McGregor v. State

Court of Criminal Appeals of Oklahoma

McGregor v. State

1987 OK CR 22, 733 P.2d 416, 1987 Okla. Crim. App. LEXIS 309

CourtCourt of Criminal Appeals of Oklahoma

DecidedFebruary 10, 1987

DocketP-87-90

StatusPublished

Cited by18 cases

This text of 1987 OK CR 22 (McGregor v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGregor v. State, 1987 OK CR 22, 733 P.2d 416, 1987 Okla. Crim. App. LEXIS 309 (Okla. Ct. App. 1987).

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Opinion

ORDER GRANTING WRIT OF MANDAMUS

On September 24, 1986, this Court remanded 728 P.2d 846 (Case No. CRF-83-58 below) to the District Court of Hughes County for an evidentiary hearing to determine whether the petitioner was entitled to a court-appointed psychiatrist under the holding of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). On remand, the petitioner filed a motion requesting the district court to hold the hearing ex parte. The motion was denied, and the petitioner now petitions this Court for a writ prohibiting inclusion of the district attorney at the hearing and ordering the district court to conduct the evidentiary hearing ex parte.

The intention of the majority of the Ake Court that such hearings be held ex parte is manifest from the following passage:

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. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for assistance of a psychiatrist is readily apparent.... In such a circumstance, where the potential accuracy of the jury’s determination is so dramatically enhanced, and where the interests of the individual and the State in an accurate proceeding are substantial, the State’s interest in its fisc must yield.

Id. at 1097.

NOW, THEREFORE, being fully advised in the premises, we are compelled to agree with the petitioner’s assertion that there is no need for an adversarial proceeding, that to allow participation, or even presence, by the State would thwart the Supreme Court’s attempt to place indigent defendants, as nearly as possible, on a level of equality with nonindigent defendants.

IT IS THEREFORE THE ORDER OF THIS COURT that the evidentiary hearing ordered by this Court be conducted ex *417 parte; and that petitioner be required to show by competent evidence that he falls within the provisions of Ake. The Honorable Respondent is further ordered to make findings of fact and conclusions of law all of which shall be contained in a transcript to be transmitted to this Court for review.

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ORDER GRANTING WRIT OF MANDAMUS

On September 24, 1986, this Court remanded 728 P.2d 846 (Case No. CRF-83-58 below) to the District Court of Hughes County for an evidentiary hearing to determine whether the petitioner was entitled to a court-appointed psychiatrist under the holding of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). On remand, the petitioner filed a motion requesting the district court to hold the hearing ex parte. The motion was denied, and the petitioner now petitions this Court for a writ prohibiting inclusion of the district attorney at the hearing and ordering the district court to conduct the evidentiary hearing ex parte.

The intention of the majority of the Ake Court that such hearings be held ex parte is manifest from the following passage:

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. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for assistance of a psychiatrist is readily apparent.... In such a circumstance, where the potential accuracy of the jury’s determination is so dramatically enhanced, and where the interests of the individual and the State in an accurate proceeding are substantial, the State’s interest in its fisc must yield.

Id. at 1097.

NOW, THEREFORE, being fully advised in the premises, we are compelled to agree with the petitioner’s assertion that there is no need for an adversarial proceeding, that to allow participation, or even presence, by the State would thwart the Supreme Court’s attempt to place indigent defendants, as nearly as possible, on a level of equality with nonindigent defendants.

IT IS THEREFORE THE ORDER OF THIS COURT that the evidentiary hearing ordered by this Court be conducted ex *417 parte; and that petitioner be required to show by competent evidence that he falls within the provisions of Ake. The Honorable Respondent is further ordered to make findings of fact and conclusions of law all of which shall be contained in a transcript to be transmitted to this Court for review.

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Bluebook (online)

1987 OK CR 22, 733 P.2d 416, 1987 Okla. Crim. App. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgregor-v-state-oklacrimapp-1987.

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