516 F2d 916 Brinkley v. United States

516 F.2d 916

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

Nos. 73-1444, 73-1445.

United States Court of Appeals,
Eighth Circuit.

May 14, 1975.

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1

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

2

William H. Dillahunty, U. S. Atty., Little Rock, Ark., for appellee.

3

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

4

ORDER OF AFFIRMANCE IN ACCORDANCE WITH PREVIOUS MANDATE

5

This appeal came before us on December 11, 1973, and we issued our opinion on April 9, 1974, reading in part:

6

Because of our holding in part I of this opinion, the judgment now on appeal is suspended and the case is remanded for an independent psychiatric examination and for a hearing before the district court upon the psychiatrist's report of that examination. If defendant can show prejudice resulting from the denial of expert services at his trial and if defense counsel represents that he will rely upon the psychiatrist's testimony on any retrial, the judgment should be vacated and a new trial granted. Otherwise the judgment will stand affirmed. (Brinkley v. United States, 498 F.2d 505, 513 (8th Cir. 1974).)

7

The district court has complied with this order on remand and after affording defendant the benefit of a psychiatric examination and a hearing thereon has found that "the defendant simply is not shown to have been lacking in substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." Memorandum of district court, March 12, 1975, at 3. The district court thereafter certified the supplementary record to this court.

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8

We have reviewed this supplementary record and agree with the district court. Since the defendant has shown no prejudice from the denial of expert (psychiatric) testimony at his trial, the judgment of the district court must stand as affirmed in accordance with our previous mandate.

9

Affirmed.

*

WILLIAM C. STUART, District Judge, Southern District of Iowa, sitting by designation