U.S. v. Dubray, 87-5409
| Decision Date | 17 August 1988 |
| Docket Number | No. 87-5409,87-5409 |
| Parties | 26 Fed. R. Evid. Serv. 614 UNITED STATES of America, Appellee, v. Pershing DUBRAY, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gary C. Colbath, Rapid City, S.D., for appellant.
Ted L. McBride, Rapid City, S.D., for appellee.
Before ARNOLD and WOLLMAN, Circuit Judges, and TIMBERS, * Senior Circuit Judge.
Pershing Dubray appeals from his conviction for aggravated sexual assault under 18 U.S.C. Sec. 2241. Dubray admits that he committed rape on the Pine Ridge Indian Reservation on March 29, 1987. His only defense at trial was that he was insane at the time of the rape within the meaning of 18 U.S.C. Sec. 17. On appeal, Dubray raises three grounds of error in his trial relating to his affirmative defense of insanity. We find no merit in these grounds, and so we affirm.
On the night of March 28, 1987, Dubray, a nineteen-year-old member of the Oglala Sioux tribe, had been out drinking with friends. In the early morning hours of March 29, he entered the mobile home of a 60-year-old Roman Catholic nun who lived on church property on the Pine Ridge reservation. For approximately four hours, Dubray struggled with the victim, beat her, pinned her to the bed, broke her wrist, threatened to kill her, and raped her.
The next day, police investigators arrested Dubray. After being advised of his rights, Dubray told the police that he had entered the victim's trailer, announcing "Lucifer is here," that he had fought with and raped the victim, and that he had later lost his memory until his arrest. Further investigation revealed that four years earlier, when Dubray was fifteen years old, he had been convicted of raping a 71-year-old nun at the same location under virtually identical circumstances.
At trial, the prosecution presented extensive testimony from the victim of the rape, who gave a detailed account of the attack. The nun testified that her attacker was lucid, speaking to her throughout the attack, and that he appeared to know who she was and where they were. Each side presented psychiatric testimony on Dubray's sanity. Defendant's expert witness, Dr. Lord, testified that Dubray might have had the potential for a transient psychotic episode, which could have produced a moral and cognitive break from reality. The prosecution's expert, Dr. Kennelly, testified that nothing in the victim's account of her attacker suggested that Dubray was suffering from a transient psychosis, and that direct examination of Dubray did not reveal any evidence that he was psychotic at the time of the rape. The jury rejected Dubray's insanity defense, and found him guilty of aggravated sexual assault.
On appeal, Dubray argues that the trial court should have directed a verdict of acquittal by reason of insanity. Dubray claims that the prosecution failed to prove beyond a reasonable doubt that he had raped the victim knowingly within the meaning of 18 U.S.C. Sec. 2241, and that the prosecution failed to present clear and convincing evidence that Dubray was sane at the time of the rape. This argument attempts to combine two distinct issues. The prosecution does have the burden of proving beyond a reasonable doubt that Dubray knowingly raped the victim, in the sense that Sec. 2241 requires that the offender must have consciously performed the acts of violence which constitute aggravated sexual abuse. In this case, there is no real dispute that Dubray possessed the requisite mens rea of the crime. The testimony of the victim was alone more than sufficient evidence to support the jury's conclusion that Dubray knew what he was doing at the time of the rape.
A separate question is whether Dubray, though he consciously committed the rape, was nevertheless insane within the meaning of 18 U.S.C. Sec. 17. Once the prosecution has proved the required mental elements of the crime, a defendant may still establish the distinct affirmative defense of legal insanity by clear and convincing evidence. See United States v. Amos, 803 F.2d 419, 421 (8th Cir.1986). Dubray argues that the evidence at trial overwhelmingly establishes that he was insane, relying heavily on the testimony of both expert witnesses that he suffered from some degree of personality disorder. This argument confuses the ordinary meaning of mental illness with the strict standard of legal insanity created by 18 U.S.C. Sec. 17. The psychiatric diagnoses of Dubray in the record clearly portray someone who is antisocial, poorly adjusted, and emotionally disturbed, and psychiatric medicine may (for all we know) usefully categorize Dubray as mentally ill. The fact that Dubray may be suffering from a mental disease or defect does not, however, establish the legal defense of insanity unless this disease or defect prevented him from appreciating the nature and quality or the wrongfulness of...
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