Appeal from the District Court, Hughes County.

ORDER REMANDING FOR EVIDENTIARY HEARING

¶1 The appellant, Billy Keith McGregor, was found guilty of First Degree Murder (21 O.S. 1981 § 701.7 [21-701.7]) and sentenced to death in the District Court of Hughes County, Case No. CRF-83-58.

¶2 Prior to trial, defense counsel requested that a psychiatrist or psychologist be appointed to examine the appellant to evaluate the possibility of an insanity defense and to provide certain mitigating evidence concerning appellant's mental condition. The motion was denied, apparently on the basis that the judge believed he was without authority to make such an appointment. Since then, the Honorable United States Supreme Court has declared that the federal constitution requires that the State, at a minimum, assure the defendant access to a competent psychiatrist if the defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985).

¶3 Although defense counsel did not make an exemplary record on this issue, appellate counsel has presented a substantial amount of evidence that leads this Court to believe there is a grave risk that the sanity issue was inaccurately resolved. See Ake, 105 S.Ct. at 1096.

¶4 NOW THEREFORE, after considering the matters presented to this Court and being sufficiently advised in the premises, this Court finds that this appeal should be remanded to the Hughes County District Court for the purpose of conducting an evidentiary hearing to determine whether, under the holding of Ake, the appellant was entitled to a court-appointed psychiatrist.

¶5 IT IS SO ORDERED.

ED PARKS, P.J.

TOM BRETT, J.

HEZ J. BUSSEY, J.