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
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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
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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.
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