                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Petty and Senior Judge Haley
UNPUBLISHED


              Argued at Alexandria, Virginia


              ANTHONY WAYNE SIMPSON
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 1283-12-4                                    JUDGE JAMES W. HALEY, JR.
                                                                                 NOVEMBER 12, 2013
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                                                Timothy K. Sanner, Judge

                                Kirk T. Milam for appellant.

                                Rosemary V. Bourne, Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      Anthony Wayne Simpson, appellant, was convicted of voluntary manslaughter. On appeal,

              he contends the trial court erred by: (1) failing to strike a juror for cause, and (2) improperly

              allowing a blood spatter expert witness for the Commonwealth to testify as to an ultimate issue in

              the case. Finding no error, we affirm appellant’s conviction.

                                                            Background

                      Appellant was charged with the first-degree murder of his adult son. At the beginning of

              voir dire, the trial court gave preliminary instructions, and asked general questions of the

              prospective jurors to determine potential bias, including whether any among them had any reason to

              believe they could not give appellant a fair and impartial trial based on the evidence they heard.

              During this general voir dire, the trial court asked if any of the venire knew or were related to the

              victim. A member of the venire responded that she “went to high school” with the victim. The


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
prosecutor later asked the juror whether the fact that she knew the victim would impact her ability to

judge the evidence in the trial. The juror replied, “Yes.” The prosecutor asked, “In what way?”

The juror replied, “I mean, we were just, like, friends in high school.”

       Later, during individual voir dire, appellant’s counsel questioned the juror further about her

relationship with the victim and her knowledge of the case. The following exchange took place

between appellant’s counsel and the juror:

               Q: And you went to school with [the victim]?

               A: I did. I didn’t graduate with him but I have a lot of friends who
               did and I did know him.

               Q: And do you remember when you heard about this, when he was
               killed?

               A: Yes.

               Q: What was your reaction to that?

               A: I didn’t hear it from, like ---I just read it, like, from the
               newspapers, followed it on Facebook and stuff. You know, I was
               upset about it.

               Q: How often did you see him?

               A: I haven’t seen him recently at all but I mean, I did know him in
               school and I know a lot of people who were really close to him.

                                 *     *     *     *     *     *     *

               Q: [D]id you keep in any regular contact with [the victim] over the
               last couple of years?

               A: No. No.

               Q: But you knew [him] in school.

               A: Uh-huh (indicating yes). I have friends who had recently been
               in contact with him that were pretty close to him.

               Q: And knowing [the victim] the way you knew him, do you think
               you could be fair in this case based on your reaction to his death?



                                                 -2-
A: I mean, yeah, like, listening to everything. You know, I
obviously only know what I’ve, like, read and seen so I think I
could be fair.

Q: [Y]ou mentioned reading or seeing. What sources did you get
information from?

A: The newspaper, the internet, Facebook, stuff like that.

Q: What specific information do you remember getting from the
newspaper? Let’s start with that.

A: Just that somewhat—whatever the incident was in the
newspaper and that he had passed away.

Q: Do you remember how?

A: Not, like, specifically. I’ve heard, but I don’t really know.
I’ve heard, like, a couple of different things.

Q: When you say you’ve heard a couple of different things, were
there other sources where you may have heard these other things?

A: No, not from, like, anybody directly. I’ve just, you know, what
I’ve, like, read.

Q: And that’s what I was getting at.

A: Yeah.

Q: So these friends….

A: I haven’t, like, talked to really friends of mine about the
situation personally.

Q: You also mentioned the internet. Do you know what
information you got from the internet?

A: Just about him passing away. Nothing, like, specific about
what happened or anything like that.

Q: Was his death something you spoke about with these mutual
friends that you-all had?

A: No, not really, no.

Q: And you don’t remember any other information you may have
gotten, whether it was from the newspaper or the internet,
specifically about what happened in this case?


                                -3-
               A: No.

               Q: Do you know how he died?

               A: No. Like, that’s what I’ve heard, like, stabbed or shot. I don’t
               know, like, I’ve heard a couple of different things or read a couple
               different things, saw on, like Facebook and stuff a couple of
               different things.

               Q: But as you sit here today, you couldn’t tell us what….

               A: No.

               Q: One way or the other what actually happened?

               A: No.

               Q: With the bit of information you have, do you think you could
               set that aside and start fresh with this trial and be fair to both the
               Commonwealth and to the defense?

               A: Yes, I could. I mean, I don’t know. I’m kind of, like, nervous,
               but I could, yeah, just starting fresh listening to both sides.

               Q: Well, you seem kind of hesitant and I’m not trying to press
               you. Are you nervous and if you are, that’s understandable.

               A: I’m kind of nervous, yeah.

               Q: But I’m just trying to figure out if you could be fair if you sit as
               a juror in this case.

               A: Yeah, I could be fair.

               Q: And set aside whatever little bit of information you may have
               gathered before today or that you know about?

               A: Yes.

       At the conclusion of the voir dire, appellant’s counsel stated to the trial court that the

juror’s answers “satisfied me.” Appellant’s counsel then moved to strike the juror for cause,

arguing that if the juror was not struck, her friendship and “mutual acquaintances” might

“influence” her during deliberations which could “potentially affect the rest of the jurors.”

Appellant’s counsel also stated he thought the juror was sincere in her answers and she wanted



                                                 -4-
“to be fair.” He stated he was making the motion to strike the juror for cause “kind of with some

hesitancy.”

        The trial court overruled the objection, stating:

                [D]espite the [c]ourt’s recollection that she may have indicated
                some difficulty in being impartial during the general voir dire, the
                [c]ourt observed her very carefully as she answered the questions
                that were posed to her by [appellant’s counsel]. . . . The [c]ourt
                [finds] that most of her outward demeanor at least is a function of
                being nervous. She was frank about that. [S]he was open about
                her answers, did not appear to be holding back, if you will. The
                [c]ourt finds no basis to believe that she would be unable to follow
                the [c]ourt’s instructions and to put aside any notion she had or has
                indicated she had and be fair and impartial in the case.

        During the trial, a forensic pathologist testified the victim suffered a fatal gunshot wound to

his neck fired from an intermediate range. She stated intermediate range can be anywhere from

inches to two feet. Appellant did not deny shooting the victim, but he maintained he acted in

self-defense.

        After the shooting, a deputy sheriff found the victim’s body in a storage area or porch

located next to the kitchen of appellant’s house. An investigator took photographs of the crime

scene that were analyzed by a blood stain pattern analyst, Marjorie Harris. Harris testified she

views blood deposits and determines the manner in which they were distributed by analyzing the

characteristics of the deposits. She stated the source of the blood in this case was an injury to the

victim’s neck and nose. Harris viewed one of the photographs of the crime scene, and she described

it as a photograph of the threshold between the kitchen and the adjacent room. She stated both the

floor and the “divider” contained round, circular stains “which are those drip stains that are formed

through gravity and just fall straight down to the ground.” The prosecutor asked Harris whether she

had an opinion regarding where the victim was located when he sustained his injury. Harris

testified, “That blood began to flow when the injury occurred and that blood flow began at or near

the threshold of the kitchen.”
                                                  -5-
        Appellant objected to the testimony, arguing that Harris’s opinion testimony invaded the

province of the jury on the ultimate fact in issue. The trial court overruled the objection, finding that

Harris’s testimony was not an opinion on the ultimate fact in issue.

        Appellant appealed the trial court’s rulings to this Court.

                                               Analysis

        Both the Virginia and United States Constitutions protect a defendant’s right to be tried

by an impartial jury. Va. Const. art. I, § 8; U.S. Const. amend. VI. To qualify as a juror, a

venireman must “stand indifferent in the cause,” Code § 8.01-358, and any reasonable doubt

regarding her impartiality must be resolved in favor of the accused, Breeden v. Commonwealth,

217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).

        In assessing the responses of the member of the venire, the trial court must assess

“whether her answers during voir dire . . . indicate to the court something that would prevent or

substantially impair the performance of [her] duties as a juror in accordance with [the court’s]

instructions and [the juror’s] oath.” Andrews v. Commonwealth, 280 Va. 231, 256, 699 S.E.2d

237, 251 (2010) (internal quotation marks omitted) (alterations in original).

                “On appellate review, we give deference to the trial court’s
                determination whether to exclude a prospective juror, because the
                trial court was able to see and hear each member of the venire
                respond to the questions posed. Thus, the trial court is in a
                superior position to determine whether a juror’s responses during
                voir dire indicate that the juror would be prevented or impaired in
                performing the duties of a juror as required by the court’s
                instructions and the juror’s oath.”

Thomas v. Commonwealth, 279 Va. 131, 164, 688 S.E.2d 220, 238 (2010) (quoting Lovitt v.

Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 875 (2000)).

        On appeal, the decision of the trial court with regard to a particular prospective juror is

reviewed for “manifest error amounting to an abuse of discretion.” Andrews, 280 Va. at 256,

699 S.E.2d at 251.
                                                  -6-
       Appellant contends the juror’s initial response and her equivocation during voir dire

outweigh her later answers to leading questions posed to her, creating a doubt as to her

impartiality. Yet appellant’s counsel himself expressed the belief that the juror’s answers

“satisfied” him and that “she was being sincere with the [c]ourt and her wanting to be fair.”

Furthermore, the juror responded to the questions posed by appellant’s counsel that she “could

be fair” and she did not know anything “specific” about the case. She also agreed that she could

set aside what information she had concerning the case, “start fresh,” and listen to the evidence

presented by both sides. Given the juror’s responses, particularly her responses to the questions

posed by appellant’s counsel, the acknowledgements of the juror’s responses by appellant’s

counsel, and the trial court’s specific findings, we can find no manifest error amounting to an

abuse of discretion.

       Appellant also argues the trial court improperly allowed the blood spatter expert witness

to testify about the ultimate issue in the case. The ultimate issue in this case was whether

appellant committed an unlawful homicide when he shot the victim.1

       “[T]he admissibility of expert testimony is within the sound discretion of the trial court,

and that court’s decision will not be disturbed absent an abuse of discretion.” Patterson v.

Commonwealth, 3 Va. App. 1, 11, 348 S.E.2d 285, 291 (1986).

                      It is well settled in Virginia that the opinion of an expert
               witness is admissible “where ‘the jury, . . . is confronted with
               issues”’ that ‘“cannot be determined intelligently merely from the
               deductions made and inferences drawn on the basis of ordinary
               knowledge, common sense, and practical experience gained in the
               ordinary affairs of life’” and thus require ‘“scientific or specialized
               knowledge.”’




       1
        The ultimate issue of fact in a criminal case is whether the accused committed the
elements of the crime. See Nicholas v. Commonwealth, 91 Va. 741, 750, 21 S.E. 364, 367
(1895).
                                               -7-
Schooler v. Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992) (quoting

Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755-56 (1979)). See also

Dowdy v. Commonwealth, 278 Va. 577, 600, 686 S.E.2d 710, 723 (2009).

                 “[W]hile an expert witness may be permitted to express his opinion
                 relative to the existence or nonexistence of facts not within
                 common knowledge, he cannot give his opinion upon the precise
                 or ultimate fact in issue, which must be left to the jury or the court
                 trying the case without a jury for determination.”

Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992) (quoting Webb v.

Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963)).

          In Compton, the Supreme Court of Virginia held that testimony explaining blood spatter

evidence was admissible expert testimony because it was a “matter beyond the scope or

knowledge of the average juror and w[as a] matter[] within the peculiar knowledge, science and

skill of” the expert witness. Compton, 219 Va. at 727, 250 S.E.2d at 756. In addition, “every

fact, however remote or insignificant, that tends to establish a probability or improbability of a

fact in issue is admissible.” Stamper v. Commonwealth, 220 Va. 260, 269, 257 S.E.2d 808, 815

(1979).

          At trial, appellant argued the blood stain pattern analyst, Harris, should not be permitted

to testify because the jury was best suited to determine “what the blood spatter means.”

Appellant further contended it was for the jury to decide from the photographs of the crime scene

where the victim was standing when he was shot. Harris testified that, in her opinion, “blood

began to flow when the injury occurred and that blood flow began at or near the threshold of the

kitchen.” The trial court overruled appellant’s objection, stating that Harris’s opinion did not

address the ultimate issue of fact in the case.

          Appellant was charged with first-degree murder. At trial, appellant admitted he fired the

shot that killed the victim. However, he asserted he acted in self-defense. The Commonwealth


                                                  -8-
sought to establish through the blood spatter pattern analyst the approximate position of the

victim at the time the fatal shot was fired. This was an evidentiary fact useful to the jury in

deciding the ultimate fact in issue--whether appellant committed an unlawful homicide. The

mere fact that an expert witness’ opinion tends to prove the ultimate issue of fact does not

preclude an expert from testifying “‘where [the] jury, . . . is confronted with issues’ that ‘cannot

be determined intelligently merely from the deductions made and inferences drawn on the basis

of ordinary knowledge, common sense, and practical experience.’” Schooler, 14 Va. App. at

420, 417 S.E.2d at 111.

       The testimony concerning the blood spatter evidence involved a matter beyond the scope

or knowledge of the average juror and was a topic within the peculiar knowledge, science, and

skill of the expert witness. Indeed, the Supreme Court has stated that blood spatter analysis

“involves the application of principles of physics, chemistry, biology, and mathematics.” Smith

v. Commonwealth, 265 Va. 250, 252, 576 S.E.2d 465, 467 (2003). “Depending on the type of

stain and the circumstances, a number of different conclusions can be reached, such as the cause

of the stain, its point of origin, and the direction in which the blood droplets were going at

impact.” Id. The Court further noted that many jurisdictions have held that blood spatter

analysis is reliable because it is “‘clearly a well-recognized discipline, based upon the laws of

physics, which undoubtedly assist[s] the jurors in understanding what occurred.’” Id. (quoting

State v. Rodgers, 812 P.2d 1208, 1212 (Idaho 1991)).

       Therefore, Harris’s testimony was admissible as evidence useful to the jury, but it did not

violate the ultimate issue rule. The testimony tended to show, but did not conclusively prove, the

physical evidence at the scene was not consistent with appellant’s self-defense theory. Harris did

not testify that the blood spatter evidence was consistent with an unlawful homicide, the ultimate




                                                -9-
question before the jury. Accordingly, the trial court did not abuse its discretion by admitting the

expert witness’ testimony.

       For these reasons we affirm appellant’s conviction.

                                                                                         Affirmed.




                                               - 10 -
