U.S. v. Dube, No. 75-1034

• Decision Date: 30 June 1975
• Docket Number: No. 75-1034
• Citation: U.S. v. Dube, 520 F.2d 250 (1st Cir. 1975)
• Parties: UNITED STATES of America, Appellee, v. Roland William DUBE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 250

520 F.2d 250

UNITED STATES of America, Appellee, v. Roland William DUBE, Jr., Defendant-Appellant.

No. 75-1034.

United States Court of Appeals First Circuit.

Argued May 5, 1975.

Decided June 30, 1975.

Peter L. Murray, Portland, Maine, by appointment of the Court, Murray, Plumb & Murray, Portland, Maine, was on brief, for appellant.

Peter Mills, U. S. Atty., for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

Defendant Dube was tried on an indictment charging him with robbery of a federally insured bank. He did not deny that he committed the robbery, but introduced the testimony of a psychiatrist and a psychologist that he was insane when he committed the offense. The prosecution did not present expert opinion evidence but relied instead on cross-examination and the lay testimony of two bank tellers and Dube's accomplice to rebut his case. Dube moved for a judgment of acquittal on the ground that the prosecution had failed as a matter of law to sustain its burden of proving his sanity beyond a reasonable doubt, but the motion was denied. The jury returned a verdict of guilty and Dube appeals.

A criminal defendant is presumed sane, but the introduction of evidence of insanity dispels the presumption and subjects the prosecution to the burden of proving sanity beyond a reasonable doubt. Beltran v. United States, 302 F.2d 48, 52 (1st Cir. 1962). Insanity is a jury question unless a reasonable man viewing the facts and reasonable inferences therefrom in the light most favorable to the prosecution must necessarily possess a reasonable doubt as to the defendant's sanity. United States v. Coleman, 501 F.2d 342 (10th Cir. 1974). The nature and quantum of rebuttal evidence sufficient to present a jury question is to some extent determined by the strength of the case for insanity. United States v. Bass, 490 F.2d 846, 851 (5th Cir. 1974). There is no general principle that the prosecution must counter defendant's expert medical evidence with expert testimony of its own. See United States v. Shackelford, 494 F.2d 67 (9th Cir.), cert. denied, 417 U.S. 934, 94 S.Ct. 2647, 41 L.Ed.2d 237 (1974). The expert testimony is not conclusive even where uncontradicted; its weight and credibility are for the jury to determine, United States v. Lutz, 420 F.2d 414, 415 (3d Cir.), cert. denied, 398 U.S. 911, 90 S.Ct. 1709, 26 L.Ed.2d 73 (1970), and it may be rebutted in various ways apart from the introduction of countervailing expert opinion. ¹

We do not think the evidence in this case was such that a reasonable man must necessarily have entertained doubts as to defendant's sanity. Both Dr. Voss, the psychiatrist, and Dr. Bishop, the psychologist, testified that in their opinion defendant was a schizophrenic and substantially incapable of conforming his conduct to the requirements of the law at the time of the crime. ² They arrived at those diagnoses nearly five months after the robbery and only a week before trial. Dr. Voss's opinion was based on two hours of interviews and Dr. Bishop's on a one-hour interview and three hours of intelligence and personality testing. Diagnoses based on such minimal observation are suspect. Mims v. United States, 375 F.2d 135, 146 (5th Cir. 1967). Though both examined and diagnosed defendant separately, they subsequently discussed his case together before testifying. Neither had any prior acquaintance with defendant nor did either treat him at any time. In fact, in contrast to most of the cases defendant cites, he had no organic manifestations, had never received any psychiatric treatment and had experienced no earlier abnormal episodes of any kind. Id. Some of the factors the experts relied on in reaching their diagnoses were contradictory or unconvincing. ³

Most importantly, Dr. Voss's diagnosis was based almost entirely on the subjective history narrated by defendant and his counsel, see United States v. Ingman, 426 F.2d 973 (9th Cir. 1970), and Dr. Bishop undoubtedly interpreted the test results in light of the history he received. Both testified that they were able to detect malingering and that defendant could not fabricate a history suggesting schizophrenia, but of course a jury would not be bound to believe these assertions. Id. Indeed the factual assumptions they derived from Dube's narrative, on which they predicated their conclusions, did not comport with the testimony at trial. On the basis of defendant's statements, both regarded the robbery as compulsive and irrational, but the testimony of Mrs. Kyllonen, the accomplice, furnished abundant evidence of a carefully planned and executed crime. ⁴ The experts' testimony also seemed to rest in part on the notion that bank robbery is an irrational activity in the first place, making the competence of a bank robber at least suspect. ⁵ Both concluded that defendant was shy, a "loner," unable to form emotional attachments to others, but Mrs. Kyllonen testified that she was in love with defendant, that they had lived together for as long as three weeks before the robbery and that they had arranged to get back together after defendant disposed of some stolen checks in New York. She also testified that during the period immediately after the robbery she did not notice anything peculiar about defendant's activities. Since expert opinion rises no higher than the reasons on which it is based, Dusky v. United States, 295 F.2d 743 (8th Cir. 1961), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1962), we cannot say that it would be unreasonable to discount the testimony of Drs. Voss and Bishop heavily. We agree with our concurring brother that the prosecution was remiss in not offering psychiatric testimony of its own. However, on all the evidence we think the court correctly allowed the case to go to the jury. See United States v. Coleman, supra.

Affirmed.

LEVIN H. CAMPBELL, Circuit Judge (concurring).

I find this a difficult case to analyze though, on the facts, I concur in the result. The court dwells on the inadequacy of the psychiatrist's and psychologist's diagnoses. While in certain respects I think it is overly critical, I agree that the jury was entitled to be skeptical of opinions of insanity based upon relatively brief examinations made several months after the crime and at a time when Dube had everything to gain from a finding of insanity. There were, besides, indications from which a jury might wonder if the experts were confusing insanity in the criminal sense with a less fundamental disorder.

Still it is not simple to identify the affirmative evidence from which the jury could find defendant sane beyond a reasonable doubt. Certain conclusions, could, it is true, be drawn from Dube's girl friend's description of his conduct before and after the crime. She had lived with Dube for several weeks and was in his company when he fled. While the defense argues that by selecting a bank to rob on the spur of the moment, Dube behaved in a bizarre manner, this behavior does not necessarily compel an inference of mental abnormality; and his conduct during and after the robbery, including precautions to avoid detection such as discarding the gun and driving to a city where he felt the police were less likely to be on the lookout, seems rational enough. The two tellers, who saw him briefly during the robbery, observed nothing bizarre, and the jury was able to add to this evidence its own observations of Dube while in the courtroom. Thus, there was evidence that Dube at certain times had behaved in a way which, to the average eyes, might seem normal. Still one wonders by what standard the fleeting glimpses of behavior transmitted by Dube's girl friend and the tellers allowed a finding of sanity beyond a reasonable doubt. ^* Dr. Voss, the psychiatrist, testified that the girl friend's version of Dube's behavior was consistent with a diagnosis of schizophrenia. Whether or not that is so, it is questionable whether her association with Dube was extensive enough, and her behavioral testimony detailed enough, to permit a positive diagnosis of sanity either by a layman or an expert.

Yet not without some hesitation I think the jury was entitled to receive help from another quarter. In Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), the Supreme Court did not characterize the presumption of sanity as belonging to that category of presumption which vanishes once the defense shows evidence of insanity. Instead, it stated,

"If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond a reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal. . . ."

160 U.S. at 488, 16 S.Ct. at 358 (Emphasis supplied).

Except for the quoted reference in Davis (which was the case that established the federal rule requiring the prosecution to prove sanity beyond a reasonable doubt) there has been little attention paid in federal cases to whether the presumption of sanity, once questioned, continues to have evidentiary force. Some courts, like the court here, see it as a presumption that evaporates once evidence of insanity is introduced. Yet viewed as a common sense inference that a person without marked symptoms to the contrary is likely to be sane, I think the presumption is entitled to be given reasonable weight in determining whether on all the evidence the Government gets to a jury.

Massachusetts courts have for years relied upon the presumption of sanity as sufficient to take a case to the jury notwithstanding an absence of affirmative evidence of sanity....