United States v. Roland William Dube, Jr.

520 F.2d 250, 1975 U.S. App. LEXIS 13918

• Court: Court of Appeals for the First Circuit
• Decided: June 30, 1975
• Docket: 75-1034
• Status: Published

Opinions

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 (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.

1 . In Mims v. United States, 375 F.2d 135, 143-44 (5th Cir. 1967), the court stated that expert testimony may be rebutted

“by showing the incorrectness or inadequacy of the factual assumptions upon which the opinion is based, ‘the reasoning by which he progresses from his material to his conclusion,’ the interest or bias of the expert, inconsistencies or contradiction in his testimony as to material matters, material variations between the experts themselves, and defendant’s lack of co-operation with the expert. Also in cases involving opinions of medical experts, the probative force of that character of testimony is lessened where it is predicated on subjective symptoms, or where it is based on ftarrative statements to the expert as to past events not in evidence at the trial. In some cases, the cross-examination of the expert may be such as to justify the trier of facts in not being convinced by him. One or more of these factors may, depending on the particular facts of each case, make a jury issue as to the credibility and weight to be given to the expert testimony . . (footnotes omitted).

See also United States v. McGraw, 515 F.2d 758 (9th Cir. 1975), holding that defendant’s expert testimony may be rebutted by cross-examination or evidence from which the jury could infer that the defendant’s expert testimony depended upon an incorrect view of the facts.

2 . Dr. Voss qualified his opinion by noting that he of course was not present on the day of the robbery and that his diagnosis was predicated in large part on the defendant’s own description of his thought processes that day, the accuracy and completeness of which are open to grave doubt in the light of the accomplice’s testimony. Dube “remembered very little” of the incident, according to Dr. Voss.

3 . Thus Dr. Bishop opined that Dube’s emotional response was “flat,” a judgment based in part on his “wet fish handshake,” while Dr. Voss characterized Dube as open and friendly. Dr. Bishop also stated that Dube had a “basic ' thought disturbance” illustrated by his response “Holler fire” to the question “If you were the first one in a movie to discover smoke or see a fire, what would you do?” Dr. Bishop considered this response inappropriate since it'deviated from the response given by a majority of 3,000 of the control group, but admitted that Dube’s educational background would affect his response. See United States v. Shackelford, supra.

4 . According to Dr. Bishop, Dube stated he had no intention of robbing a bank when he left home that day, and that he and Mrs. Kyllonen passed a bank while driving along and that he did not know whose idea it was to enter the bank and rob it. Based upon this statement Dr. Bishop concluded that Dube’s behavior was “inappropriate.” Mrs. Kyllonen, however, testified that Dube first discussed robbing the bank after arising that day. He cased and rejected several banks on the ground that they were too well protected, or otherwise unsuitable, and finally chose one which was unprotected, staffed by only two women, empty of customers and about to close, with a parking space for the getaway car nearby. After robbing the bank defendant changed clothing, hid his old clothes, and had Mrs. Kyllonen drive to a hospital parking lot (“he knew just where he wanted to go,” she testified) where they waited for a few hours listening to the radio for a report of the crime. They then counted the money and drove down the coast to avoid capture, and Dube disposed of his gun along the way by tossing it in a river. 'Dr. Bishop was apparently unaware of these details indicating deliberation. Dr. Voss heard Mrs. Kyllonen’s testimony but believed Dube could have planned out a much better robbery, although he could not suggest how.

5 . Dr. Voss testified:

“Q. Well, you wouldn’t expect ordinary people to think that that was the act of a crazy person would you?

A. I wouldn’t know what an ordinary person would think. I would think that the man might be crazy at that point.

Q. Because he robbed a bank?

A. No, I don’t say that anybody who robs a bank is crazy, but 1 would suspect that the person doing it might be under some emotional disorder. I don’t know. You would have to see the person.”

And Dr. Bishop testified “If a rational person were going to rob a bank, to me that’s a rather logical contradiction. . .