Com. v. Wynn

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA

v. Record No. 072412 OPINION BY JUSTICE CYNTHIA D. KINSER
January 16, 2009
FREDDIE LEE WYNN

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge

In this appeal, the Commonwealth challenges two evidentiary

rulings by the circuit court during a trial under the Civil

Commitment of Sexually Violent Predators Act (the SVPA), Code

§§ 37.2-900 through -920. Because the circuit court did not err

by refusing to admit hearsay testimony concerning unadjudicated

allegations of sexual misconduct and by admitting only a few

pages of a mental health expert witness’ written report, we will

affirm the circuit court’s judgment.

I. MATERIAL FACTS AND PROCEEDINGS

The Commonwealth filed a petition in the circuit court for

the civil commitment of Freddie Lee Wynn as a sexually violent

predator under the SVPA. 1 At the time the Commonwealth filed its

petition, Wynn was incarcerated on two convictions for

aggravated sexual battery of a child under age thirteen in

violation of Code § 18.2-67.3. Those convictions qualified as

1
The SVPA defines a sexually violent predator as “any
person who (i) has been convicted of a sexually violent offense
. . . and (ii) because of a mental abnormality or personality
disorder, finds it difficult to control his predatory behavior,
sexually violent offenses under Code § 37.2-900. After the

circuit court determined that probable cause existed to believe

Wynn is a sexually violent predator pursuant to Code § 37.2-906,

Wynn elected to have a trial by jury. See Code § 37.2-908(B).

At the conclusion of the evidence, the jury returned a verdict

finding that Wynn is not a sexually violent predator.

Subsequently, the circuit court entered an order in accordance

with the jury verdict.

Two evidentiary rulings by the circuit court during the

jury trial are at issue in this appeal. Those rulings concerned

the testimony and written report of Glenn Rex Miller, Jr.,

Ph.D., who performed a mental health examination of Wynn

pursuant to Code § 37.2-904(B). Dr. Miller was the only mental

health expert who testified at the trial. In both his written

report and trial testimony, Dr. Miller stated that Wynn suffers

from pedophilia, paraphilia, and antisocial personality

disorder. Because of Wynn’s mental abnormalities and

personality disorder, Dr. Miller concluded that Wynn finds it

difficult to control his predatory behavior, which makes him

likely to commit sexually violent acts. In sum, Dr. Miller

opined that Wynn meets the criteria as a sexually violent

predator pursuant to Code § 37.2-900.

which makes him likely to engage in sexually violent acts.”
Code § 37.2-900.

2
 The first evidentiary ruling occurred during the

Commonwealth’s direct examination of Dr. Miller. The

Commonwealth attempted to elicit testimony about allegations of

sexual misconduct by Wynn made by children other than the victim

involved in Wynn’s two aggravated sexual battery convictions.

Dr. Miller had learned about those allegations, which concerned

sexual abuse that supposedly occurred during the same time frame

as the sexual batteries for which Wynn was convicted, by

reviewing documents in a file maintained by the Assistant

Commonwealth’s Attorney who had prosecuted Wynn. When the

Commonwealth asked Dr. Miller to relate specific information

about those other allegations, Wynn objected, stating that the

allegations were “hearsay upon hearsay” and he could not cross-

examine either the accuser, the person who prepared the

documents detailing the allegations, or the individual who

created the file. In response, the Commonwealth asserted the

allegations constituted information Dr. Miller relied upon in

arriving at his conclusions and the jury could decide what

weight to give his opinions based on those allegations.

The circuit court decided Dr. Miller could testify that

there were allegations from other children, but had to omit the

specific details of those allegations. The court stated, “I

think you are going to have to limit it to that there were other

accusations from other children in this and leave it at that.”

3
When the Commonwealth resumed its direct examination of Dr.

Miller, it asked two questions about the other allegations:

“Doctor, did you review records regarding additional allegations

made against Mr. Wynn?” and “Did you consider those in reaching

your conclusions about his risk assessment and diagnosis?” Dr.

Miller responded affirmatively to both questions. Notably, the

Commonwealth limited its question to whether there were other

allegations against Wynn and did not ask if those accusations

came from children, even though the circuit court ruled that the

Commonwealth could do so. Despite the circuit court’s ruling,

the jury did hear some details regarding the accusations by

other children.

The second evidentiary ruling occurred at the end of Dr.

Miller’s direct examination. At that point, the Commonwealth

sought to admit into evidence Dr. Miller’s written report

concerning his examination of Wynn. Wynn objected on the basis

that Dr. Miller’s report contained a significant amount of

hearsay and his testimony was “the best evidence.” Wynn

specifically pointed to the portions of the report in which Dr.

Miller discussed in detail the sexual abuse allegations from

other children, Wynn’s threats of suicide, and the conclusions

of a psychologist who had evaluated Wynn when he was

incarcerated in Montana.

4
 The circuit court admitted into evidence page one and pages

twelve through fifteen of Dr. Miller’s fifteen-page report.

Page one discussed, among other things, the purpose of the

evaluation and the sources of information he had utilized. The

other admitted pages included Dr. Miller’s assessments of Wynn’s

personality and risk for re-offending, Dr. Miller’s diagnoses of

Wynn’s mental abnormalities and personality disorder, and Dr.

Miller’s conclusions that Wynn satisfied the criteria to be

classified a sexually violent predator.

II. ANALYSIS

On appeal, the Commonwealth claims the circuit court erred

“in prohibiting the expert from testifying to the additional

allegations of sexual misconduct” and “in prohibiting the

Commonwealth from introducing the expert’s entire report.”

Generally, we review a circuit court’s evidentiary rulings under

an abuse of discretion standard. See, e.g., John v. Im, 263 Va.

315, 320, 559 S.E.2d 694, 696 (2002). 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.”’”

Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463

S.E.2d 442, 444 (1995) (quoting Coe v. Commonwealth, 231 Va. 83,

87, 340 S.E.2d 820, 823 (1986) (quoting Crowson v. Swan, 164 Va.

82, 92, 178 S.E. 898, 903 (1935))). Evidence that is hearsay

5
and does not fall under an exception is clearly inadmissible.

See, e.g., Teleguz v. Commonwealth, 273 Va. 458, 481, 643 S.E.2d

708, 723 (2007) (“In the absence of any applicable exception to

the hearsay rule which would have rendered the testimony

admissible, we hold that the trial court erred in admitting the

testimony.”) (citation omitted); Setliff v. Commonwealth, 162

Va. 805, 814, 173 S.E. 517, 520 (1934) (holding evidence is

“clearly hearsay and for that reason inadmissible in any form

before the jury”).

The SVPA requires a prisoner to undergo a mental health

evaluation “by a licensed psychiatrist or a licensed clinical

psychologist who is . . . skilled in the diagnosis, treatment,

and risk assessment of sex offenders,” Code § 37.2-904(B), when

the prisoner’s name is forwarded to the Commitment Review

Committee pursuant to Code § 37.2-903. Under the SVPA, a

psychiatrist or clinical psychologist who satisfies the

qualifications set forth in Code §§ 37.2-904(B) or -907 may

testify at trial “as to his diagnosis, his opinion as to whether

the respondent meets the definition of a sexually violent

predator, his recommendation as to treatment, and the basis for

his opinions.” Code § 37.2-908(C). The SVPA, however, contains

no express provisions allowing the admission of hearsay evidence

during an expert witness’ testimony at a SVPA trial. Thus, “we

will apply the general rules applicable to expert testimony in

6
other civil cases” to address the issue before us. Commonwealth

v. Allen, 269 Va. 262, 274, 609 S.E.2d 4, 11–12 (2005).

In McMunn v. Tatum, 237 Va. 558, 560, 379 S.E.2d 908, 909

(1989), the Court decided whether an expert witness, in relating

the basis for the expert opinion, could testify about the

hearsay opinions of other persons. We concluded that Code

§ 8.01-401.1, which governs the admissibility of expert witness

testimony in a civil action, “does not authorize the admission

in evidence, upon the direct examination of an expert witness,

of hearsay matters of opinion upon which the expert relied in

reaching his own opinion.” Id. at 566, 379 S.E.2d at 912;

accord May v. Caruso, 264 Va. 358, 361, 568 S.E.2d 690, 691–92

(2002); Weinberg v. Given, 252 Va. 221, 224, 476 S.E.2d 502, 503

(1996); CSX Transportation, Inc. v. Casale, 247 Va. 180, 182–83,

441 S.E.2d 212, 214 (1994). The Court explained that “[n]o

litigant in our judicial system is required to contend with the

opinions of absent ‘experts’ whose qualifications have not been

established to the satisfaction of the court, whose demeanor

cannot be observed by the trier of fact, and whose

pronouncements are immune from cross-examination.” McMunn, 237

Va. at 566, 379 S.E.2d at 912; see also Weinberg, 252 Va. at

225, 476 S.E.2d at 503.

The Commonwealth, however, asserts several reasons why it

believes the specific details of the other unadjudicated

7
allegations of sexual misconduct by Wynn were admissible at his

SVPA trial: (1) the evidence tended to prove Wynn’s mental

condition and risk of re-offending and was therefore more

probative than prejudicial; (2) the allegations were a part of

the factual basis for Dr. Miller’s opinions; (3) the allegations

constituted unadjudicated conduct, which is admissible pursuant

to this Court’s decision in Ellison v. Commonwealth, 273 Va.

254, 639 S.E.2d 209 (2007); (4) an SVPA proceeding is similar to

the “future dangerousness” determination during the sentencing

phase of a capital murder trial and the same evidentiary rules

should therefore apply; (5) the allegations were not hearsay

because they were not offered for the truth of the matter

asserted but to show the factual basis for Dr. Miller’s

opinions; and (6) even if the evidence was hearsay, the

provisions of Code § 37.2-908(C) created an exception to the

hearsay rule for SVPA proceedings. We do not agree with any

aspect of the Commonwealth’s position.

That the details of the other allegations of sexual

misconduct may have been probative to the issues before the

circuit court does not answer the question whether the evidence

was, nevertheless, inadmissible hearsay. Furthermore, the

Commonwealth did indeed offer the allegations for the truth of

the matter asserted. At no time before the circuit court did

the Commonwealth suggest otherwise.

8
 However, the Commonwealth is correct in its assertion that

allegations or unadjudicated charges of sexual offenses have

clinical significance to licensed psychiatrists and licensed

clinical psychologists who perform mental health evaluations

pursuant to Code § 37.2-904(B). We do not question the

propriety of Dr. Miller and other mental health experts

considering and using such allegations in formulating their

opinions as to whether a prisoner qualifies as a sexually

violent predator. But see Commonwealth v. Garrett, 276 Va. 590,

607, 667 S.E.2d 739, 749 (2008) (holding that “three carnal

knowledge petitions standing alone were legally insufficient to

permit [an expert witness] to draw the inference that [the

prisoner] had in fact committed those offenses in the absence of

any additional evidence concerning the circumstances surrounding

the Commonwealth’s decision to dismiss those petitions”). As

Dr. Miller explained, “charges are considered . . . a risk

factor for individuals depending on how many different times

they have been charged with sex offenses, even if they weren’t

convicted.” According to Dr. Miller, psychologists look at the

“quality of the offenses and what happened” as opposed to actual

convictions since they may be the result of plea bargains that

reduced the original charges.

Likewise, Code § 37.2-908(C) provides that an expert

witness testifying at an SVPA trial may state the “basis

9
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. See McMunn, 237 Va. at 565, 379

S.E.2d at 912 (“[Code § 8.01-401.1 is] silent . . . with

respect to the admissibility of the otherwise inadmissible

information upon which the expert’s opinion is based, at

least upon the expert’s direct examination.”).

The Commonwealth, however, asserts that our holding in

McMunn should be limited to “hearsay matters of opinion”

upon which an expert relied. See id. at 566, 379 S.E.2d at

912. We do not agree. Whether an expert relies upon the

opinions of others or allegations of sexual misconduct in

formulating an opinion, both constitute hearsay. While

certain information may be of the type routinely used by

experts in a given field of expertise when formulating

10
their opinions, a litigant, nevertheless, should not be

required to contend with such hearsay information because

the trier of fact cannot observe the demeanor of the

speaker and the statements cannot be tested by cross-

examination. 2 See id.

The inadmissibility of the hearsay evidence concerning the

other allegations of sexual misconduct by Wynn is not altered by

our decision in Ellison. There, the issue was whether the

Commonwealth, in an SVPA trial, could introduce evidence from a

prior criminal trial in which the prisoner had been acquitted of

rape. 273 Va. at 256, 639 S.E.2d at 211. We held that the

introduction of such evidence did not offend double jeopardy

protections of the Virginia and United States constitutions, nor

did it violate the principles of collateral estoppel. Id. at

2
The Commonwealth asserts that our resolution of the issue
before us should be guided by the decision in United States v.
Leeson, 453 F.3d 631 (4th Cir. 2006). Although we recognized in
McMunn that Code § 8.01-401.1 was based, in part, on Federal
Rules of Evidence 703 and 705, there is a significant difference
between our statute and Federal Rule of Evidence 703. In
pertinent part, the rule states: “Facts or data that are
otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court
determines that their probative value in assisting the jury to
evaluate the expert’s opinion substantially outweighs their
prejudicial effect.” (Emphasis added.) Section 8.01-401.1 does
not contain this proviso. The issue in Leeson was whether an
expert witness’ testimony about statements made by two prison
inmates concerning the defendant was admissible under Rule 703.
453 F.3d at 636. Thus, the holding has no relevance to the
issues in this appeal.

11
261, 639 S.E.2d at 214. Moreover, the victim of the alleged

rape testified at the SVPA trial, see id. at 257, 639 S.E.2d at

211–12, so no question arose as to the admissibility of the

testimony on hearsay grounds.

Finally, the Commonwealth asserts that proceedings under

the SVPA are analogous to the future dangerousness determination

at the sentencing phase of a capital murder trial because both

proceedings require a fact-finder to decide the likelihood of an

individual’s engaging in criminal conduct in the future. Since

evidence of a defendant’s unadjudicated criminal conduct is

admissible at a capital murder sentencing proceeding to

determine future dangerousness, see Beaver v. Commonwealth, 232

Va. 521, 528–29, 352 S.E.2d 342, 346–47 (1987), the Commonwealth

contends the evidence regarding the unadjudicated allegations of

Wynn’s sexual misconduct was admissible at his SVPA trial. The

Commonwealth’s argument overlooks the provisions of Code § 19.2-

264.4. The statute lists the types of evidence relevant in the

sentencing phase of a capital murder trial, but states that such

evidence “may be admissible, subject to the rules of evidence

governing admissibility.” Code § 19.2-264.4(B). Also, the fact

that a trial court may consider hearsay evidence contained in a

postsentence report prepared and filed in accordance with Code

§§ 19.2-264.5 and -299, see O’Dell v. Commonwealth, 234 Va. 672,

12
701–02, 364 S.E.2d 491, 508 (1988), does not alter our

conclusion.

Thus, we conclude the circuit court did not err by refusing

to allow Dr. Miller to testify about the details of the other

alleged acts of sexual misconduct by Wynn. Even though Dr.

Miller relied on those allegations in formulating his opinions,

the information came from sources unavailable for cross-

examination. The evidence clearly fell within the realm of

hearsay and was, therefore, inadmissible.

With regard to the evidentiary ruling concerning Dr.

Miller’s written report, the Commonwealth complains that the

circuit court redacted more sections of the report than the

portions identified by Wynn as examples of the hearsay contained

in the report. Wynn’s objection, however, was not as limited as

the Commonwealth suggests. Instead, Wynn argued to the circuit

court that the report contained a “significant amount of

hearsay” and was “replete with various items which quite frankly

are inadmissible.” Wynn was correct. Hearsay abounded in the

redacted portions of the report. For the reasons already

discussed in this opinion, the hearsay information in Dr.

Miller’s report was not admissible.

The Commonwealth further asserts that the jury “was given a

dissected and incomplete report with only portions of Dr.

Miller’s opinions and no explanation for the bases of those

13
opinions.” In comparing the redacted portions of the report

with Dr. Miller’s testimony, we find the jury actually learned

much of the redacted information from Dr. Miller.

Significantly, Dr. Miller testified at length concerning his

opinions and the basis for those opinions.

Finally, during oral argument before this Court, the

Commonwealth asserted that Dr. Miller’s report was akin to a

report by a mental health expert in a general commitment

proceeding for involuntary admission. According to the

Commonwealth, such a report is admissible by statute and, by

implication, Dr. Miller’s report was therefore admissible. The

provisions of Code § 37.2-815 require a mental health

professional examining a person who is the subject of a hearing

for involuntary admission to “provide a written report of his

examination prior to the hearing.” Code § 37.2-815(C). The

written report “may be accepted into evidence unless objected to

by the person or his attorney, in which case the examiner shall

attend in person or by electronic communication.” Id.

Additionally, prior to a civil commitment hearing for

involuntary admission, “[t]he district court judge or special

justice shall require a preadmission screening report from the

community services board,” which “shall be admissible as

evidence of the facts stated therein.” Code § 37.2-816. The

report must include conclusions and recommendations as to

14
whether a person should be involuntarily committed. Id. In the

absence of similar express statutory language in the SVPA, we

are unwilling to hold that written reports by mental health

expert witnesses are automatically admissible in SVPA trials.

In sum, the hearsay information in the redacted portions of

Dr. Miller’s report was not admissible, and no statute or other

authority compelled the circuit court to admit the unredacted

report in its entirety. Thus, we reach the same conclusion as

we did previously. The circuit court did not err by admitting

into evidence only portions of Dr. Miller’s written report.

III. CONCLUSION

For the reasons stated, we will affirm the judgment of the

circuit court.

Affirmed.

15