Farley v. Com.

• Decision Date: 20 June 1995
• Docket Number: No. 0969-93-3,0969-93-3
• Citation: 458 S.E.2d 310,20 Va.App. 495
• Parties: Newton Wesley FARLEY, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 310

458 S.E.2d 310

20 Va.App. 495

Newton Wesley FARLEY, Jr. v. COMMONWEALTH of Virginia.

Record No. 0969-93-3.

Court of Appeals of Virginia Salem.

June 20, 1995.

James M. Dungan, Asst. Public Defender (William E. Bobbitt, Jr., Public Defender, on briefs), for appellant.

Eugene Murphy, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., BARROW ^*, J., and HODGES, Senior Judge.

MOON, Chief Judge.

Newton Wesley Farley, Jr., while turkey hunting, shot and killed another hunter. Farley was convicted of involuntary manslaughter and reckless handling of a firearm. He contends that the trial court erred in refusing to admit expert psychological testimony to explain how he could have misidentified the hunter for a turkey. A cardinal rule of hunting is that the hunter identify his target before shooting. Because the trial court found the psychologist to be an expert and his scientific testimony to be reliable, and because we find the proffered testimony to be relevant and without policy reasons against admitting it, we hold that the trial court erred in determining the testimony inadmissible as a matter of law rather than determining whether, within its discretion, the evidence should be admitted.

To convict Farley of involuntary manslaughter, the Commonwealth had to prove that the killing was the result of negligence so gross, wanton, and culpable such as to indicate a reckless or indifferent disregard of human life and of the probable consequences of the act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992). An important aspect of such proof was that Farley did not identify his target before firing. Indeed, the extent to which Farley tried to identify the target is crucial in determining whether he is criminally negligent. See id. at 241, 415 S.E.2d at 221.

To prove the reckless handling of a firearm charge, the Commonwealth had to prove that Farley handled the firearm in a reckless manner such as to endanger the life, limb, or property of another person.

Although Farley did not have a burden of proof, he had the right to put on evidence that tended to show that he did not act in a gross, wanton, and culpable manner. It was crucial to Farley's defense that he prove that he had tried to identify his target before firing.

The admission of evidence is left to the broad discretion of the trial judge. However, if evidence has probative value, it is normally admissible and should be excluded only when its probative value is outweighed by policy considerations which make its use undesirable in the particular case. Blain v. Commonwealth, 7 Va.App. 10, 16-17, 371 S.E.2d 838, 842 (1988); Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). 1 Charles E. Friend, The Law of Evidence in Virginia, § 11-2 (4th ed.1993).

Among the policy considerations that weigh against admitting probative evidence are: (1) its prejudice unfairly outweighs its probative value; (2) its admission is unnecessarily time consuming; and (3) it is confusing and will likely mislead the jury.

Relevant scientific evidence is admissible if the expert is qualified to give testimony and the science upon which he testifies is reliable. O'Dell v. Commonwealth, 234 Va. 672, 695-96, 364 S.E.2d 491, 504-05, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988); see also Myatt v. Commonwealth, 11 Va.App. 163, 166, 397 S.E.2d 275, 277 (1990). There also must be a connection between the evidence and the factual dispute in the case. United States v. Downing, 753 F.2d 1224, 1237 (3d Cir.1985). In addition to other reasons for excluding otherwise relevant expert testimony, the trial judge may determine that the subject matter of the evidence is a matter of common knowledge and will not assist the trier of fact in understanding the evidence or in determining a fact in issue. The court may determine that the evidence will invade the province of the jury. See id. at 1229.

Farley's version of the shooting was as follows: He was hunting with his father and brother around 5:30 a.m., May 20, 1992. The three men split up in the woods. About thirty minutes later and while using a turkey call, Farley heard a turkey gobble. Farley began to move in the direction from which the noise came. Farley then came to an area in the woods where he heard a turkey coming toward him, and he then believed he saw the turkey. He believed he saw the head of the turkey and the turkey ruffling its feathers as if it were going to fight.

Farley testified that before he shot, he sighted through his scope and looked at the target for approximately one minute. In his mind, he believed he was shooting at a turkey. After firing his gun, he discovered that what he had seen was not a turkey but a man who was dressed in camouflage, including a camouflage hood with mask, and who had been using a turkey call while hiding in a bush.

At trial, Farley proffered expert testimony with respect to perception and a phenomenon associated therewith known as "closure." John L. Kibler, III, Associate Professor of Psychology and Chairman of the Psychology Department at Mary Baldwin College, an experimental psychologist, has taught courses in sensation and perception for eleven years. The Commonwealth stipulated that he was an expert in his field.

Kibler's proffered testimony is summarized as follows:

Humans have sense receptors that respond to stimuli in the environment. Perception is the interception, selection, and organization of stimuli by the brain to extract meaning from the surrounding environment; it is the process by which the brain makes sense out of stimuli to create for one's person an image or impression. The brain is constantly working at interpreting the environment. Through perception, the brain tries to reach a conclusion concerning the environment in order for the person to react to it. However, when the brain receives ambiguous stimuli, it is often difficult or impossible to reach a conclusion about the surrounding environment. "Closure" is the tendency of the brain, when in receipt of ambiguous stimuli, to complete an image for the person based on the ambiguous stimuli even though the image does not actually exist. The brain will come to a conclusion concerning the environment but the conclusion may be wrong. Closure is not a conscious act; the brain performs the function on its own.

Internal factors influence the interpretation of the sense impressions as they come in. The internal factors are previous experiences, expectations, fears, and anticipations. Every individual's perception is subject to differences based upon the stimuli one receives and what one's internal factors are. In other words, two people with the same vision but different internal...