Brinkley v. United States, 73-1444

• Decision Date: 09 April 1974
• Docket Number: No. 73-1444,73-1445.,73-1444
• Citation: 498 F.2d 505
• Parties: Sherrill Gary BRINKLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

498 F.2d 505 (1974)

Sherrill Gary BRINKLEY, Appellant, v. UNITED STATES of America, Appellee.

Nos. 73-1444, 73-1445.

United States Court of Appeals, Eighth Circuit.

Submitted December 11, 1973.

Decided April 9, 1974.

Rehearing Denied May 14, 1974.

Rehearing Denied July 12, 1974.

Henry J. Osterloh, Little Rock, Ark., for appellant.

Wilbur H. Dillahunty, U. S. Atty., and John Forster, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before BRIGHT and STEPHENSON, Circuit Judges, and STUART,^* District Judge.

Rehearing En Banc Denied July 12, 1974.

BRIGHT, Circuit Judge.

Sherrill Gary Brinkley appeals from a jury verdict in the United States District Court for the Eastern District of Arkansas, finding him guilty of one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a) (2), and one count of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371. Appellant alleges six grounds of error, including three relating to his unsuccessful assertion of the insanity defense.

The evidence at trial revealed that a series of extortionate telephone calls were made to banks in the Little Rock, Arkansas, area during September and October of 1972 in which the caller threatened to detonate bombs in bank buildings or in the homes of bank officers if various demands for money were not met. A tape recording of one of these calls was obtained by a bank security officer, and bank employees and officers identified the voice as that of the man who had also made the other calls. The voice of the caller was identified by Brinkley's ex-wife and by several close friends as being that of appellant. Testimony of two indicted co-conspirators identified appellant as a participant with them in the theft of dynamite, as the man who ordered one of them to wait at a specific location for a "drop" of money from a bank, and as the man who placed a "package" beneath the window of a bank officer's home at a location which was subsequently the scene of a violent explosion. Other witnesses supplied miscellaneous pieces of corroborating evidence.

In his trial strategy, appellant sought to rely on the defense of not guilty by reason of insanity at the time of the commission of the offense. In this regard, he alleges the following errors: (1) the trial court refused to grant appellant's pretrial request for appointment of an independent psychiatrist to examine the appellant at government expense pursuant to 18 U.S.C. § 3006A(e) (1); (2) the trial court refused to give a jury instruction on insanity; and (3) the Government failed to carry its burden of proof regarding appellant's sanity beyond a reasonable doubt.

I.

In United States v. Schultz, 431 F.2d 907 (8th Cir. 1970), this court examined the denial of a request for psychiatric examination within the framework of 18 U.S.C. § 3006A(e) of the Criminal Justice Act now § 3006A(e)(1) which provides:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court * * * shall authorize counsel to obtain the services.

In Schultz, we held that it was error for the trial court to refuse appointment of an independent psychiatrist where evidence indicated that within the recent past the defendant had acted bizarrely, had been hospitalized as a mental patient on prior occasions, and had been diagnosed as a mental patient. 431 F.2d at 911-912. In attempting to enunciate some general standard for determining when expert services would be "necessary" under § 3006A(e), we stated:

No standard can be arbitrarily articulated covering all circumstances under which an accused demonstrates his entitlement under the Act to services of experts to present an adequate defense. Trial counsel, of course, makes his request in the context of pretrial investigation of the circumstances surrounding an alleged crime. The discretion possessed by the district court would appear to be somewhat narrower than its power under Fed.R.Crim.P. 17(b), the rule by which a federal district court may authorize a financially pressed defendant to produce witnesses necessary for trial through subpoena at governmental expense. In evaluating a 17(b) request, the trial court may consider the nature and effect of the evidence proposed by the defendant—whether material or not, whether cumulative in nature or not. The trial court possesses a broad discretion to grant or deny a 17(b) application. * * * In our view, the courts ought to apply a more lenient standard in determining the need for services of experts in preparation for trial than that applied under 17(b). 431 F.2d at 909-910 (citations omitted).

We further stated:

While a trial court need not authorize an expenditure under subdivision (e) for a mere "fishing expedition", it should not withhold its authority when underlying facts reasonably suggest that further exploration may prove beneficial to the accused in the development of a defense to the charge. Considering the purpose of § 3006A(e) of the Criminal Justice Act to provide the accused with a fair opportunity to prepare and present his case, the application of the accused\'s counsel for such services must be evaluated on a standard of reasonableness. 431 F.2d at 911 (footnote omitted).

Since our decision in Schultz, other circuits have considered this problem and endeavored to provide additional guidance to trial courts faced with such requests.

In United States v. Taylor, 437 F.2d 371 (4th Cir. 1971), the Fourth Circuit noted that, by making expert psychiatric assistance available, § 3006A(e) (1):

goes beyond other provisions relating to determinations of mental illness in enabling a defendant and his attorney to have expert medical assistance throughout the preparation and presentation of an insanity defense.

Once counsel has concluded that these services are necessary to enable him properly to evaluate and present possible defenses, the statute entitles him to secure them for his client on a showing of necessity. 437 F.2d at 377 (footnote omitted).

The court concluded that while "the required quantum of this showing has not often been the subject of review", it was manifest that expert services were required where there was evidence of the defendant's extensive history of mental disturbance, his record of impulsive behavior, his own desire for treatment, and previous expert medical opinion to the effect that he was "psychotic" and lacked sufficient internal controls over his conduct. 437 F.2d at 378. The court remanded the case for an independent psychiatric examination with orders to the trial court to grant a new trial if the report indicates the existence of "a substantial question of criminal responsibility." 437 F.2d at 379.

The Fifth Circuit in United States v. Theriault, 440 F.2d 713 (5th Cir. 1971), emphasizing that standards under § 3006A(e) (1) "are not susceptible of arbitrary articulation but can best be developed on a case by case basis", id. at 715, remanded that case for a new trial since no ex parte hearing had been held and the trial record clearly indicated the need for an expert psychiatric witness to aid the defense. In a special concurrence, Judge John Minor Wisdom examined the legislative history of the Criminal Justice Act as well as relevant constitutional policies and concluded as follows:

I would read the statute, therefore, as requiring authorization for defense services when the attorney makes a reasonable request in circumstances in which he would independently engage such services if his client had the financial means to support his defenses. The trial judge should tend to rely on the judgment of the attorney, who has the primary duty of providing an adequate defense. Such reliance is recommended by the difficulty of requiring the trial judge to take an adversary view of the case. * * * Additionally it avoids forcing the defendant to reveal private information to the court in order to support the request for such services. Further it comes close to putting the indigent defendant in the same position as a non-indigent defendant, where the defense attorney would determine whether to engage the services.

There is a limitation contained in the statute. A maximum amount of $300 is authorized for each expert. This explicit limitation reinforces our interpretation of the requirement of necessity. Congress chose an expenditure limit rather than requiring defendants to demonstrate unusual need for defense services. 440 F.2d at 717 (citations omitted).¹

Judge Wisdom's views have since been adopted by the Ninth Circuit in United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973), which holds that § 3006A(e) (1):

requires the district judge to authorize defense services when the defense attorney makes a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.

In United States v. Chavis, 155 U.S. App.D.C. 190, 476 F.2d 1137 (1973), the District of Columbia Circuit undertook an elaborate effort to "delineate the precise parameters of the requirement" concluding:

The answer to this question of when psychiatric assistance is "necessary" depends upon two variables. First, a judge should consider the likelihood that an insanity defense is warranted. Obviously a court should not be required to appoint a psychiatrist if there is absolutely no reason to think that such a plea would be successful. A trial judge\'s evaluation of this factor could, among other things, be based upon a prior medical history of psychological imbalance, testimony by those acquainted with the defendant regarding his actions and apparent mental state, or the judge\'s own evaluation of the defendant\'s demeanor. Second, the judge

...