Boyce v. Com.

• Decision Date: 15 April 2010
• Docket Number: Record No. 090881.
• Citation: 691 S.E.2d 782
• Court: Virginia Supreme Court
• Parties: Darrell Eugene BOYCE v. COMMONWEALTH of Virginia.

691 S.E.2d 782

Darrell Eugene BOYCE v. COMMONWEALTH of Virginia.

Record No. 090881.

Supreme Court of Virginia.

April 15, 2010.

Michael T. Soberick (Dusewicz & Soberick, on brief), Hayes, for appellant.

Angela Boice Axselle, Assistant Attorney General (William C. Mims, Attorney General; James W. Hopper, Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN,^* KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ.

OPINION BY Justice LEROY F. MILLETTE, JR.

In this appeal, we consider whether the circuit court erred by refusing to strike the testimony of a mental health expert who relied upon a criminal charge for taking indecent liberties with children that was dismissed by nolle prosequi as a factor in forming the opinion that the appellant met the criteria for a sexually violent predator.

BACKGROUND

The Commonwealth filed a petition under the Sexually Violent Predators Act (SVPA), Code § 37.2-900 et seq., seeking to have Darrell Eugene Boyce, who had previously been convicted of a sexually violent offense, committed as a sexually violent predator. A sexually violent predator is defined, in pertinent part, as any person who (1) has been convicted of a sexually violent offense, and (2) because of a mental abnormality or personality disorder, finds it difficult to control his or her predatory behavior, which makes him or her likely to engage in sexually violent acts. Code § 37.2-900.

During a jury trial, the Commonwealth presented expert testimony from Dr. Glenn R. Miller, Jr., a clinical psychologist, who was accepted as a psychological expert in the diagnosis, risk assessment, and treatment of sex offenders. Dr. Miller testified that during his career, he had performed around 1,000 evaluations of sex offenders, including 275 evaluations under the SVPA. In evaluating Boyce, Dr. Miller reviewed records, interviewed Boyce, and performed various risk assessments. Based upon this information, Dr. Miller opined that Boyce suffered from both a mental abnormality, pedophilia, and personality disorder, not otherwise specified, with antisocial traits.

According to Dr. Miller, pedophilia is a deviant sexual interest in children. Dr. Miller opined that Boyce's personality disorder causes him to violate society's rules and customs, and to continue such behavior even after being caught and punished for it. Dr. Miller concluded that Boyce's pedophilia and personality disorder made it difficult for him to control his predatory behavior and that Boyce had a high risk to re-offend. It was Dr. Miller's opinion that Boyce met the criteria for a sexually violent predator under the SVPA.

During his testimony, Dr. Miller stated that in formulating his opinion he considered a 1979 charge against Boyce for taking indecent liberties with children that had been dismissed upon the Commonwealth's motion for nolle prosequi. The dismissed charge was one of two indecent liberties charges brought against Boyce, with different victims, heard in the same circuit court on June 13, 1979. One of these charges resulted in a finding of guilt pursuant to a plea agreement while the other charge was dismissed upon the Commonwealth's motion for nolle prosequi.

Dr. Miller stated that it was accepted practice within his field to consider both convictions and charges for sex offenses. Although Dr. Miller considered the dismissed 1979 charge as a factor in his opinion, he testified that his opinion "is not based on any single incident but rather on the totality of all the information."

Regarding the dismissed charge, Dr. Miller stated that

from an actuarial standpoint, it doesn't matter whether Boyce did it. The reality is that individuals who are charged with more sexual assaults have a higher risk of being re-convicted sic of a new sex offense. It doesn't matter whether he did it. The reality is that research indicates that those charged have a higher risk of re-convicting sic in the future.

At the close of the Commonwealth's evidence, Boyce made a motion to strike, arguing that Dr. Miller's testimony was improper because he relied on the 1979 charge for taking indecent liberties with children that was dismissed by nolle prosequi in rendering his opinion. Boyce contended that this Court's decision in Commonwealth v. Garrett, 276 Va. 590, 667 S.E.2d 739 (2008), requires that Dr. Miller's testimony be stricken. The circuit court denied Boyce's motion to strike. Boyce renewed his motion to strike at the conclusion of all of the evidence, and the circuit court denied the motion.

The jury found that Boyce met the definition of a sexually violent predator. The circuit court committed Boyce to the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services. Boyce appeals.

DISCUSSION

Boyce argues that the circuit court erred in refusing to strike Dr. Miller's testimony. Boyce asserts that the circuit court should have granted his motion to strike Dr. Miller's testimony because Dr. Miller, in forming his expert opinion, relied, in part, on a 1979 charge against Boyce for taking indecent liberties with children that had been dismissed upon the Commonwealth's motion for nolle prosequi.

In response, the Commonwealth argues that Garrett does not support Boyce's argument that Dr. Miller's testimony should have been excluded. In support of this argument, the Commonwealth notes that Dr. Miller considered the dismissed 1979 charge as one factor among many in reaching his conclusion, and that Dr. Miller did not assume that Boyce had committed the offense charged. The Commonwealth also contends that experts may consider unadjudicated charges in forming their opinions in sexually violent predator cases.

On appeal, we generally review 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.'" Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139 (2009) (quoting Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995)) (internal quotation marks omitted).

At the outset, we must clarify that the evidentiary ruling in question is not the admission of the dismissed 1979 charge. Although Boyce objected to the introduction of the dismissed indictment at trial, he failed to assign error to the circuit court's overruling of his objection. The issue, then, is whether the circuit court abused its discretion in failing to strike Dr. Miller's entire testimony because he considered a dismissed charge as a factor in forming his opinion that Boyce met the criteria for being a sexually violent predator.

In Garrett, the expert, as the foundation of her diagnosis of...