Ferrara v. Commonwealth

PRESENT: All the Justices

FRANK PAUL FERRARA
OPINION BY
v. Record No. 200117 JUSTICE STEPHEN R. McCULLOUGH
February 25, 2021
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge

Frank Paul Ferrara repeatedly refused to cooperate with the expert who was tasked with

evaluating him for purposes of determining whether he was a sexually violent predator for

purposes of Virginia’s Sexually Violent Predators Act (“SVPA”), Code §§ 37.2-900 through

-921. At his commitment hearing, Ferrara sought to introduce as substantive evidence the results

of two prior mental health evaluations, conducted in past years, by a previous expert for the

Commonwealth. The circuit court concluded that, due to Ferrara’s failure to cooperate with the

evaluation required in the present proceedings, Code § 37.2-906 foreclosed the introduction of

this evidence. On appeal, Ferrara argues that the circuit court misconstrued this statute.

Although we agree with Ferrara that Code § 37.2-906 applies to probable cause hearings rather

than civil commitment hearings, we nevertheless affirm the judgment of the circuit court on the

basis of harmless error.

BACKGROUND

Ferrara was convicted of four counts of forcible sodomy of his daughters in 1997. He

was sentenced to 24 years in prison with 9 years suspended and 5 years of supervised probation.

Before he was released, in 2010, Dr. Mark Hastings evaluated Ferrara to determine whether he

qualified as a sexually violent predator. Dr. Hastings determined that Ferrara did not qualify.

Ferrara was released on supervised probation in 2011.
 In 2012, Ferrara’s probation was revoked because of a petit larceny conviction. The

court resuspended all but nine months of Ferrara’s sentence. He was then released in 2013. In

2013 and 2014, Ferrara was convicted of two counts of felony indecent exposure and his

probation was again revoked. He was sentenced to a total of three years and 15 months on the

two convictions.

In 2016, before Ferrara’s scheduled release, Dr. Hastings evaluated him a second time at

the behest of the Commonwealth for possible civil commitment. Dr. Hastings again determined

that Ferrara did not qualify as a sexually violent predator. Several months later, in 2017, the

court revoked Ferrara’s probation because he had attended Jehovah’s Witness meetings where

children were present, despite warnings from his probation officer not to do so without an

approved chaperone. Ferrara was sentenced to an active term of one year and three months.

In advance of Ferrara’s scheduled release, in 2018, he was evaluated a third time for civil

commitment. This time he was evaluated by a different expert, Dr. Dennis Carpenter. Ferrara

refused to participate in Dr. Carpenter’s evaluation -- even after being advised that his refusal to

cooperate would result in him not being able to put on his own expert at the civil commitment

hearing.

Dr. Carpenter concluded that Ferrara was a sexually violent predator eligible for civil

commitment, and he issued a report to that effect. Specifically, upon review of Ferrara’s record

and history, Dr. Carpenter diagnosed Ferrara with pedophilic disorder, nonexclusive type,

sexually attracted to females; exhibitionistic disorder sexually aroused by exposing genitals to

physically mature females; and other specified personality disorder, antisocial personality traits.

Dr. Carpenter concluded that based on Ferrara’s conviction of forcible sodomy he had committed

a sexually violent offense, and that the above-mentioned diagnoses constituted a mental

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abnormality that makes it difficult for Ferrara to control his predatory behavior and makes him

likely to engage in sexually violent acts in the future. Dr. Carpenter’s evaluation addressed the

fact that his determination differed from the previous two evaluations of Dr. Hastings. Dr.

Carpenter’s evaluation notes that Dr. Hastings concluded that Ferrara was not a sexually violent

predator because his pedophilic actions did not take place over a period of six months or more.

However, Dr. Carpenter did “not agree with Dr. Hastings’[s] conclusions,” and he noted that the

six-month guideline articulated in the DSM-5 upon which Dr. Hastings based his conclusion is

merely a guideline and is not mandatory. Dr. Carpenter stated that the pedophilia diagnosis

“may be made if there is clinical evidence of sustained persistence of the sexual attraction to

children even if the 6-month duration cannot be precisely determined.”

Before Ferrara’s probable cause hearing, the court appointed counsel for him. After this

appointment, Ferrara persisted in refusing to cooperate with Dr. Carpenter. Relying on Dr.

Carpenter’s report and other evidence, the court found that probable cause existed.

Ferrara then moved pretrial to introduce the 2010 and 2016 evaluations of Dr. Hastings

and to allow Dr. Hastings to testify at trial. In response, the circuit court held that

1) Respondent shall not elicit testimony during its cross-
examination of the Commonwealth’s expert, Dr. Carpenter, or
make reference to in argument or opening statement, hearsay facts
or opinion contained in prior evaluations conducted by Dr. Mark
Hastings without first laying the requisite foundation; and 2)
Respondent, Respondent’s counsel and Respondent’s witnesses
shall not offer evidence or argument that Respondent previously
served a period of incarceration in the [VDOC] for a sexually
violent offense but prior to his release from VDOC the
Commonwealth did not file a petition to civilly commit
Respondent as a sexually violent predator without first
approaching the Bench, outside the presence of the jury, and
having the Court rule on the matter’s admissibility.

The transcript indicates that the circuit court relied on Code § 37.2-906(D) in excluding Dr.

Hastings’ reports and preventing Dr. Hastings from testifying.

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 The civil commitment proceeding was tried before a jury. At the trial, the circuit court

did not allow Ferrara to call Dr. Hastings as a witness nor did it allow him to introduce either of

Dr. Hastings’ reports. However, the court did permit Ferrara to question Dr. Carpenter on

whether he relied on Dr. Hastings’ report or conclusions. Dr. Carpenter testified that he did not

rely on Dr. Hastings’ conclusion, as he disagreed with it. Specifically, Dr. Carpenter testified

that he did not “think [Dr. Hastings] considered the factual information in the way that I would

consider it and the seriousness of the offenses and the pervasiveness of his aberrant sexual kinds

of behaviors including indecent exposure, and the nature of his offenses.” Dr. Carpenter also

testified at length regarding his evaluation and specifically addressed the DSM-5’s six-month

guideline for a pedophilia diagnosis. Dr. Carpenter further discussed how his application of the

Static 99, Static 99R, and Static 2002R actuarial assessments placed Ferrara in the category of

high risk of sexually reoffending. Ultimately, the jury found that Ferrara was a sexually violent

predator, and the court ordered Ferrara to be civilly committed as a sexually violent predator.

Ferrara appeals.

ANALYSIS

I. CODE § 37.2-907(A) GOVERNS COMMITMENT TRIAL TESTIMONY WHILE CODE
§ 37.2-906(D) APPLIES IN PROBABLE CAUSE HEARINGS.

The parties dispute the extent to which Code § 37.2-906(D) applies at sexually violent

predator commitment hearings. Ferrara maintains that this statute applies in probable cause

hearings only, and that Code § 37.2-907(A) is the provision that governs the commitment

hearing itself. The Commonwealth takes the view that Code § 37.2-906(D) can apply in both the

probable cause hearing and in the commitment hearing. The distinction matters because Code

§ 37.2-906(D) broadly bars a non-cooperating respondent from presenting any expert psychiatric

and psychological evidence, whereas Code § 37.2-907(A) more narrowly bars a non-cooperating

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respondent from presenting evidence from a court appointed expert, i.e., it does not by its terms

bar a non-cooperating respondent from introducing evidence from a retained expert or an expert

for the Commonwealth. Our review of the text and structure of these statutes leads us to agree

with Ferrara.

“Statutory construction is a question of law which we review de novo.” Parker v.

Warren, 273 Va. 20, 23 (2007). First, applying the bar of Code § 37.2-906(D) to civil

commitment hearings would render the language of Code § 37.2-907(A) entirely superfluous.

We disfavor a construction of a statute that renders any part of the statute useless or superfluous.

See Loch Levan Land Ltd. P’ship v. Board of Supervisors, 297 Va. 674, 685 (2019) (“We

ordinarily resist a construction of a statute that would render part of a statute superfluous.”)

(quoting Davis v. MKR Dev., LLC, 295 Va. 488, 494 (2018)); see also Owens v. DRS Auto.

Fantomworks, Inc., 288 Va. 489, 497 (2014).

Second, the sequential structure of the Code provisions as well the text of Code

§ 37.2-906(D) indicate that Code § 37.2-906(D) was intended to apply only to probable cause

hearings. As is relevant here, the Code first contemplates that a prisoner being considered for

civil commitment will be evaluated by an expert. Code § 37.2-904. That evaluation is to

include, among other things, a personal interview by a licensed psychiatrist or a licensed clinical

psychologist. Code § 37.2-904(B). After this evaluation, the Commitment Review Committee

makes a recommendation to the Office of the Attorney General concerning what course of action

to take for a particular person. Code § 37.2-904(C). If the Office of the Attorney General

determines that a particular individual ought to be civilly committed, it will file a petition for

civil commitment. Code § 37.2-905(A). The next step is a probable cause hearing, where the

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court is tasked with determining “whether probable cause exists to believe that [the respondent]

is a sexually violent predator.” Code § 37.2-906(E).

The statute that governs probable cause hearings, Code § 37.2-906(D) provides in

relevant part that

[i]n the event that a respondent refuses to cooperate with the
mental health examination required by § 37.2-904 or fails or
refuses to cooperate with the mental health examination following
rescission of his refusal pursuant to this subsection, the court shall
admit evidence of such failure or refusal and shall bar the
respondent from introducing his own expert psychiatric and
psychological evidence.

If the court finds probable cause, Code § 37.2-907(A) provides that when a respondent

has requested “expert assistance and has not employed an expert at his own expense, the judge

shall appoint such experts as he deems necessary.” Furthermore, if a court finds that probable

cause exists, the case proceeds to a commitment trial. Code § 37.2-908.

This sequential organization of the statutes indicates a legislative intent that Code

§ 37.2-906 should apply in probable cause hearings and Code § 37.2-907(A) should apply to

commitment hearings. In addition, the text of Code § 37.2-906 as a whole is generally directed

at probable cause determinations, not commitment hearings. In other words, the Code provides

one statute that primarily regulates probable cause hearings and another to regulate commitment

hearings.

For these reasons, we conclude that the bar on expert evidence found in Code

§ 37.2-906(D) applies in probable cause hearings, not commitment hearings. Therefore, the trial

court in the present proceeding erred in concluding that Code § 37.2-906(D) barred the

respondent from introducing evidence at his commitment hearing. Furthermore, Code

§ 37.2-907(A) does not apply to exclude Dr. Hastings’ testimony and reports because it bars

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testimony from an expert “appointed to assist the respondent” when the respondent has failed to

cooperate with the Commonwealth’s expert. Code § 37.2-907(A). Dr. Hastings was an expert

for the Commonwealth who was previously tasked with evaluating Ferrara. He was not an

expert appointed for the respondent.

Our construction of Code § 37.2-906(D) and Code § 37.2-907(A), however, does not end

the inquiry. Although no rule or statute governs this precise situation, the question remains

concerning the authority of the court to address a respondent’s refusal to cooperate with the

Commonwealth’s expert under Code § 37.2-904.

II. A TRIAL COURT RETAINS THE AUTHORITY TO ADDRESS GAMESMANSHIP IN THIS
CONTEXT NO LESS THAN IN OTHERS.

It is settled law that “[c]ertain implied powers must necessarily result to our Courts of

justice from the nature of their institution,” powers “which cannot be dispensed with in a Court,

because they are necessary to the exercise of all others.” United States v. Hudson, 11 U.S. (7

Cranch) 32, 34 (1812). These powers are “governed not by rule or statute but by the control

necessarily vested in courts to manage their own affairs so as to achieve the orderly and

expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); 1 see,

e.g., Yarbrough v. Commonwealth, 258 Va. 347, 361 (1999) (trial court has the inherent

authority to administer cases on its docket); Carter v. Commonwealth, 96 Va. 791, 807-08 (1899)

(the power of contempt is inherent in the courts but subject to reasonable regulation by the

legislature). But see Lewis v. Commonwealth, 295 Va. 454, 465 (2018) (a Virginia trial court

“has no inherent authority to depart from the range of punishment legislatively prescribed”)

(quoting Hernandez v. Commonwealth, 281 Va. 222, 225 (2011)); McNally v. Rey, 275 Va. 475,

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Of course, a court’s inherent authority can be codified in a statute or rule, or it can,
within constitutional bounds, be cabined or augmented by a statute or rule.

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480 (2008) (trial court “does not have inherent authority to impose as a sanction an award of

attorney’s fees and costs”). Even in the absence of a governing statute or rule of court, as an

adjunct of a court’s authority to oversee the judicial process and litigation, a court possesses the

inherent power to impose a sanction when a party refuses to abide by an obligation to provide

evidence. 2 See Walsh v. Bennett, 260 Va. 171, 175 (2000) as support for the broad discretion

that a court enjoys in addressing failure to comply with a discovery order; Allied Concrete Co. v.

Lester, 285 Va. 295, 307 (2013) (discussing a trial court’s authority to respond to spoliation and

noting that “[a] trial court generally exercises ‘broad discretion’ in determining the appropriate

sanction for failure to comply with an order relating to discovery” but not citing to any rule of

court for that point). That sanction may include the exclusion of evidence.

Code § 37.2-904 obligates the respondent in a SVPA commitment proceeding to submit

to an examination. The respondent repeatedly failed to comply with that obligation. As when a

respondent refuses to comply with discovery, and deprives the other party of evidence, when a

respondent in a sexually violent predator commitment proceeding refuses to cooperate with the

Commonwealth’s expert and no valid reason exists to excuse or justify this lack of cooperation, a

court possesses the inherent authority to address this failure to cooperate. That authority

includes the exclusion of evidence of the same type as that offered by the Commonwealth.

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The courts of the United States possess similar discretion. See, e.g., Natural Gas
Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397, 1411 (5th Cir. 1993) (courts
possess the inherent power to sanction discovery abuses); Silvestri v. General Motors Corp., 271
F.3d 583, 590 (4th Cir. 2001) (“The right to impose sanctions for spoliation arises from a court’s
inherent power to control the judicial process and litigation.”).

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 III. EXCLUDING EVIDENCE ON THE BASIS OF GAMESMANSHIP DOES NOT OFFEND DUE
PROCESS.

Ferrara maintains that excluding the reports of Dr. Hastings offends due process and

deprives him of a fair trial. A clear line of authority says otherwise. “[C]ivil commitment for

any purpose constitutes a significant deprivation of liberty that requires due process protection.”

Addington v. Texas, 441 U.S. 418, 425 (1979). Although the Due Process Clauses of the

Virginia and United States Constitutions afford a litigant the right to present evidence in his

favor, Va. Const. art. I, § 11; U.S. Const. amend V, due process is not offended when the litigant

forfeits the right through purposeful non-cooperation. “A defendant’s right to present relevant

evidence is not unlimited, but rather is subject to reasonable restrictions.” United States v.

Scheffer, 523 U.S. 303, 308 (1998). 3

For example, the United States Supreme Court has rejected a due process challenge to a

state court’s exclusion of alibi evidence based on the defendant’s refusal to comply with alibi

notice provisions. Williams v. Florida, 399 U.S. 78, 81-82 (1970). In Williams, the Court

observed that “[t]he adversary system of trial is hardly an end in itself; it is not yet a poker game

in which players enjoy an absolute right always to conceal their cards until played.” Id. at 82.

The Court concluded that due process accommodated the State’s alibi notice rule, “which is

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The Sixth Amendment protects a defendant’s right of compulsory process in a criminal
case. U.S. Const. amend VI. A sexually violent predator proceeding is civil. United States v.
Baker, 45 F.3d 837, 842-43 (4th Cir. 1995). Therefore, the Sixth Amendment does not apply.
Instead, the Due Process Clause of the Fifth Amendment is the operative clause. See Jenkins v.
Director, Va. Ctr. for Behavioral Rehab., 271 Va. 4, 15 (2006). We have also held that “[e]ven
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.” Id. Nevertheless, decisions
from the United States Supreme Court construing the Sixth Amendment right of compulsory
process shed light on analogous protections rooted in the Due Process Clause of the Fifth
Amendment.

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designed to enhance the search for truth in the criminal trial by insuring both the defendant and

the State ample opportunity to investigate certain facts crucial to the determination of guilt or

innocence.” Id.

Similarly, in Taylor v. Illinois, 484 U.S. 400 (1988), the Court upheld the exclusion of

witness testimony when the defendant had not complied with a pretrial discovery requirement to

identify his witnesses. The Court stressed the importance of proceeding with caution in

excluding a defense witness, but observed that where the omission “was willful and motivated by

a desire to obtain a tactical advantage . . . it would be entirely consistent with the purposes of the

Compulsory Process Clause simply to exclude the witness’ testimony.” Id. at 414-15.

Consistent with this line of authority, we have held, specifically in the sexually violent

predator context, that where a prisoner facing civil commitment

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.

Hood v. Commonwealth, 280 Va. 526, 540-41 (2010).

After being advised of the consequences of refusing to cooperate, Ferrara persisted. The

predictable consequences of his refusal to cooperate neither deprived him of a fair trial nor

violated due process. Ferrara held the key to unlock the evidence from Dr. Hastings. He chose

to keep it in his pocket.

IV. ANY ERROR BY THE TRIAL JUDGE IN CONSTRUING THE STATUTES WAS HARMLESS.

“Any error that does not implicate the trial court’s subject matter jurisdiction is subject to

harmless-error analysis.” Spruill v. Garcia, 298 Va. 120, 127 (2019). “[I]t is the duty of a

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reviewing court to consider the trial record as a whole and to ignore errors that are harmless,”

lest such courts “retreat from their responsibilities, becoming instead ‘impregnable citadels of

technicality.’” United States v. Hasting, 461 U.S. 499, 509 (1983) (alteration and citation

omitted). Absent an error of constitutional magnitude, “no judgment shall be arrested or

reversed” “[w]hen it plainly appears from the record and the evidence given at the trial that the

parties have had a fair trial on the merits and substantial justice has been reached.” Code

§ 8.01-678. “Under the doctrine of harmless error, we will affirm the circuit court’s judgment

when we can conclude that the error at issue could not have affected the court’s result.” Forbes

v. Rapp, 269 Va. 374, 382 (2005).

We conclude that any error by the circuit court in apprehending the source of its authority

to exclude evidence from Dr. Hastings was harmless. We reach this result for a number of

compelling reasons. First, the respondent in a sexually violent predator commitment proceeding

is required to submit to an examination. Code § 37.2-904. This respondent repeatedly refused to

do so, even with the benefit of counsel. There is no suggestion that his lack of cooperation

stemmed from being indisposed physically or psychologically, or from some other valid reason.

As a matter of basic fairness, courts generally will not permit a litigant to engage in

gamesmanship by refusing to cooperate with the other party’s expert while tendering evidence

from their own expert. See, e.g., Muhammad v. Commonwealth, 269 Va. 451, 507 (2005)

(upholding the trial court’s exclusion of the defendant’s expert mitigation evidence on the basis

that the defendant waived his right to present such evidence by refusing to cooperate with the

Commonwealth’s expert); Grattan v. Commonwealth, 278 Va. 602, 620-21 (2009) (no abuse of

discretion in barring a defendant from introducing evidence from his own insanity expert when

he had refused to cooperate with the Commonwealth’s expert). In addition, the legislature has

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expressed a clear policy of excluding evidence in sexually violent predator proceedings when a

respondent refuses to cooperate. See, e.g., Code §§ 37.2-904, -906, -907. Finally, the trial court

did, in fact, allow Dr. Hastings’ reports to be mentioned as impeachment evidence. If the

Commonwealth refused to abide by its obligations to turn over evidence in discovery, or

flagrantly disregarded its duty to disclose exculpatory evidence and offered no explanation aside

from a stubborn refusal, there is little likelihood it would be permitted to introduce evidence of

the same kind it willfully withheld. In the face of all of this, it is hard to imagine a trial court

exercising its discretion in any way other than the way this trial court did, which was to exclude

these reports as substantive evidence and to bar Dr. Hastings from testifying.

Accordingly, any error by the court in construing the statute in this instance was

harmless, because the result would have been the same: Dr. Hastings’ reports and testimony

would have been excluded as substantive evidence, the trial would not have unfolded any

differently, and the jury would have reached the same outcome.

CONCLUSION

We will affirm the judgment of the circuit court.

Affirmed.

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