PRESENT: All the Justices
STEVEN LAWRENCE
OPINION BY
v. Record No. 091119 JUSTICE S. BERNARD GOODWYN
February 25, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
In this appeal we consider whether the circuit court erred
in admitting expert testimony regarding the details of
unadjudicated allegations of sexual misconduct the expert
learned from police reports and whether expert opinion
testimony dependent upon the truth of those unadjudicated
allegations is admissible into evidence.
In 1990, Steven L. Lawrence (Lawrence) was convicted of,
among other things, rape and sodomy and sentenced to a total of
forty-five years imprisonment, with five years suspended.
Prior to his scheduled release from incarceration, the
Commonwealth filed a petition pursuant to the Sexually Violent
Predator Act (SVPA), Code §§ 37.2-900 et seq., requesting
Lawrence’s civil commitment as a sexually violent predator.
After a jury trial in the Circuit Court of Fairfax County,
Lawrence was found to be a sexually violent predator and
committed to the Department of Mental Health, Mental
Retardation and Substance Abuse Services for involuntary secure
inpatient treatment. Lawrence appeals, arguing that the
circuit court erred in allowing certain evidence to be
presented to the jury.
Facts
At the outset of Lawrence’s civil commitment trial, the
Commonwealth sought to introduce into evidence a sexually
violent predator forensic psychological evaluation prepared by
Dr. Ilona Gravers, a licensed clinical psychologist. Lawrence
objected to the introduction of the document, arguing that the
evaluation report was hearsay because it included information
from police reports concerning various unadjudicated
allegations of sexual misconduct and references to a previous
polygraph test. After argument, the circuit court sustained
the objection and the evaluation report was not admitted into
evidence.
During its direct examination of Dr. Gravers, the
Commonwealth sought to elicit testimony from her concerning the
details of the allegations of unadjudicated sexual misconduct
contained in the police reports. Lawrence objected, arguing
that such testimony would be hearsay and that any probative
value was outweighed by undue prejudice. The Commonwealth
argued that Code § 8.01-401.1 authorized an expert witness to
rely upon hearsay and to give her reasons for her opinions.
The Commonwealth also argued that Dr. Gravers’ testimony
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regarding the content of the police reports was not hearsay
because it was not offered for the truth of the allegations but
to show the basis for Dr. Gravers’ opinion.
Agreeing with the Commonwealth’s position, the circuit
court overruled Lawrence’s objections. The circuit court did,
however, read an instruction to the jury, which stated,
“Testimony regarding allegations of behavior contained in
police reports for which the Respondent has not been convicted
was not offered or is not offered to prove that the behavior
actually occurred, but only as the basis for the expert’s
opinion.”
Dr. Gravers testified regarding the details of a police
report in which it was claimed that Lawrence was acting as a
“pimp” for a female prostitute and would cut and burn her when
she did not make enough money for him. Dr. Gravers also
discussed the allegations detailed in a police report that
described an incident where Lawrence allegedly threatened a
woman with a shotgun when she refused to perform sexual acts
with him and his girlfriend. Neither of these recounted
incidents resulted in formal charges. Dr. Gravers also
testified concerning a police report that resulted in a charge
for rape in 1975, but no conviction. In that incident, while
18 years old, Lawrence allegedly forcefully disrobed a 15 year-
old girl and attempted to rape or raped her. Dr. Gravers did
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not talk to any of the participants in the alleged incidents
reported to the police. Also, the alleged victims and
witnesses were in some cases not identified and none were
available to testify or to be cross-examined.
Dr. Gravers diagnosed Lawrence with a paraphilia, a mental
abnormality and a “personality disorder not otherwise specified
with antisocial traits,” based partially on the unadjudicated
allegations of sexual misconduct. Dr. Gravers stated that the
reported incidents led her to conclude that Lawrence had
“intimacy deficits,” which are considered “a dynamic or a
changeable risk factor for future sexual offending.” On cross-
examination, Dr. Gravers stated that she relied on the
information from the police reports in reaching the conclusion
that there was a pattern of sexual aggression and intimacy
deficits. Furthermore, Dr. Gravers stated that she viewed
Lawrence’s denials of the unadjudicated allegations as an
indication of his “minimizing” and part of his pattern of
“distorted thinking.”
In addition to objecting to Dr. Gravers being allowed to
testify concerning the details of the incidents reported to the
police, Lawrence also objected to Dr. Gravers’ opinion
testimony. Lawrence objected to its admissibility claiming
that Dr. Gravers’ opinions were based upon unreliable facts
gleaned from the police reports concerning unadjudicated
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allegations of sexual misconduct by Lawrence. The circuit
court overruled Lawrence’s objection.
The Commonwealth also called Dr. Ronald M. Boggio to
testify. Dr. Boggio concluded that Lawrence had a history of
sexual offending based on the various charges, police reports
and convictions and opined that Lawrence had a high risk of
committing sexual offenses in the future. Dr. Boggio did not
discuss the unadjudicated allegations in detail. Dr. Boggio
diagnosed Lawrence with paraphilia not otherwise specified and
antisocial traits, but did not find that Lawrence had an
antisocial personality disorder.
Analysis
Lawrence claims that the circuit court erred in admitting
Dr. Gravers’ testimony regarding the details of unadjudicated
allegations of sexual misconduct by Lawrence, because the
testimony was hearsay and unduly prejudicial. Lawrence argues
that this Court’s decision in Commonwealth v. Wynn, 277 Va. 92,
671 S.E.2d 137 (2009), should inform, if not control, the
resolution of the issue.
The Commonwealth argues that this case is distinguishable
from Wynn because, in this case, the circuit court decided that
the information concerning the details in the police reports
was not hearsay, and the circuit court issued a cautionary
instruction to the jury. Further, the Commonwealth argues that
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even if the challenged testimony was hearsay, the admission of
the evidence was harmless error “considering the mountain of
information that was admitted from other sources and was
unchallenged.”
This Court reviews evidentiary rulings under an abuse of
discretion standard. Coe v. Commonwealth, 231 Va. 83, 87, 340
S.E.2d 820, 823 (1986). “However, ‘[a] trial court has no
discretion to admit clearly inadmissible evidence because
admissibility of evidence depends not upon the discretion of
the court but upon sound legal principles.’ " Wynn, 277 Va. at
97, 671 S.E.2d at 139 (quoting Norfolk & Western Ry. Co. v.
Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995))
(internal quotation marks omitted).
This Court defines hearsay as an out of court statement
offered to prove the truth of the matter asserted. Robinson v.
Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476 (1999). It
includes testimony given by a witness who relates what others
have told him or what he has read. Id. Hearsay evidence is
inadmissible unless it falls within one of the recognized
exceptions to the hearsay rule. Id. The party attempting to
introduce a hearsay statement has the burden of proving that
the statement falls within one or more of the exceptions. Id.
at 6, 516 S.E.2d at 476-77.
This Court, in Wynn, stated:
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Code § 37.2-908(C) provides that an expert witness
testifying at an SVPA trial may state the “basis for
his opinions.” Similarly, pursuant to Code § 8.01-
401.1, an expert witness may rely upon “facts,
circumstances or data made known to . . . such
witness” in formulating an opinion; those “facts,
circumstances or data . . . , if of a type normally
relied upon by others in the particular field of
expertise in forming opinions and drawing inferences,
need not be admissible in evidence.” Neither of these
statutes, however, allows for the introduction of
otherwise inadmissible hearsay evidence during the
direct examination of an expert witness merely because
the expert relied on the hearsay information in
formulating an opinion.
277 Va. at 100, 671 S.E.2d at 141.
In Wynn, this Court specifically rejected the argument
that the details of unadjudicated allegations of sexual
misconduct offered by an expert on direct examination,
supposedly to show the factual basis of an expert’s opinion,
are not hearsay. Id. at 99, 671 S.E.2d at 140. Even though
Code § 37.2-908(C) provides that an expert witness may state
the “basis for his opinions,” that does not extend to testimony
about the details of hearsay allegations of sexual misconduct.
Wynn, 277 Va. at 100-02, 671 S.E.2d at 141-42. We reasoned
that even though an expert may rely upon hearsay allegations of
sexual misconduct (if the information is of the type routinely
used by experts in the given field of expertise) in formulating
an opinion, “a litigant, nevertheless, should not be required
to contend with [the truth of details of] such hearsay
information because the trier of fact cannot observe the
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demeanor of the speaker and the statements cannot be tested by
cross-examination.” Id. at 100, 671 S.E.2d at 141.
The Commonwealth asserts that this case is distinguishable
from Wynn because the circuit court read a limiting instruction
to the jury. We disagree. Dr. Gravers’ testimony on direct
examination improperly included numerous details about unproven
past allegations of sexual misconduct against Lawrence. The
alleged victims and witnesses were in some cases not identified
and none were available for cross-examination. Lawrence,
similar to the petitioner in Wynn, was faced with hearsay
evidence about allegations of sexual misconduct. In this
context, the improper admission of such evidence — which cannot
effectively be restricted to proper use or purposes in the
minds of the jury — cannot be remedied by the giving of a
limiting instruction. See Coffey v. Commonwealth, 188 Va. 629,
636, 51 S.E.2d 215, 218 (1949). We hold that the circuit court
erred in allowing Dr. Gravers to testify on direct examination
about the details of unadjudicated allegations of sexual
misconduct she learned about from reading police reports.
The Commonwealth argues that the admission of the
evidence, even if erroneous, was harmless error. Harmless
error requires a showing that the parties “had a fair trial on
the merits and substantial justice has been reached.” Code
§ 8.01-678. This Court has held that nonconstitutional error
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is harmless if the reviewing court can be sure that the error
did not influence the jury and only had a slight effect. Clay
v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32
(2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-
65 (1946)).
Although Dr. Boggio testified for the Commonwealth and
opined that Lawrence had a high risk of future sexual offenses,
it is worth noting that, by statute, expert testimony is not
dispositive in an SVPA determination proceeding. Code § 37.2-
906(C). The jury had to decide, after hearing all the expert
and lay testimony, whether the Commonwealth had proven by clear
and convincing evidence that Lawrence was a sexually violent
predator. Code § 37.2-908(C). The details about the alleged
sexual misconduct, which were no doubt prejudicial to Lawrence,
would not have been introduced to the jury but for Dr. Gravers’
impermissible testimony. Given the nature and extent of that
detailed, improper testimony concerning alleged sexual
misconduct, and the fact that, in rendering her opinion, Dr.
Gravers indicated to the jury that she assumed those
allegations to be true, it cannot be found with assurance that
the evidence concerning the details of unadjudicated
allegations of sexual misconduct did not influence the jury or
that it had only slight effect. See Code § 8.01-678; Clay, 262
Va. at 260, 546 S.E.2d at 731-32. Therefore, we hold that the
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error in this case regarding the admission into evidence of
hearsay evidence concerning allegations of sexual misconduct by
Lawrence was not harmless.
Lawrence also contends that Dr. Gravers’ opinion testimony
had an inadequate factual foundation because it was based upon
the truth of hearsay allegations in police reports concerning
unadjudicated conduct. Thus, Lawrence argues that the circuit
court should have stricken Dr. Gravers’ expert opinion
testimony because it was speculative and unreliable as a matter
of law. See Commonwealth v. Garrett, 276 Va. 590, 606, 667
S.E.2d 739, 748 (2008).
The Commonwealth argues that Dr. Gravers’ opinion
testimony was admissible because Dr. Gravers did not speculate
beyond the information she had or make any factual errors in
terms of using the information. Further, the Commonwealth
contends that because experts may rely on such underlying
information, Dr. Gravers’ expert opinion had an adequate
factual foundation. The Commonwealth also asserts that the
circuit court did not err in failing to strike Dr. Gravers’
expert opinion testimony because although Dr. Gravers relied
upon the allegations in the police reports, the information in
the police reports was not the sole basis for her opinions and
she had other additional information she relied on in reaching
her conclusions.
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In Garrett, this Court stated that an expert opinion in a
sexually violent predator trial must have an adequate factual
foundation. 276 Va. at 606, 667 S.E.2d at 748. An expert may
not “express an opinion that is speculative and unreliable as a
matter of law.” Id. “Expert testimony founded upon
assumptions that have no basis in fact is not merely subject to
refutation by cross-examination or by counter-experts; it is
inadmissible.” Vasquez v. Mabini, 269 Va. 155, 160, 606 S.E.2d
809, 811 (2005).
Here, the evidence indicates that Dr. Gravers, in forming
her expert opinions, considered as true unsubstantiated
allegations contained in police reports she read. Dr. Gravers
stated that the unadjudicated allegations of sexual misconduct
contained in the police reports led her to the conclusion that
Lawrence had a pattern of sexual aggression and intimacy
deficits. Dr. Gravers also stated that while her diagnosis of
paraphilia, not otherwise specified, was primarily based on
Lawrence’s two convictions, her conclusion that Lawrence had an
antisocial personality disorder, not otherwise specified,
depended on the allegations in the police reports and
Lawrence’s pattern of antisocial behavior, as shown through
those allegations.
Based on this Court’s holding in Garrett, we hold that Dr.
Gravers’ expert testimony did not have an adequate factual
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foundation to the extent it was dependent upon assuming the
truth of the hearsay allegations concerning Lawrence’s past
sexual misconduct. Dr. Gravers’ opinions, which were dependent
upon the truth of hearsay allegations unsupported by evidence
properly presented at trial, were speculative and unreliable as
a matter of law and should not have been admitted into
evidence.
Conclusion
For these reasons, we will reverse the judgment of the
circuit court and remand the case for further proceedings
consistent with the views expressed in this opinion if the
Commonwealth be so advised. To the extent that Dr. Gravers is
able to render opinions without assuming the truth of hearsay
allegations that are unsupported by evidence presented at
trial, the views expressed here will not serve to bar that
expert testimony. See Garrett, 276 Va. at 608, 667 S.E.2d at
749.
Reversed and remanded.
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