Com. v. Allen

• Citation: 269 Va. 262,609 S.E.2d 4
• Decision Date: 03 March 2005
• Docket Number: Record No. 041454.
• Parties: COMMONWEALTH of Virginia v. Richard Bryan ALLEN.
• Court: Virginia Supreme Court

609 S.E.2d 4

269 Va. 262

COMMONWEALTH of Virginia¹ v. Richard Bryan ALLEN.

Record No. 041454.

Supreme Court of Virginia.

March 3, 2005.

Pamela A. Sargent, Senior Asst. Atty. General (Jerry W. Kilgore, Atty. General; Francis S. Ferguson, Deputy Atty. General, on brief), for appellant.

Andrea L. Moseley, Alexandria (Leibig, Moseley and Bennett, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

Pursuant to Code § 37.1-70.6(A), the Commonwealth petitioned the Circuit Court of the City of Alexandria to civilly commit Richard Bryan Allen as a sexually violent predator. Following a hearing, the trial court sitting without a jury determined that the Commonwealth had not met its burden of proving by clear and convincing evidence that Allen is a sexually violent predator. Accordingly, the trial court dismissed the Commonwealth's petition. The Commonwealth appeals from this judgment, contending that the trial court erred in admitting the testimony of Allen's expert witness, a psychologist who is not licensed to practice in Virginia. The Commonwealth further contends that the trial court erred in finding that the Commonwealth had not met its burden of proof.

BACKGROUND

On January 19, 1983, Allen was convicted of the aggravated sexual battery of an eight-year-old girl and a nine-year-old girl. Allen was sentenced to ten years' imprisonment for each offense, with the sentences to run consecutively. Allen was released on parole on September 13, 2001. Within days of his release, however, Allen violated the conditions of his parole and was returned to prison to serve the remainder of his sentence. On July 9, 2003, as required by Code § 37.1-70.4(C), the Director of the Virginia Department of Corrections notified the Commitment Review Committee (CRC) that Allen, who was scheduled to be released from prison on September 14, 2003, was subject to review for commitment because he was incarcerated for a sexually violent offense and had been identified through a preliminary screening test as being likely to re-offend. As required by Code § 37.1-70.5(B), the CRC referred Allen to Dr. Ronald M. Boggio, Ph.D., a licensed clinical psychologist, for evaluation. Following receipt of Dr. Boggio's evaluation report, the CRC completed its assessment of Allen and, on August 7, 2003, forwarded to the Attorney General a recommendation that the Commonwealth seek to have Allen committed to a secure mental health facility as a sexually violent predator.

On August 14, 2003, the Commonwealth filed in the trial court a petition for the civil commitment of Allen as a sexually violent predator. The trial court appointed counsel to represent Allen, Code § 37.1-70.2, and, upon Allen's motion, ordered that funds be provided for a mental health expert to aid in Allen's defense, Code § 37.1-70.8. Thereafter, the trial court conducted a hearing as required by Code § 37.1-70.7. The trial court determined that there was probable cause to believe that Allen is a sexually violent predator and ordered that Allen be held in custody until a full hearing on the Commonwealth's petition could be conducted. Although permitted by Code § 37.1-70.9(B), neither Allen nor the Commonwealth requested a jury trial on the commitment petition.

On December 12, 2003, the trial court conducted a trial on the Commonwealth's petition.² The Commonwealth presented evidence from Carmen Baylor, the custodian of records for the Greensville Correctional Center where Allen had been incarcerated. Baylor testified that while incarcerated Allen had committed 246 institutional infractions, including 15 for assault, four for indecent exposure, most recently in January 2003, and one instance of having consensual sex with another inmate.³

Barbara Ward, a senior probation/parole officer with the Alexandria Adult Probation/Parole Office testified for the Commonwealth that she was assigned to supervise Allen's parole following his initial release from prison on September 13, 2001. Ward testified that she explained the rules of his parole to Allen, and that he acknowledged his agreement to abide by them. Nonetheless, Allen was late for his next meeting with Ward on September 17, 2001 and failed to appear for the next subsequent meeting.

Ward testified she learned that Allen had been seen with a young woman with Down's Syndrome who was referring to Allen as her "boyfriend." After Allen was arrested for violating the terms of his parole by failing to meet with Ward, Ward went to Allen's room at the halfway house where he had been staying and discovered that he had come into possession of a pornographic magazine.

Dr. Boggio, the psychologist who had performed the pre-release evaluation of Allen for the CRC, testified as the Commonwealth's mental health expert. Dr. Boggio principally based his testimony upon the personal interview and tests he had conducted during his evaluation of Allen. Dr. Boggio testified that Allen recounted a lengthy history of behavioral problems from an early age, including setting fires, police confrontations, and hitting other children and teachers. Allen was suspended from the New York City public schools as a result of his violence, and lived as a runaway for a period of time.

Dr. Boggio further testified that Allen bragged about the extent of his violent behavior and expressed no remorse. Allen told Dr. Boggio that ever since Allen was a child he had been known for having a "temper problem" and for being easily angered. When Allen was a teenager, he pulled a knife on a female co-worker who referred to him with a racial slur.

According to Dr. Boggio, Allen had a long history of psychiatric care that began as a juvenile, including both inpatient and out-patient treatment. Allen was expelled for fighting from the Commonwealth Center for Children & Adolescents, then known as the DeJarnette Center, an acute care mental health facility operated by the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services. Dr. Boggio also reviewed the pre-sentence investigation from Allen's convictions for aggravated sexual battery, which revealed that his behavioral problems began at age four-and-a-half, including disruptive and aggressive behavior, and later included sexually inappropriate behavior. Allen also reported 13 suicide attempts, beginning at age 13. Dr. Boggio also testified that the official records indicated Allen had diagnoses of the depressive disorder spectrum as well as antisocial personality disorder (APD) and polysubstance dependence. At least two of Allen's institutional charges were for possession or use of alcohol or illegal substances.

Allen reported to Dr. Boggio that his first sexual experience was intercourse with two girls when he was 16; one girl was between 11 and 13 years of age and the other was 13 or 14. Allen also told Dr. Boggio that he had an on-going sexual relationship with an eleven-year-old girl when he was seventeen. Allen also claimed to have had a sexual relationship with the mother of his two victims, and admitted that he had engaged in homosexual activity while in prison. Allen claimed never to have been "in love" with anyone despite having had many different relationships.

Dr. Boggio testified that Allen claimed he thought his nine-year-old victim was twelve, because she was "very developed." He also claimed that the nine-year-old victim initiated the sexual encounter. He denied having assaulted the eight-year-old victim. Dr. Boggio found it important to note that Allen had no immediate post-abuse feelings about himself, the victims, or his behavior other than to deny involvement, and that Allen expressed no remorse for the victims. Similarly, Allen denied responsibility for the infractions he committed while incarcerated.

Dr. Boggio diagnosed Allen with APD, dysthymic disorder, and polysubstance dependence. Dr. Boggio testified, reading from the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed. Revised text 2000), regarding APD:

In order to meet this diagnosis, one has to have three of the following: Failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest ... deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure ... impulsivity or failure to plan ahead... irritability and aggressiveness, as indicated by repeated physical fights or assaults ... reckless disregard for the safety of self or others ... consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations ... lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another. Additionally, the individual has to be at least 18 years of age and has evidence of conduct disorder with onset before age 15.

Dr. Boggio testified that Allen met all of these criteria, with the possible exception of failing to maintain a consistent work history.

Based on tests he administered to Allen, Dr. Boggio testified that Allen has a composite IQ score of 103, plus or minus 6 points, indicating that Allen is of average intelligence. Dr. Boggio also had Allen complete the Millon Clinical Multiaxial Inventory-III (MCMI-III). Dr. Boggio testified that Allen's responses to the MCMI-III showed that he has longstanding personality defects with no coping mechanisms, meaning that Allen would repeat problem behaviors over and over again, despite the consequences.

Dr. Boggio also had Allen complete the Hare Psychopathy Checklist Revised (Hare), an instrument designed to measure psychopathic behaviors. Allen's score on this test placed him in approximately the 90th percentile of incarcerated individuals, suggesting a strong indication of a psychopathy to take advantage of and manipulate people without regard to their feelings or thoughts, and a...