DWIGHT KEITH SMITH v. COMMONWEALTH OF VIRGINIA
Record No. 091535
Supreme Court of Virginia
June 10, 2010
SENIOR JUSTICE HARRY L. CARRICO
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER, Jоhn E. Wetsel, Jr., Judge
OPINION BY SENIOR JUSTICE HARRY L. CARRICO
In this appeal in a sexually violent predator case, we decide whether the circuit court erred in holding that Dwight Keith Smith “remains a sexually violent predаtor and remains in need of secure inpatient hospitalization.” This holding was made in Smith’s fifth annual review hearing as required by
This Court awarded Smith an appeal on two assignments of error, (1) that the circuit court erred in considering evidence containing inadmissible and hearsay opinions; and (2) that the evidence was insufficient to support the circuit court’s determination that continued civil commitment was necessary.
BACKGROUND
Prior to an annual review hearing,
Prior to the review hearing in Smith’s case, the Commonwealth filed the written report of Dr. Mario Dennis, a licensed clinical psychologist and the Clinical Director of the Virginia Center for Behavioral Rehabilitation in Burkeville, Virginia, a facility that houses and treats sexually violent predators. The complete file of Smith’s treatment for the past year at the Center was filed along with the report. Smith objected to the introduction of the report and the trеatment records on the ground they contained inadmissible hearsay and impermissible opinions. The circuit court refused the introduction of the report and excluded opinions contained in the treatment records.1
ANALYSIS
In oral argument befоre this Court, Smith stated that a sexually violent predator case is “kind of like what can happen to you in a criminal law case,” i.e., “if you lose, you go into a lockup facility very much like a jail.” Accordingly, Smith concluded, “all of the rules of evidence of criminal law should apply.”
However, in Shivaee v. Commonwealth, 270 Va. 112, 613 S.E.2d 570 (2005), this Court considered the constitutionality of the Sexually Violent Predator Act (SVPA), formerly Code §§ 37.1-70.1 through 37.1-70.19, the forerunner of present Chapter 9 of Title 37.2, entitled “Civil Commitment of Sexually Violent Predators,”
Several observations this Court made in Shivaee are pertinent here:
The SVPA was codified by the General Assembly as a civil statute, as indicated by its placement in Title 37. Nothing in the SVPA suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm.
. . . .
That the General Assembly chose to afford the procedural protections provided in the SVPA does not transform a civil commitment proceeding into a criminal prosecution. Thus, the SVPA is a non-punitive, civil commitment statute.
Id. at 125-26, 613 S.E.2d at 577-78 (citations and internal quotation marks omitted). And, as this Court said in Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 624 S.E.2d 453 (2006): “Even though involuntary civil commitment is a
Inadmissible Hearsay and Opinions
After the circuit court sustained Smith’s objection and refused the introduction of the report required by
The circuit court overruled Smith’s objection, citing Commonwealth v. Wynn, 277 Va. 92, 671 S.E.2d 137 (2009), where this Court stated as follows:
Code § 37.2-908(C) provides that an expert witness testifying at an SVPA trial may state the basis for his opinions. Similarly, pursuant toCode § 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.
Furthermore, in McDowell v. Commonwealth, 273 Va. 431, 641 S.E.2d 507 (2007), this Court stated as follows:
As а recognized exception to the hearsay rule, [this Court has] adopted the modern Shopbook Rule, allowing in given cases the admission into evidence of verified regular entries without requiring proof from the original observers or record keepers.
In many cases, . . . practical necessity requires the admission of written factual evidence based on considerations other than the personal knowledge of the recorder, provided there is a circumstantial guarantee of trustworthiness. The trustworthiness or reliability of the records is guaranteed by the regularity of their preparation and the fact that the records are relied upon in the transaction of business by the person or entities for which they are kept and they are kept in the ordinary course of business made contemporaneously with the event by persons having the duty to keep a true record. The final test is whether the documents sought to be introduced are the type of records which are relied upon by those who prepare them or for whom they are prepared.
Id. at 434-35, 641 S.E.2d at 509 (citations and internal quotation marks omitted).
The treatment records at issue in this case easily pass these tests. Dr. Dennis, the Commonwealth’s expert witness, testified that “department policy” required the creation of a “master treatment plan for everyone in our treatment program,”
Dr. Dennis testified further that all these records are maintained in the “regular and ordinary course of business for all residents.” And he stated that similar records were maintained for Smith in this case.
Neither in the circuit court nor in this Court has Smith identified the particular matters he considers as inadmissible hearsay, apparently content with a broadside assertion that “[i]t is almost entirely hearsay.” That is obviously not true, but Smith may find some comfort in the fact that this was a bench trial, and “[a] judge, unlike a juror, is uniquely suited by training, experience and judicial discipline to disregard potentially prejudicial commеnts and to separate, during the
Insufficiency of the Evidence
“The burden of proof at the [annual review] hearing shall be upon the Commonwealth to prove to the court by clear and convincing evidence that the respondent remains a sexually violent predator.”
Clear and convincing evidence has been defined as that measure or degree of proof which will produce in the mind of the triеr of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable dоubt as in criminal cases. It does not mean clear and unequivocal.
Id. at 275, 609 S.E.2d at 13 (citations and internal quotation marks omitted).
“In accordance with established principles of appellate review, we view the facts in the light most favorable to the Commonwealth, the prevailing party below.” Shivaee v. Commonwealth, 270 Va. at 127, 613 S.E.2d at 578. When the facts of this case are so viewed, the conclusion is inescapable that the Commonwealth has carried its burden of proving by
Indeed, Smith has made little or no progress since his last annual review. He is still in Phase I in his treatment, and he must reach Phase III before he can be considered for conditional release. At one point along the way, he moved up to Phase II but then regressed and has stayed in Phase I ever since.
Smith is currently diagnosed, as he has been diagnosed previously, to be suffering from several conditions, including “[p]araph[i]lia NOS, or not otherwise specified, hepoph[i]lia.” This is described as “a deviant sexual interest or sexual arousal to adolescents, individuals who are sexually developed, but who are under age and therefore sexual contact with them would be illegal.” Smith аcknowledges on brief that his predicate offense was for “an aggravated sexual battery involving a 14 year old boy.”
Smith has a history of “[a]lcohol dependence.” This means that he is “psychologically and physiologically dependent upon . . . alcohol, and withdrawal or abstinence results with some withdrawal symptoms, [or] other physical consequences.” Smith denied that he was an alcoholic, and he resisted some “cognitive restructuring” that treatment personnel wаnted to provide to help him cope with his alcohol dependence.
Smith has “expressed pessimistic views on treat[ment] helping him to be conditionally released.” Yet he has failed to take full advantage оf the treatment he was offered. He has persistently refused to respond to questions from treatment personnel without the advice of his attorney, which “get[s] in the way of making the kind of progress [treatment personnel] like to see.” He has rеfused to write in a journal, the purpose of which is to “enhance self expression,” to help “the individual to become more open” about problems. He has had “fundamental disagreement [with a] therapist about some treatment related issues.” His primary therapist described him as “defensive,” as “having built a protective wall around him[self]” and becoming “skilled [in] projecting blame onto others.”
Nothing in the current record disputes the accuracy of Dr. Dennis’s opinions or even suggests that thеre has been any meaningful change in Smith’s status since his last review. Accordingly, this Court affirms the judgment of the circuit court committing Smith to the custody of the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Servicеs for appropriate treatment and confinement in a secure facility.
CONCLUSION
Finding no error in the actions of the circuit court, we will affirm its judgment.
Affirmed.