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.