matter was not included in the list of things counsel had said they needed to do before bringing the jury back in and ruled the document was untimely and inadmissible.
¶ 38 Although both parties had rested, the jury had not been instructed nor argument heard, and the document could easily have been admitted into evidence for use in argument. The record reflects a genuine misunderstanding which resulted in Fitzgerald’s surprise at having to defend against this charge in this stage of the case. To reflexively apply the rules of evidence on document authentication when no party questioned the actual authenticity of the document and to refuse to admit the evidence because it was not introduced a few moments earlier before the jury completely deprived Fitzgerald of the ability to respond to the State’s accusations. This is exactly the sort of action the Supreme Court condemns.
¶ 39 Finally, Fitzgerald argues in Sub-proposition C that the trial court erred in denying his requested instructions on the meaning of life without parole. Fitzgerald acknowledges we have previously held it is not error to refuse a defendant’s request to instruct on life without parole.
¶ 40 In Proposition VII Fitzgerald claims the trial court’s failure to conduct a Wallace hearing, in light of his failure to introduce any mitigation in the penalty phase of trial, requires a new sentencing hearing. Fitzgerald presented no mitigating evidence.
¶41 The record does not support such a conclusion in this case. It is apparent Fitzgerald understood the choice between life and death. However, while the record shows Fitzgerald was aware he could call witnesses in mitigation, it is not clear that Fitzgerald understood the purpose or importance of mitigating evidence. After he rested, standby counsel made a record confirming that Fitzgerald chose not to present mitigating evidence because the trial court denied him funds to retain experts who might have effectively presented evidence of his physical and psychological disabilities to the jury (see Proposition II). Fitzgerald’s mother was in the courtroom- available to testify as a mitigating witness, and he was aware he could have called her. Fitzgerald said in closing:
I’ve had the opportunity more than once to get up on the stand and open up my whole past to you. I don’t know why but I didn’t do that. I allowed that not to happen. I feel quite strongly that it should come from me, my past should come from me first, before you heard from Mr. Harris. I was advised that that might not be too smart, and unfortunately I listened to that advice, I think that that was wrong of me. I can’t change it.64
This admission, plus his failure to call any family member or other person who could speak about him, suggests Fitzgerald did not understand the effect personal information about him could have on the jury’s deliberations. As the Supreme Court has often noted, the Constitution requires individualized sentencing,
¶ 42 In Proposition IX Fitzgerald argues the trial court by instruction relieved the State of the burden of proof and precluded consideration of mitigating evidence in violation of constitutional provisions. Fitzgerald complains of two instructions in first' and second stage, respectively, concerning whether he was under the influence of alcohol at the time of the crimes. In first stage the trial court instructed that voluntary intoxication did not render a person’s actions less criminal. In second stage the trial court refused to instruct in mitigation that Fitzgerald was under the influence of alcohol. At trial, the two surviving robbery victims testified Fitzgerald did not appear to be drunk; one said Fitzgerald might have been intoxicated but appeared to know what he was
¶ 43 Fitzgerald requested an instruction on voluntary intoxication in the first stage but withdrew the request after the trial court denied him funds for experts.
¶ 44 In the second stage Fitzgerald requested the jury be instructed in mitigation that he was under the influence of alcohol at the time of the crimes. Although the trial court found in its Capital Felony Report that there was evidence Fitzgerald was under the influence at the time of the capital offense, it refused to include this as a mitigating circumstance. Fitzgerald claims this omission, coupled with the instruction above (which was incorporated into the second stage proceedings), prevented the jury from considering any evidence of intoxication as mitigating evidence. This argument is persuasive. In Ledbetter v. State,
¶ 45 In Proposition XVII Fitzgerald argues the cumulative error in this case was, in and of itself, an arbitrary factor that requires reversal. There are five separate serious errors in the sentencing stage. They include errors in jury selection as well as evidentiary errors and the refusal of a factor in mitigation. Any one of these, standing alone, might not require reversal. We need not decide whether these errors are individually reversible because in combination they denied Fitzgerald a fair and reliable sentencing proceeding. The trial was well conducted, and the prosecutor behaved fairly and with propriety. However, in the second stage a pro se defendant was unable to life-qualify his jury, was denied experts to assist in presentation of mitigating evidence, chose not to present such evidence without guidance or inquiry from the trial court, was denied the opportunity to rebut evidence of an aggravating circumstance, and was denied the chance to list a circumstance of the crime in mitigation. We were unable to find any of these errors individually harmless beyond a reasonable doubt. Their combination requires reversal.
Notes
. Faretta v. California,
. Godinez v. Moran,
. Cargle v. State,
. Braun,
. Id. at 788; Edwards v. State,
. April 18, 1996 Motions Hearing Transcript at 10.
. Faretta,
. Braun,
. Okla. Const. art II, § 6; Bryan v. State,
. Bryan,
. Bryan,
.Wilkett v. State,
. Judge Turnbull was referring to Fitzgerald's request for experts to explain the effects of juvenile-onset diabetes, alcohol, and possible neurological impairment from the head wound.
. Brewer v. State,
. Arnold v. State,
. Bryan,
.
. 22 O.S.Supp.l997, § 1355.4(D).
. Ake,
. Rogers v. State,
. Washington v. State,
. 22 O.S.Supp.1997, § 1355.4(D) (expert witnesses approved from a list of authorized expert contractors; non-experts authorized by the Executive Director upon request and approval). In Toles v. State,
. 19 O.S.Supp.1997, § 138.8. Payment is pursuant to procedures established by the governing board of the court fund.
. Ake,
. Ake,
. Rogers,
. Caldwell v. Mississippi,
. Ake,
. Cf. Starr v. Lockhart,
.The fact Fitzgerald was examined and diagnosed by Dr. Taylor does not change our decision that he was entitled to his requested experts under Ake. Dr. Taylor, a psychologist, diagnosed Fitzgerald as best she could but was not qualified to adequately diagnose or explain Fitzgerald’s conditions which went to his ability to form intent. Dr. Taylor explicitly recommended further testing by appropriate experts in those areas. This is not a case where a defendant is provided with an expert but wishes to have access to more or better experts. Rather, Fitzgerald was examined by Dr. Taylor in an effort to show that he needed appropriate expert assistance to prepare his defense — he was, in fact, trying to use an expert to get an expert. Ake emphasized that a defendant is entitled to appropriate expert assistance. Ake,
. Edwards v. State,
. Jackson v. State,
.
. Brewer v. Reynolds,
. Chapman v. California,
. . Skipper v. South Carolina,
. November 2, 1995 Motions Hearing Transcript at 9-10.
. Ake,
. Ake,
. Castro,
. Rogers,
. Ake,
. McLin v. Trimble,
. Trial Transcript at 1154 (emphasis added).
. Frederick v. State,
. Castro,
. Allen v. State,
. Wainwright v. Witt,
. Morgan v. Illinois,
. Morgan,
. Cannon v. State,
. Hammon,
. Summarized, the questions were: (1) Whether the juror believed the death penalty was ordinarily the only appropriate punishment for first degree murder; (2) If there was any case in which the juror would not favor the death penalty as punishment for premeditated malice murder; (3) Whether the juror could consider a sentence less than death after convicting Fitzgerald of first degree murder; (4) Whether, after convicting Fitzgerald of malice murder, the juror would presume that life or life without parole was proper until that presumption was overcome by proof beyond a reasonable doubt that the death penalty was the only appropriate penalty; (5) After hearing all the evidence and finding Fitzgerald guilty of first degree murder, would the juror have any preconceived notions about penalty; (6) Would
. The State argued the questions were improper because jurors should only be asked whether they could consider the three alternative punishments. This was an inaccurate statement of law. The record does not reflect whether the trial court adopted this reasoning in reaching its decision.
.
. Hain v. State,
. Hamilton,
. Chambers v. Mississippi,
. One can only assume the State recognizes this, as it does not respond to the Supreme Court cases at all and merely cites cases regarding authentication of documents which is not the issue here.
. Bryan,
. The State mistakenly argues that Fitzgerald did present mitigating evidence. Three times the trial court noted Fitzgerald chose not to present mitigating evidence. The State’s argument is based on Instruction 7, which listed mitigating factors gleaned from evidence presented in the first stage. The existence of an instruction listing mitigating factors is separate from the question of whether Fitzgerald introduced mitigating evidence in the second stage of trial. He did not.
.
. Arizona v. Fulminante,
. Trial Transcript at 1183.
. See, e.g., Lockett,
. None of these accounts supported Fitzgerald's claim that he went to several bars with a female friend before committing the crimes.
. Fitzgerald argued tirelessly at trial and on appeal that expert testimony was necessary to explain why his drinking that night, combined with his diabetes and possible residual brain damage from the gunshot wound to his head, would so impair his judgment as to prevent him from forming the intent to kill necessary for malice murder.
.Edwards,
. Jackson,
. Crawford v. State,
.
. The State merely argues in response to this proposition that there can be no cumulative error where no error occurred. This argument ignores the State’s own repeated suggestion that error in many of these propositions was harmless.
. Fitzgerald’s Application for Evidentiary Hearing And/Or Request to Supplement the Record on Direct Appeal, filed September 29, 1997, is DENIED.
Concurrence Opinion
concurs in results:
¶ 1 I do not disagree with the result in this opinion which affirms the conviction but remands for resentencing. However, I do disagree with the analysis that is applied regarding the procedure for request of expert witnesses.
¶ 2 To appreciate and understand the application of this statutory reference, a review of the history of the statute, together with revisions and ultimate repeal of 22 O.S.Supp. 1985, § 464, must be made. From statehood until 1991, Title 22 had contained a Section 464. Up until 1985, that particular section related only to the right to counsel prior to arraignment and provided for compensation of counsel. However, in 1985, Section 464 was amended to address the Ake
¶ 3 That repealer was at the end of the Indigent. Defense Act which. created the
¶ 4 As the opinion notes in footnote 25, we held in Toles v. State,
¶ 5 In the previous provisions of Section 464, the Legislature specifically delegated to the trial court the responsibility to make decisions relating to expert witnesses and their compensation. Likewise, in the 1992 provision, the Legislature specifically said those expert witnesses shall be paid by the Court fund pursuant to procedures established by the governing board of the Court fund. The Legislature did not include the District Court in that process. It seems the logical interpretation, as we look at that 1991-92 session laws revamping the Indigent Defense System, is as we said in Toles, the Legislature made a conscious decision that the Indigent Defense System is going to be responsible for its own expenses.
¶ 6 A reading of these statutory amendments reveals that now the Court fund board sets a budget for the Public Defender in Oklahoma and Tulsa counties. The Chief Public Defender is then responsible for managing that budget and remaining within the budgetary authorizations. The Chief Public Defender in Tulsa and Oklahoma counties acts just as the Executive Director of O.I.D.S. acts. The Chief Public Defender receives requests, makes a determination of
¶ 7 In this case, Appellant was initially determined to be indigent and counsel from the Tulsa County Public Defender’s Office was appointed to represent him. When the trial court granted Appellant’s request to represent himself, the Tulsa County Public Defender’s Office was directed to serve as stand-by counsel. Appellant then filed his request for a state funded expert witness with the trial court rather than proceeding under Section 138.8. Under the record in this ease, it does not appear the District Court of Tulsa County complied with the provisions of Section 138.8 of Title 19. Under the current statutory framework, a judge is not to be involved in authorizing or compensating expert witnesses within the context of the facts presented in this case. That budget is to be established by the governing board of the Court fund for the Public Defender’s office. Granted, that Court fund board would consist of a District Judge, Associate District Judge and District Court Clerk of the County as set out in 20 O.S.1991, § 1302. But by its repeal of Section 464 of Title 22, the Legislature has changed the procedure. Because of this change in procedure established by the Legislature, the analysis set forth in Fitzgerald, relating to the trial judge, is no longer applicable within the State of Oklahoma. The only time the District Court should become involved in the issue of funding, as it relates to the Public Defender, is if the Public Defender believes insufficient funds have been provided to fulfill his or her statutory and constitutional role. An action could be filed in the District Court to mandamus the providing of those funds. However,’ other than the sufficiency of the overall budget, the individual decisions relating to the expenditure of those funds is the same for the Public Defender in Oklahoma and Tulsa counties as it is for the Executive Director of O.I.D.S.
¶ 8 It would be appropriate to remand this case to the District Court of Tulsa County to have an Evidentiary Hearing for a record to be made to determine the procedure being utilized in Tulsa County and if Tulsa County has complied with this statutory provision. If Tulsa County has not complied with the statutory provision, then this Court would have an evidentiary base upon which to make findings and. enter directives as a part of our remand for resentencing. We should give serious consideration to this issue regarding the application of the specific statutory revisions in this case rather than the general statements of our belief of what should be done under Ake. As we set out in Banks v. State,
. I remain committed to the view expressed in Rogers v. State,
. Ake v. Oklahoma,
. Laws 1992, c. 303, § 5, eff. May 27, 1992.
. This interpretation is consistent with the limitations on the expenditure of funds set forth in 20 O.S.Supp.1997, § 1304(B)(19). That section provides in pertinent part:
B. The term "expenses” shall include the following and none others:
19. Reasonable compensation for expert, investigative or other services authorized by the court for indigent defendants not represented by a county indigent defender or the Oklahoma Indigent Defense System, if requested; ... (emphasis added).
This language means that when the defendant is represented by OIDS or Tulsa or Oklahoma County Public Defender, claims for experts witnesses must go through those entities and are not payable from the court fund.