Com. v. Wynn

Citations: 671 S.E.2d 137; 277 Va. 92; 2009 Va. LEXIS 13Docket: Record 072412.

Court: Supreme Court of Virginia; January 16, 2009; Virginia; State Supreme Court

Original Court Document: View Document

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The Commonwealth of Virginia appealed a ruling from the Circuit Court of Petersburg regarding the civil commitment trial of Freddie Lee Wynn under the Sexually Violent Predators Act (SVPA). The appeal focused on two evidentiary rulings made during the trial. The circuit court had denied the admission of hearsay testimony about unadjudicated sexual misconduct allegations against Wynn and limited the admission of a mental health expert’s written report.

Wynn, who was incarcerated for aggravated sexual battery against a child, had been evaluated by Dr. Glenn Rex Miller, the only mental health expert to testify. Dr. Miller diagnosed Wynn with pedophilia, paraphilia, and antisocial personality disorder, concluding that these conditions made Wynn likely to commit sexually violent acts. During the trial, the Commonwealth sought to introduce details of other allegations against Wynn from children other than the victim of his convictions. Wynn objected, citing hearsay issues and his inability to cross-examine the sources of those allegations. The circuit court allowed Dr. Miller to mention the existence of other allegations but prohibited the specifics.

Ultimately, the jury found Wynn not to be a sexually violent predator, leading the circuit court to enter an order reflecting this verdict. The Supreme Court affirmed the circuit court's evidentiary decisions, concluding that they did not constitute error.

During the Commonwealth's examination of Dr. Miller, questions were posed regarding additional allegations against Mr. Wynn, to which Dr. Miller affirmed he reviewed relevant records. However, the Commonwealth refrained from inquiring if these allegations involved children, despite a circuit court ruling permitting such questions. The jury was nonetheless exposed to some details about the accusations from other children. At the conclusion of Dr. Miller’s examination, the Commonwealth sought to introduce his written report, which Wynn objected to, citing hearsay and asserting that his live testimony represented the best evidence. Wynn highlighted the report’s sections detailing allegations from other children, threats of suicide, and conclusions from a psychologist who previously evaluated Wynn. The circuit court admitted certain pages of the report, including those discussing the evaluation’s purpose, Dr. Miller’s assessments, and his conclusions regarding Wynn's classification as a sexually violent predator.

On appeal, the Commonwealth contends the circuit court erred by not allowing the expert to testify about additional allegations and by restricting the introduction of the full report. It is noted that evidentiary rulings are generally reviewed for abuse of discretion, but the court cannot admit clearly inadmissible evidence based on legal principles. Hearsay is inadmissible unless it falls under an exception, and the court acknowledged that the trial court erred in allowing such testimony. The Sexually Violent Predator Act (SVPA) mandates evaluations by qualified mental health professionals and permits them to testify about their diagnoses and recommendations. However, the SVPA does not permit hearsay during expert testimony in SVPA trials, leading to reliance on general rules for expert testimony in civil cases for this matter.

In McMunn v. Tatum, the Virginia Court ruled that expert witnesses cannot testify about hearsay opinions from others when forming their own expert opinions, as outlined in Code 8.01-401.1. The Court emphasized that litigants should not have to confront the opinions of absent experts whose qualifications are unverified and whose statements cannot be cross-examined. The Commonwealth argued that details of unadjudicated sexual misconduct allegations against Wynn were admissible in his SVPA trial for several reasons: they were relevant to his mental condition and risk of re-offending, formed part of the factual basis for expert opinions, were admissible as unadjudicated conduct, mirrored evidentiary standards used in capital sentencing, were not hearsay, and if they were, an exception existed under Code 37.2-908(C). The Court disagreed with the Commonwealth's arguments, stating that the evidence was inadmissible hearsay, and the Commonwealth had presented the allegations for their truth. While acknowledging that such allegations can be significant for mental health evaluations, the Court referenced prior case law indicating that unadjudicated charges must be supported by additional evidence for expert conclusions. Dr. Miller noted that the number of charges can be a risk factor, regardless of conviction status.

Psychologists assess the severity of offenses rather than just convictions, as convictions may be influenced by plea deals. Code 37.2-908(C) allows expert witnesses in SVPA trials to explain the basis of their opinions, while Code 8.01-401.1 permits experts to rely on facts and data typically used in their field, even if not admissible as evidence. However, hearsay cannot be introduced during an expert's direct examination simply because it informed their opinion. The case McMunn emphasizes that both expert reliance on others’ opinions and allegations of misconduct qualify as hearsay, which cannot be tested through cross-examination, maintaining the inadmissibility of hearsay evidence regarding Wynn's past allegations. The decision in Ellison does not change this inadmissibility. The Commonwealth's argument to liken SVPA proceedings to capital murder sentencing, where unadjudicated conduct can be considered, is countered by differences in the legal standards applicable to each context. Code 8.01-401.1 lacks a provision that allows the disclosure of otherwise inadmissible information to the jury, unlike Federal Rule of Evidence 703, which weighs probative value against prejudicial effect. The Commonwealth's reference to United States v. Leeson is deemed irrelevant to the current issues.

The argument presented by the Commonwealth fails to account for Code 19.2-264.4, which outlines the types of evidence admissible in the sentencing phase of a capital murder trial, subject to the rules of evidence. The trial court's consideration of hearsay from a postsentence report, as permitted by Code 19.2-264.5 and -299, does not change the outcome. The circuit court appropriately denied Dr. Miller’s testimony regarding other alleged acts of sexual misconduct by Wynn, as the sources of that information were not cross-examinable and constituted hearsay, making it inadmissible.

Regarding Dr. Miller’s written report, the Commonwealth contends that the circuit court redacted more than what Wynn identified as hearsay. However, Wynn's argument encompassed a broader claim of substantial hearsay throughout the report, which was valid. The redacted report was indeed filled with hearsay, justifying the circuit court's decision. The Commonwealth also argued that the jury received an incomplete report without understanding the basis for Dr. Miller’s opinions. Nonetheless, Dr. Miller provided extensive testimony explaining his opinions, which mitigated the concern over the redactions.

Additionally, the Commonwealth likened Dr. Miller’s report to mental health expert reports in involuntary commitment proceedings, which are statutorily admissible. However, the relevant statutes (Code 37.2-815) contain specific provisions for such reports that are absent in the Sexually Violent Predator Act (SVPA). Therefore, there is no statutory mandate for the admissibility of mental health expert reports in SVPA trials. Consequently, the hearsay in Dr. Miller’s report was rightly deemed inadmissible, and the circuit court did not err in allowing only portions of the report into evidence. The judgment of the circuit court is affirmed.