Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.
LARRY HOOD
OPINION BY
v. Record No. 092402 JUSTICE LAWRENCE L. KOONTZ, JR.
November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
In a proceeding under the Civil Commitment of Sexually
Violent Predators Act (“SVPA”), Code § 37.2-900 et seq., the
Circuit Court of Pittsylvania County ruled that the respondent
prisoner, Larry Lee Hood, Jr., would not be permitted to
present expert evidence because he had refused to cooperate
with the Commonwealth’s mental health expert during an
assessment examination prior to the filing of the commitment
petition. Hood had contended that because his decision not to
cooperate had been made without the benefit of counsel, he
should have been permitted to rescind that decision once
counsel had been appointed for him and he expressed a
willingness to be examined by the Commonwealth’s expert. In
this appeal, we consider whether the circuit court’s ruling
violates principles of procedural due process.
BACKGROUND
Because this appeal is limited to the consideration of
the issue resulting from a discrete ruling of the circuit
court, we will recite only those facts necessary to our
resolution of that issue. 1 Commonwealth v. Garrett, 276 Va.
590, 593, 667 S.E.2d 739, 741 (2008). In 2001, Hood was
convicted in Pittsylvania County of rape and abduction and was
sentenced to a total of twenty years in prison with eleven
years suspended. Hood was scheduled for release from
confinement by the Department of Corrections on February 5,
2009.
On August 11, 2008, pursuant to Code § 37.2-903, the
Director of the Department of Corrections identified Hood as
qualifying for assessment under the SVPA to determine whether
he should be confined in a mental health facility following
the completion of his active sentence. Following receipt of
notice from the Director that Hood was subject to the
provisions of the SVPA, the Commitment Review Committee
(“CRC”) ordered Hood to undergo a mental health examination as
required by Code § 37.2-904. Glenn Rex Miller, Jr., Ph.D., a
licensed clinical psychologist, was designated by the CRC to
1
In his petition for appeal, in addition to the issue we
decide in this opinion, Hood also assigned error to the
circuit court’s finding that he was a sexually violent
predator, its exclusion of certain evidence concerning the
alleged deficiencies of the in-patient treatment being
provided by the Commonwealth to sexually violent predators,
and to the court’s failure to approve Hood’s proposed
conditional release plan. We refused Hood’s appeal as to
these issues and, accordingly, we need not recite the evidence
relevant to the circuit court’s rulings and judgment thereon.
2
conduct the examination and prepare a report evaluating
whether Hood met the criteria to be civilly committed as a
sexually violent predator under the SVPA.
In his written report, Dr. Miller indicated that he
interviewed Hood in prison on September 12, 2008. At the
outset of the interview, Dr. Miller
advised [Hood] of the purpose of this evaluation and
that all relevant information would be relayed to
the [CRC]. [Hood] verbalized an understanding of
the process, the limitations of his confidentiality,
and the fact that a written report would be
generated. Following notification of this
information, [Hood] declined to participate in the
evaluation. It was explained to [Hood] that a
report would be generated with or without his
participation and that if he chose not to
participate that the [c]ourt “may bar the inmate
from introducing his/her own expert psychiatric or
psychological evidence.”
Dr. Miller further stated that Hood then
asked numerous questions regarding the potential
consequences of hi[s] refusing the evaluation for
approximately 45 minutes. It was explained to him
that [Dr. Miller] was unable to administer advice in
terms of whether or not participation in the
assessment process was in his best interest and that
he needed to make his own determination. [Hood]
eventually determined that it was not in his best
interest to participate in the evaluation despite
the possibility that the court could bar the
appointment of a defense expert.
It is undisputed that prior to deciding not to cooperate with
the Code § 37.2-904 mental health examination, Hood did not
have an opportunity to consult with an attorney about the
consequences of his decision.
3
Because Hood declined to be interviewed further, Dr.
Miller based his evaluation principally upon Hood’s criminal
and prison records, including Hood’s performance on two risk
assessment tests that had been administered by the Department
of Corrections prior to Hood’s referral by the Director to the
CRC. Dr. Miller diagnosed Hood as having “Paraphilia NOS
[and] Non-Consent and Personality Disorder NOS with Antisocial
Traits.” 2 Dr. Miller concluded that “[b]ased on the available
records, Mr. Hood appears to have a mental disorder and
personality disorder that makes it difficult for him to
control his predatory behavior which makes him likely to
engage in sexually violent acts.”
On December 30, 2008, following receipt of Dr. Miller’s
report, the Commonwealth filed a petition in the Circuit Court
of Pittsylvania County seeking to have Hood declared a
sexually violent predator and to have him involuntarily
committed to a secure mental health facility. Code § 37.2-
905(A). As required by Code § 37.2-906(A), concurrent with
the service of the petition, Hood was served with a formal
2
The designation NOS, which stands for “not otherwise
specified,” is used to classify a diagnosis when a mental
disorder appears to fall within a given category of disorders,
such as paraphilia, but does not meet the criteria of any
specific disorder within that category. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders - Text Revision § 302.9, at 576 (4th ed. 2000).
4
explanation of the SVPA’s civil commitment process and his
rights thereunder, including his right to be represented by
counsel and to “employ experts at [his] own expense to . . .
testify on [his] behalf.” The Code § 37.2-906(A) notice also
stated that upon a finding by the circuit court that the
commitment petition was supported by probable cause, the
“court may appoint experts . . . to perform examinations and
participate in the trial on [Hood’s] behalf,” further stating
that any such experts would be required to “prepare a written
report detailing his/her findings and conclusions and submit
the report and [its] supporting data to the [c]ourt, the
Attorney General and [Hood’s] counsel.”
The Code § 37.2-906(A) notice also included the following
explanation of the application of Code §§ 37.2-901 and -
907(A):
If a respondent refuses to cooperate with the mental
health examination to determine if he/she is a
sexually violent predator, the court may admit
evidence of the respondent’s refusal and may bar the
respondent from introducing his/her own expert
psychiatric or psychological evidence. Code of
Virginia § 37.2-901. Furthermore, if a respondent
refuses to cooperate, any expert appointed to assist
the respondent shall not be permitted to testify at
trial. Code of Virginia § 37.2-907(A).
On January 29, 2009, the circuit court entered an order
appointing counsel to represent Hood in the commitment
proceedings. On April 20, 2009, the court conducted a hearing
5
to determine whether there was probable cause to find that
Hood was a sexually violent predator. Code § 37.2-906(C).
After the court received testimony from Dr. Miller on behalf
of the Commonwealth, Hood testified on his own behalf. Hood
conceded that he had refused to cooperate with Dr. Miller
during the Code § 37.2-904 mental health examination. After
confirming that Hood did not have legal counsel at that time
and had not otherwise consulted with an attorney about his
decision not to cooperate with Dr. Miller, Hood’s counsel
asked whether, after having discussed the matter with him
following his appointment after the commitment petition had
been filed, Hood was now willing to cooperate and be examined
by Dr. Miller if it were determined that there was probable
cause to proceed to a trial. Hood responded, “Yeah, I will,
I’ll cooperate. I don’t have anything to hide.”
In a colloquy with the circuit court at the conclusion of
the probable cause hearing, Hood’s counsel contended that it
was “against [Hood’s] due process rights to be forced to make
the decision of whether to cooperate with a doctor months
before he has counsel.” Hood’s counsel noted that by refusing
to cooperate, Code §§ 37.2-901 and -907(A) limited Hood’s
right to present expert testimony in the commitment
proceedings, even though such evidence was “very dispositive
and very crucial” to his ability to put on a defense. The
6
Commonwealth responded that it had met its burden of showing
that there was probable cause to believe that Hood was a
sexually violent predator, and that the issues raised
concerning Hood’s right to present expert evidence, and
whether his due process rights had been violated “are for the
trial.”
The circuit court announced its ruling that there was
probable cause to find that Hood was a sexually violent
predator. The Commonwealth then indicated that although it
was prepared for trial, it would not oppose a continuance for
setting a trial date if Hood “want[ed] an expert to assist in
this matter.” The court queried whether a defense expert
would be allowed to testify at the trial, and the Commonwealth
responded that its position was that the expert would not be
allowed to testify, but “they are allowed to have one.” The
court ruled, based on its reading of Code § 37.2-907(A), that
it did not have any discretion to permit an appointed defense
expert to testify because Hood had refused to cooperate at the
time of the Code § 37.2-904 mental health examination, though
the expert “could certainly assist them . . . in ways at
trial.” After asking the court to clarify its ruling that
Hood “cannot have the expert testify,” the court confirmed
that it had so ruled. Hood’s counsel noted his objection to
that ruling.
7
On June 4, 2009, Hood filed an omnibus pre-trial motion
including a request for the appointment of Dr. Evan S. Nelson
as an expert to assist Hood. The motion further sought “a
clarification by the [circuit c]ourt . . . so that Dr. Nelson
will know what role he is to play, and whether he needs to
prepare and/or submit a report.” On June 10, 2009, the court
entered an order appointing Dr. Nelson “as an expert to
advise” Hood, noting that “[o]ver the objection of [Hood], Dr.
Nelson shall not be allowed to testify in this case.” 3
At a commitment trial held July 15, 2009, Hood renewed
his objection to his not being permitted to present expert
testimony or present a written report from Dr. Nelson. Hood
contended that general principles of procedural due process
required either that Hood should have been afforded the
opportunity to consult with an attorney before deciding
whether to cooperate with the Code § 37.2-904 mental health
examination or that he should have been allowed to rescind his
decision not to cooperate, as he had attempted to do, once he
had been appointed counsel and had consulted with him on the
3
Although the circuit court did not expressly address the
admissibility of a report from Dr. Nelson in this order as
Hood had requested in his motion, it is undisputed that Hood
was not permitted to introduce any expert evidence, by
testimony or exhibit, at his commitment trial and
dispositional hearing.
8
matter. Hood contended that because he had offered to rescind
his refusal to cooperate, the court could permit him to
present expert evidence. Indicating that it had “already
ruled on that,” the circuit court stated that the “motion to
preserve that [is] on the record.”
At the trial, the Commonwealth presented evidence from
Dr. Miller and from the sheriff’s deputy who investigated the
rape and abduction for which Hood had been convicted. Hood
was not permitted to put on any expert evidence, and did not
testify or call any lay witnesses. At the conclusion of the
trial, the court entered an order finding that Hood was a
sexually violent predator.
On September 1, 2009, the circuit court conducted a
dispositional hearing to determine whether there was any
suitable alternative treatment plan to having Hood committed
as an in-patient in a secure mental health facility. The
Commonwealth presented evidence from Dr. Miller and Carolyn
Harrington, a licensed clinical social worker employed by the
Commonwealth as a sexually violent predator program
specialist. Hood presented testimony from his sister, Debbie
Howard, concerning familial support available if Hood were to
be conditionally released under a proposed community-based
treatment plan. However, Hood was not permitted to present
any expert evidence concerning the suitability of that plan.
9
At the conclusion of the hearing, the court entered an order
finding that Hood’s proposed conditional release plan was
unsuitable and there was “no less restrictive alternative to
involuntary secure inpatient treatment and hospitalization.”
Accordingly, the court ordered Hood to be committed to the
custody of the Department of Behavioral Health and Development
Services to be confined in a secure facility.
DISCUSSION
As indicated at the outset, this appeal is limited to the
discrete issue of whether Hood was denied procedural due
process when the circuit court barred him from presenting
testimony or a report from his own expert during the
commitment proceedings. As framed by Hood, that issue does
not challenge the facial constitutionality of the relevant
provisions of the SVPA, nor does he challenge the statutory
framework of the SVPA that provides for the appointment of
counsel to represent a prisoner only after a petition seeking
his involuntary commitment has been filed. Rather, the issue
presented is limited to whether the restrictions imposed by
Code §§ 37.2-901 and –907(A) upon the prisoner’s right to
present expert evidence offend procedural due process as they
were applied to Hood in this case.
Specifically, this issue involves two separate inquiries.
First, we must decide whether due process requires that a
10
prisoner who, like Hood, did not have an opportunity to
consult with an attorney when he initially refused to
cooperate with the Code § 37.2-904 mental health examination,
should be permitted to revisit that determination once he has
been assigned counsel. Second, we must determine whether a
trial court may permit such a prisoner to present expert
evidence at his commitment trial and dispositional hearing if
he is subsequently willing to cooperate with the
Commonwealth’s expert.
Due process is the embodiment of the concept that the
government is required to do, or refrain from doing, certain
things if it is to exercise the authority that it derives from
the consent of the governed justly and without prejudice or
excess. See Carey v. Piphus, 435 U.S. 247, 259 (1978) (due
process is “meant to protect persons not from the deprivation,
but from the mistaken or unjustified deprivation of life,
liberty, or property”). Determining what is required of the
government to satisfy due process depends upon the particular
situation at issue and the interests involved. As the United
States Supreme Court has observed, due process “is not a
technical conception with a fixed content unrelated to time,
place and circumstances,” Cafeteria Workers v. McElroy, 367
U.S. 886, 895 (1961), but involves “intensely practical
matters.” Goss v. Lopez, 419 U.S. 565, 578 (1975).
11
As pertinent to the present case, the United States
Supreme Court has held that “for the ordinary citizen,
commitment to a mental hospital produces a massive curtailment
of liberty, and in consequence requires due process
protection.” Vitek v. Jones, 445 U.S. 480, 491-92 (1980)
(internal quotation marks and citations omitted). Similarly,
with specific application to the SVPA, we have held that
“involuntary civil commitment is a significant deprivation of
liberty to which federal and state procedural due process
protections apply.” Jenkins v. Director, Va. Ctr. for Behav.
Rehab., 271 Va. 4, 15, 624 S.E.2d 453, 460 (2006); accord
Townes v. Commonwealth, 269 Va. 234, 240, 609 S.E.2d 1, 4
(2005) (“Civil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection.”) (internal quotation marks omitted). However,
“[o]nce it is determined that due process applies, the
question remains what process is due.” Morrissey v. Brewer,
408 U.S. 471, 481 (1972).
In Jenkins, citing Vitek, we recognized that there were
“certain minimal standards” to which the Commonwealth was
required to adhere in order to satisfy the “due process
guarantee[d] to a respondent in an involuntary civil
commitment proceeding.” Jenkins, 271 Va. at 15, 624 S.E.2d at
460. Chief among these minimal standards is the right to a
12
“hearing at which evidence is presented and the respondent is
provided a chance to be heard and to present documentary
evidence as well as witnesses.” Id. (emphasis added). We
further held “the due process protections embodied in the
federal and Virginia Constitutions mandate that the subject of
the involuntary civil commitment process has the right to
counsel at all significant stages of the judicial
proceedings.” Id. at 16, 624 S.E.2d at 460.
Hood contends that he was deprived of his due process
rights when he was required to make the decision whether to
cooperate with Dr. Miller in the Code § 37.2-904 mental health
examination without first being afforded the opportunity to
consult with an attorney. This is so, Hood maintains, because
“[t]he significance of the decision . . . whether to cooperate
with the government psychiatrist or psychologist is crucial
under Virginia’s SVP Act, since it affects the entire trial as
well as the dispositional proceeding on whether outpatient
treatment is feasible.” Hood notes that the SVPA does not
require that the prisoner be advised of its provisions,
including the consequences of his failure to cooperate with
the Commonwealth’s expert, until the petition to seek the
prisoner’s commitment is filed, which necessarily cannot occur
until after the Code § 37.2-904 mental health examination. He
likewise notes that it is only at this point that the
13
statutory right to appointment of counsel under the SVPA
accrues. Hood thus contends that “an extremely important
right – the right to present testimony favorable to one’s side
of the case – is being made dependent upon whether the
[prisoner] cooperates with the government psychiatrist or
psychologist, and . . . he must make the decision to cooperate
or not before having counsel appointed.” 4
The Commonwealth responds that Hood did not have a right
to the assistance of counsel at the time of the Code § 37.2-
904 mental health examination. The Commonwealth maintains
this is so because the SVPA provides that the prisoner has a
right “[t]o be represented by counsel” only “[i]n hearings and
trials held pursuant to this chapter.” Code § 37.2-901.
Likewise, the SVPA provides for the appointment of counsel to
an unrepresented prisoner only after a petition seeking
commitment of the prisoner has been filed, Code § 37.2-906(B),
4
Hood contends that Virginia is the only jurisdiction in
the United States that has a statutory process for civilly
committing sexual predators which pre-conditions the right of
a person subject to that process to present evidence in the
commitment proceeding on a requirement that the person assist
the government in that process before being afforded the
assistance of counsel. In a footnote within his brief, Hood
provided an exhaustive summary of the federal and state
statutory processes equivalent to the SVPA in support of this
proposition. The Commonwealth does not dispute that this
aspect of Virginia’s SVPA is unique within this area of the
law.
14
and the first “hearing” at which the prisoner is required to
have counsel is the probable cause hearing required by Code
§ 37.2-906(C).
Hood recognizes the SVPA does not provide for the
appointment of counsel prior to the filing of a petition
seeking commitment. Indeed, Hood concedes on brief that until
the petition is filed, there is no court that would have
jurisdiction to make such appointment, and no practical
mechanism for having a court do so. Hood nonetheless contends
that because a prisoner is required to make a decision that
will affect his right to present expert evidence at his
commitment trial and dispositional hearing at a point in time
before the prisoner is afforded the opportunity to consult
with an attorney, procedural due process requires that the
prisoner should be permitted to revisit that decision once he
has counsel, and if he is then willing to cooperate with the
Commonwealth’s expert, he should then be permitted to present
expert evidence on his own behalf.
Responding to Hood’s due process arguments, the
Commonwealth asserts that the procedural due process
protections of the United States and Virginia Constitutions
that afford a criminal defendant the right to assistance of
counsel before a formal prosecution has commenced do not apply
to a prisoner during a pre-petition investigation under the
15
SVPA, since a commitment under the SVPA is a civil proceeding.
Noting that in his assignment of error Hood specifically
asserts that requiring him to choose whether to cooperate with
the Code § 37.2-904 mental health examination without the
benefit of counsel was “in violation of the Due Process Clause
of the Fifth Amendment to the Constitution of the United
States, the Right to Counsel provision of the Sixth Amendment
of the Constitution of the United States, and the Law of the
Land provision in Article I § 8 of the Constitution of
Virginia,” the Commonwealth contends that the due process
guarantees of these constitutional provisions are inapplicable
to Hood because they are limited in their application to
criminal prosecutions. See Jenkins, 271 Va. at 15, 624 S.E.2d
at 460 (“Even though involuntary civil commitment is a
significant deprivation of liberty to which federal and state
procedural due process protections apply, persons subject to
these commitment proceedings do not enjoy the same rights
attendant to a criminal proceeding.”)
While we agree with the Commonwealth that there is no
statutory or due process requirement for a prisoner to be
provided with the assistance of counsel at the time of the
Code § 37.2-904 mental health examination, we conclude that
the Commonwealth’s response on this point fails to address the
question whether the statutory provisions that bar a prisoner
16
from presenting expert evidence if he chooses not to cooperate
with that examination violate procedural due process where,
having subsequently consulted with counsel, the prisoner
demonstrates a willingness to rescind that decision prior to
the trial on a commitment petition. Thus, while we agree with
the Commonwealth that Hood’s claim cannot fall within the due
process protections of the Sixth Amendment and Article I,
Section 8 of the Virginia Constitution, which are specific to
criminal prosecutions, we conclude that Hood’s argument does
fall within the procedural due process guarantee of the Fifth
Amendment that no person “be deprived of life, liberty, or
property, without due process of law,” which unquestionably
applies in civil proceedings under the SVPA. Warrington v.
Commonwealth, 280 Va. 365,370, 699 S.E.2d 233, 235 (2010);
Jenkins, 271 Va. at 15, 624 S.E.2d at 460; Townes, 269 Va. at
240, 609 S.E.2d at 4.
In short, the issue raised by Hood at trial and in this
appeal is not whether he could or should have been afforded
the assistance of counsel at the time of the Code § 37.2-904
mental health examination. Rather, the issue is whether the
penalty imposed for his failure to cooperate in that
examination violates procedural due process because he was not
afforded the opportunity to revisit that decision once counsel
had been appointed. Stated another way, the issue is whether
17
the statutory provisions that permit the Commonwealth to limit
the right of a prisoner subject to the SVPA to present
evidence in his defense offend procedural due process because
they are based upon conduct of the prisoner that occurred
prior to the initiation of formal commitment proceedings under
Code § 37.2-905 at a time when he did not have, and was not
entitled to, the assistance of counsel. For the reasons that
follow, we conclude that Code §§ 37.2-901 and –907(A) must be
construed in a manner consistent with due process. In
applying that construction to the facts of this case, we
further conclude that the circuit court erred in ruling that
Hood could not rescind his decision not to cooperate and,
thus, that the court was without discretion to permit him to
present expert evidence in the commitment trial and
dispositional hearing.
The circuit court’s ruling that Hood would not be
permitted to present expert testimony or a report from Dr.
Nelson was based upon its construction of Code § 37.2-907(A).
However, as indicated above, Code § 37.2-901 also addresses
the Commonwealth’s ability to limit a prisoner’s right to
present expert evidence in SVPA proceedings. This Court
reviews issues of statutory construction de novo. Farrakhan
v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 227, 229 (2007).
Moreover, “although civil in nature, a statutory scheme such
18
as the SVPA that permits an involuntary commitment process to
be initiated by the Commonwealth is subject to the rule of
lenity normally applicable to criminal statutes and must
therefore be strictly construed.” Townes, 269 Va. at 240, 609
S.E.2d at 4.
In relevant part, Code § 37.2-901 provides:
In hearings and trials held pursuant to this
chapter, respondents shall have the . . . . right[]
. . . . [t]o be represented by counsel . . . .
[and t]o present evidence and to cross-examine
witnesses . . . . In the event the respondent
refuses to cooperate with the mental health
examination required under § 37.2-904, the court may
admit evidence of such refusal and may bar the
respondent from introducing his own expert
psychiatric or psychological evidence.
(Emphasis added.)
This statute comports with the minimal standards of due
process the Commonwealth is required to follow in SVPA
proceedings as set forth in Jenkins. Moreover, we find that
the discretionary power given to the court to limit the
prisoner’s right to present expert evidence if he “refuses” to
cooperate with the Code § 37.2-904 mental health examination
is a reasonable limitation on the prisoner’s right to present
evidence in such proceedings. This discretionary power
permits the court to weigh the particular circumstances of the
specific case, such as whether the decision not to cooperate
was made with the assistance of counsel, before determining
19
whether to limit the prisoner’s right to introduce expert
evidence at trial. Moreover, the use of the term “refuses,”
in the present tense, implies that the court will be able to
take into consideration the position of the prisoner at the
time of the proceeding. That is, the court can inquire
whether the prisoner still “refuses” to cooperate even once
the possible consequence of that action has been made clear.
In such circumstances, if the prisoner remains adamant in his
refusal to cooperate with the Commonwealth’s expert, due
process certainly would not require the court to afford the
prisoner an undue advantage by permitting him to present
evidence based upon a personal interview and examination by
his expert, while he is simultaneously denying the
Commonwealth’s expert the ability to form his diagnosis in the
same way. Cf. Code § 19.2-168.1(B) (permitting a court to bar
defendant from presenting expert testimony in support of an
insanity defense for failing to cooperate with the
Commonwealth’s expert); Grattan v. Commonwealth, 278 Va. 602,
620-21, 685 S.E.2d 634, 644-45 (2009) (finding no abuse of
discretion in trial court’s application of Code § 19.2-
168.1(B)).
In contrast, Code § 37.2-907(A), the statute relied upon
by the circuit court to find that Hood’s initial refusal to
cooperate with the Code § 37.2-904 mental health examination
20
created an absolute bar to his being able to present expert
evidence in the commitment trial and dispositional hearing,
appears to place greater restrictions on the court’s authority
in such situations. After directing the court to appoint
necessary experts to assist a prisoner if he “requests expert
assistance and has not employed an expert at his own expense,”
in relevant part the statute provides that “if the respondent
refused to cooperate pursuant to § 37.2-901 any expert
appointed to assist the respondent shall not be permitted to
testify at trial nor shall any report of any such expert be
admissible.” 5 (Emphasis added.)
While the use of the term “shall” in a statute is
generally construed as directory rather than mandatory, we may
not construe it as such if “the statute manifests a contrary
intent.” Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d
636, 638 (1994). On its face, the clause “shall not be
permitted to testify at trial nor shall any report of any such
expert be admissible” appears to manifest a mandatory intent
that evidence from the prisoner’s appointed experts must be
5
By its express terms, this statute is limited in its
application to denying the prisoner the right to present
evidence from “appointed” experts. Hood has not asserted an
equal protection argument in challenging the application of
the statute to him. Accordingly, we express no opinion on
this issue.
21
excluded if he “refused to cooperate pursuant to § 37.2-901.”
(Emphasis added.) This construction, however, would appear to
create a conflict between Code § 37.2-907(A) and Code § 37.2-
901, which we have found gives the court discretion in such
matters, rather than mandating exclusion of the prisoner’s
expert evidence.
“It is a well-settled principle of law that where two
statutes are in apparent conflict they should be so construed,
if reasonably possible, so as to allow both to stand and to
give force and effect to each. It is the object of the courts
to construe all statutes in pari materia in such manner as to
reconcile, if possible, any discordant feature which may
exist, and make the body of the laws harmonious and just in
their operation.” Waller v. Commonwealth, 278 Va. 731, 737,
685 S.E.2d 48, 51 (2009) (internal quotation marks and
citations omitted). This principle is particularly applicable
under the circumstances of the present case, since two
statutes within the same legislative act are involved and both
statutes address the same subject matter, namely a prisoner’s
right to present expert evidence. Evans v. Evans, 280 Va. 76,
83 n.2, 84-85, 695 S.E.2d 173, 176 n.2, 177 (2010). Moreover,
because Code § 37.2-907(A) does not reference Code § 37.2-904
directly, but instead defines the determination of whether the
prisoner “refused to cooperate” with the Commonwealth’s expert
22
“pursuant to § 37.2-901,” we cannot definitively construe the
relevant language of the latter statute without reference to
the former.
Given our holding that Code § 37.2-901 comports with the
due process requirements for an involuntary commitment
proceeding under the SVPA because the limitation on a
prisoner’s right to present expert evidence is discretionary,
it follows that the similar limitation of Code § 37.2-907(A)
must likewise have a discretionary, rather than mandatory,
application. If this were not the case, a mandatory
prohibition of Code § 37.2-907(A) would render the
discretionary authority granted to the court by Code § 37.2-
901 ineffective in those cases where the defendant has not
privately retained his own expert.
When Code §§ 37.2-901 and -907(A) are harmoniously
construed in this manner, it becomes plain that the SVPA does
not offend those minimal standards of due process required by
Jenkins because an uncounseled decision by a prisoner to
refuse to cooperate with the Commonwealth’s expert during the
Code § 37.2-904 mental health examination will not serve as an
absolute bar to his right to present expert evidence during
his commitment trial and dispositional hearing. Rather, in
cases where the Commonwealth seeks to prohibit a prisoner from
presenting such evidence, the court will have the discretion
23
to allow or bar such evidence based upon its inquiry into the
circumstances under which the prisoner made his decision at
the time of the examination and whether the prisoner remains
steadfast in his refusal to cooperate.
The record in this case adequately demonstrates that at
the time of the Code § 37.2-904 mental health examination Hood
wished to be better informed of the requirements and
consequences of his decision whether to cooperate with the
Commonwealth’s expert. It is equally clear that after he was
afforded the assistance of counsel, Hood offered to rescind
his refusal to cooperate at the first hearing in which he
appeared before the circuit court after the commitment
petition had been filed. There is no indication in the record
that this offer was not genuine or that it was made for any
strategic purpose of delay or to gain some advantage over the
Commonwealth. Moreover, given the Commonwealth’s willingness
to allow for a continuance following that hearing to permit
Hood to be examined by his own expert, there would have been
no undue delay in the proceedings if the Commonwealth had also
desired to have Dr. Miller examine Hood and amend his report
and diagnosis if necessary.
Accordingly, we hold that the circuit court erred in
ruling that Code § 37.2-907(A) mandated that Hood was
prohibited from presenting any expert evidence at his
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commitment trial and dispositional hearing because of his
refusal to cooperate with Dr. Miller during the prior Code
§ 37.2-904 mental health examination. We further hold that
the court erred in not permitting Hood to rescind his refusal
to cooperate and not permitting him to present testimony and a
report from Dr. Nelson at the commitment trial and
dispositional hearing.
CONCLUSION
Because Hood was improperly denied the right to call Dr.
Nelson and present other expert evidence at his commitment
trial, a right afforded both by the SVPA and by the minimal
standards of procedural due process that we have held must be
applied in such cases, the determination that he is a sexually
violent predator is necessarily called into question.
Likewise, this error deprived the circuit court of important
evidence during the dispositional hearing that might have
permitted it to determine that Hood’s conditional release plan
was a viable, less restrictive alternative to full commitment.
Accordingly, the judgment of the circuit court will be
reversed, and the case remanded for a new trial to determine
whether Hood is a sexually violent predator, and if so, the
court shall also conduct a new dispositional hearing to
determine whether there is any less-restrictive alternative to
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involuntary inpatient treatment and hospitalization if the
Commonwealth be so advised. 6
Reversed and remanded.
6
In briefing this appeal, Hood stated in his prayer for
relief that in any retrial he should be allowed to present
expert evidence “if [he] chooses to cooperate with the state’s
expert.” (Emphasis added.) Of course, with the passage of
time, Hood may have reconsidered his offer to cooperate with
the Commonwealth’s expert made at the probable cause hearing.
If, however, in any new trial it is established that Hood has
declined to cooperate with the Commonwealth’s expert, then the
Commonwealth may seek to have the circuit court rule that Hood
will be prohibited from presenting expert evidence and, in
such circumstance, the court would be justified in entering
summary judgment based upon the prior record.
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