Newton Wesley Farley, Jr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Barrow* and
Senior Judge Hodges
Argued at Salem, Virginia
NEWTON WESLEY FARLEY, JR.
v. 	Record No. 0969-93-3 	OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA 	JUNE 20, 1995
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
James M. Dungan, Assistant Public Defender
(William E. Bobbitt, Jr., Public Defender, on
briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
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
* Judge Bernard G. Barrow participated in the hearing and
decison of this case and joined in the opinion prior to his
death.

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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

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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
(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 (3rd 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,

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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

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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 factors can, if the stimuli are ambiguous, look at the
exact same thing, but reach completely different conclusions
about what it is they see. 	When the stimulus world is ambiguous,
that is when the environment is difficult to interpret, humans
have a tendency to let internal factors lead them to conclusions
about their environment. 	The more ambiguous the stimuli, the
more that internal factors influence the conclusion.

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The purpose of camouflage is to create ambiguous stimuli; it
cuts out clear, stark lines which most animals and humans
perceive best. 	Thus, camouflage and the presence of trees and
shrubs could result in ambiguous stimuli so that an individual's
internal factors would tend to affect what one saw. 	It is
possible, given proper circumstances, for a hunter receiving
ambiguous stimuli, with certain expectations, to perceive a
turkey when in fact there was none.
Here, the trial court found Dr. Kibler to be an expert in
his field. 	Although the language of the trial court was not
explicit regarding the reliability of the science, the trial
judge did say that he thought the expert knew what he was talking
about, which we interpret to mean that the trial judge accepted
the expert's proffered testimony as reliable. 	The Commonwealth
did not argue against the expertise of the witness or against the
reliability of the science upon which he based his testimony.
The Commonwealth contended that the expert's testimony concerned
a matter of such common knowledge that to admit it was
unnecessary, and also that to admit it would invade the province
of the jury.
The trial court was required to determine whether the
testimony would have assisted the jury in understanding the
evidence or resolving an issue in the case or whether, instead,
the testimony encompassed matters of common knowledge. 	While it
is true that many jurors may have experienced misperceiving
something, the public at large may not be aware that

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misperception is sometimes the result of a psychological
phenomenon over which to some extent the mind has no control.
The expert's testimony may have assisted the jury in
understanding how Farley might have misidentified the man, whom
he shot, as a turkey or how he might have believed he was
shooting at a turkey.
Specifically, the doctor's testimony would have explained to
the jury how the camouflage contributed to the possibility of
misperception. 	Some jurors might not appreciate how the victim,
being camouflaged and using a turkey call, and Farley, expecting
a turkey, could combine to cause Farley reasonably to believe he
saw a turkey. 	The jury might have wondered how Farley could have
made such a mistake unless he was grossly, wantonly, and wilfully
negligent. 	The expert testimony could have provided the jury
with an explanation that the jury could have found to be a
reasonable hypothesis of innocence. 	Therefore, we believe the
testimony would have assisted the jury in resolving an essential
issue and should not have been rejected on the grounds that it
would not assist the jury or was a matter of common knowledge.
The proffered testimony did not invade the province of the
jury. 	Dr. Kibler did not propose to testify that Farley was not
grossly negligent. 	Rather, he would have testified only that
under certain circumstances, given certain ambiguous stimuli, it
is possible for a person to misperceive what he is seeing.
Relative to Farley, the expert's testimony would have permitted
the jury to infer that Farley was not necessarily lying when he

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said he saw a turkey rather than another human being.
One of the basic principles of hunting safety proved in the
case was "always be sure of your target and what is behind it
before you fire." 	Cable, 243 Va. at 241, 415 S.E.2d at 221.
Farley testified that he identified his target as a turkey and
watched it for a minute before he fired. 	The expert testimony
would have given credence to Farley's testimony that he had
identified his target. 	That evidence would have tended to refute
the Commonwealth's theory that Farley recklessly shot at a target
that he had not first identified.
Even with the expert testimony, the jury could have
disbelieved Farley's explanation. 	Farley's credibility and the
extent to which he was negligent were matters for the jury to
decide. 	Ford v. Ford, 200 Va. 674, 679, 107 S.E.2d 397, 401
(1959). 	Therefore, the evidence should not have been rejected on
the ground that it invaded the province of the jury.
Accordingly, because the evidence was relevant as being
probative of whether Farley acted in a callous, gross, and wanton
disregard for the life of another, because the science upon which
the expert based his testimony was apparently accepted as
reliable, because the evidence did not invade the province of the
jury, and because there were no policy reasons for rejecting the
testimony, we hold that the trial court erred in deciding that
the evidence was inadmissible as a matter of law. 	Because the
trial judge erroneously determined that the evidence was
inadmissible, he did not exercise his discretion in deciding

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whether to admit it. 	Accordingly, the case is remanded to the
trial court for retrial and the trial court should exercise its
discretion in whether to admit the testimony.
Farley also proffered testimony of an expert turkey hunter
who, the Commonwealth stipulated, would have corroborated the
first expert's testimony on the issue of closure. 	This testimony
was also disallowed. 	Upon remand, the admissibility of that
testimony if offered by defendant should be considered in
accordance with the views expressed regarding Dr. Kibler's
testimony.
Reversed and remanded.

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BARROW, J., concurring in part and dissenting in part.
Judge Barrow, who participated in the oral argument and the
decision of this appeal before his death, joined in the decision
to reverse the convictions. 	However, he would have held that
upon the facts and circumstances of the case Kibler's testimony
was admissible as a matter of law. 	Accordingly, we record Judge
Barrow as concurring in part and dissenting in part.