Commonwealth v. Broadie

77 Va. Cir. 476, 2007 Va. Cir. LEXIS 326

• Court: Richmond County Circuit Court
• Decided: June 26, 2007
• Docket: Case No. CL06-4793-3
• Status: Published

Opinion

By Judge T. J. Marrow

At the conclusion of the presentations of all of the evidence, the defendant moved to strike the Commonwealth’s evidence arguing that he is not subject to the provision of Chapter 9 of Title 37.2 of the Code (“The Act”). He states that Va. Code § 3 7.2-903 (C) (in effect prior to July 1,2006) required that, for the Act to apply to him, he must have been scored a 4 or better on the Rapid Risk Assessment for Sexual Offender Recidivism (“RRASOR”) test. He was scored as a 3 on that test.

The Commonwealth counters that Va. Code § 37.2-903(C) does not make the RRASOR the only test for qualifying one for the Act. Section 37.2-903 of the Code provides, in pertinent part, that, to qualify for a proceeding under the Act, the inmate must score a 4 or better on the RRASOR “or a like score on a comparable, scientifically validated instrument designated by the Commissioner.”

The 2006 session of the General Assembly amended § 3 7.2-903 (C) by substituting “a score of 5 or more on the Static 99....” for the RRASOR.

Anticipating the effective date of the amendment, July 1,2006, and at the direction of Steven Wolf, an employee of the Department of Mental Health, Mental Retardation, and Substance Abuse Services, the risk assessment examiners began to use the Static 99 for inmates to be released after July 1,2006. The Static 99 was administered to the defendant on May 3, 2006. Defendant scored a 7 on that instrument.

The Virginia Supreme Court has ruled that the Act must be strictly construed and that an inmate who scores less than the statutory risk qualifier cannot be proceeded against under the Act. See Miles v. Commonwealth, 272 Va. 302, 634 S.E.2d 330 (2006).

Here the statutory risk qualifier in effect when the risk assessment tests were conducted was a 4 or more on the RRASOR. The qualification is where the “Commissioner” has designated “a comparable, scientifically validated instrument.. ..” See Va. Code § 37.2-903(C). “Commissioner” refers to the Commissioner of Mental Health, Mental Retardation, and Substance Abuse Services. See Va. Code § 37.2-100. It is stipulated that Dr. Wolf was authorized to designate the use of the Static 99 as a qualifying instrument in lieu of the RRASOR instrument as of May 2006.

The Commonwealth has complied with the Act. The Motion to Strike is overruled.

The court finds by clear and convincing evidence that the respondent Eddie Lee Broadie, Jr., a/k/a Eddie Broadie, Jr., is a sexually violent predator. The parties agreed that, if such a finding was made, a hearing would be scheduled to determine what disposition is appropriate. Counsel shall schedule that hearing promptly.