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Date: 06-30-2021

Case Style:

Lemar Jason McDaniel, Jr v. Commonwealth of Virginia

Case Number: 0153202

Judge: MARLA GRAFF DECKER

Court: COURT OF APPEALS OF VIRGINIA

Plaintiff's Attorney: A. Anne Lloyd, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief),

Defendant's Attorney:


Richmond, Virginia Criminal Defense Lawyer Directory


Description:

Richmond, Virginia - Criminal defense attorney represented defendant charged with a second-degree murder, use of a firearm in commission of a felony, and concealment of a body.



This case arises from the death of Devin Harrison. She and the appellant were involved
in a romantic relationship for about four months, and he lived with her for a time at her home.
1
In accordance with familiar principles of appellate review, the facts are recited in the
light most favorable to the Commonwealth, as the prevailing party at trial. Lambert v.
Commonwealth, 298 Va. 510, 512 (2020).
PUBLISHED- 2 -
Harrison was last seen alive on July 30, 2018. On that day, the victim and the appellant
went to a store together around 11:00 a.m.2
During lunchtime, Harrison’s next-door neighbor
heard Harrison arguing from inside her home. She heard only Harrison’s voice and did not hear
the voice of the person with whom she argued. Later that same afternoon, a different neighbor
saw the appellant in the street by the victim’s car. He was “messing with” clothes in the back of
the vehicle.
That same day, when Harrison went missing, her mother received a text from her mobile
phone number indicating that she and the appellant had ended their relationship. The victim’s
mother expected Harrison to come by her house that day, but Harrison never did. Her mother
sent Harrison text messages repeatedly throughout the next day, July 31, 2018, but received no
response. Harrison’s father called the police and reported her missing.
On the afternoon of July 31, 2018, Harrison’s parents went to her home to check on her
welfare. While they were there, the appellant met them outside the house. The victim’s father
forced open the back door and let the mother and the appellant inside. Chairs in the dining room
had been overturned, the house was “tor[n] up,” and there was a mop and a bucket in the
hallway. The house smelled of bleach or a cleaning solvent. Despite the apparent attempt at
cleaning, some blood was still in the house, including a large amount of Harrison’s blood on her
mattress. Harrison was nowhere in the house. Her car was also missing, and her trash can was
gone from the back of the house.
Harrison’s father described the appellant’s demeanor as “nonchalant” while they searched
the house for her. During the search, the father threatened to kill the appellant if he had harmed
Harrison, but the appellant denied any wrongdoing. After that conversation, the appellant
entered Harrison’s bedroom crying. He encountered her mother there and stopped crying after
2 Their images were captured on store security video footage and admitted into evidence. - 3 -
she asked why he would be crying if he had not done anything wrong. At around 3:00 p.m.,
Harrison’s parents drove the appellant to the police station for an appointment and left him there.
After parting ways with the appellant, Harrison’s mother received multiple text messages
from Harrison’s phone number. The first stated only “Mom,” and the second was “I need your
help.” That evening, she received another text from Harrison’s phone number stating that she
had cut herself badly, a man had helped her, and that he had driven her to Pittsburgh. Later text
messages indicated that Harrison was somewhere in Petersburg but, according to the text,
Harrison did not know precisely where she was and needed help. Harrison’s mother found this
message “unusual” because Harrison was familiar with Petersburg from formerly living there.
Previously, the victim and her mother had established a code of texting the word “brown” in case
of trouble, and the victim had used the signal with her mother before. However, none of the July
31, 2018 texts purportedly from Harrison included the word “brown,” suggesting that she was
not actually the person sending them.
Later that same day, the police found Harrison’s dead body in her back alley in a trash
can a few houses from her residence. A garbage bag found beneath the body contained
documents related to court proceedings involving the appellant. The documents included an
arrest warrant for damaging Harrison’s car window, an arrest warrant for assault and battery of
Harrison, a protective order for Harrison against the appellant, the appellant’s recognizance bond
order for him to appear for a July 31, 2018 hearing, and a subpoena for Harrison to appear in
court as a witness in the appellant’s assault and battery case.
That same night, the police went to the appellant’s home. The appellant showed the
officers around the house. In an upstairs bedroom, the police noticed a pair of white tennis shoes
with what appeared to be blood on them. At this time, the appellant denied knowing that - 4 -
Harrison was missing. He told the police that he had not seen her in four days.3
The appellant
also said that he had spoken with the victim online four days prior and she threatened to harm
herself.
At trial, the Commonwealth introduced Angie Witt, a special agent with the Virginia
Department of State Police, as an expert witness. Witt, employed by the state police since 1993,
testified to her training in the field of blood spatter analysis and prior instances in which she had
qualified to testify as an expert witness in that field. Witt based her conclusions in this case on
her examination of photographs taken by a crime scene technician. The appellant made a motion
to exclude Witt’s testimony. The trial court found that Special Agent Witt qualified as an expert
in the field of blood spatter based upon her education, training, and experience. The court
further concluded that the subject matter was beyond the knowledge and experience of an
ordinary person such that expert testimony was appropriate. Witt gave three opinions based on
the evidence. First, she concluded that the blood on the appellant’s shoe had dropped from a
nearly ninety-degree angle above it based on the round shape of the bloodstain. Second, Witt
opined that the mattress had a saturation stain from a large amount of blood. Third, she
explained that the blood in the car was “transfer[red],” meaning that something with blood on it
came into contact with the vehicle.
The Commonwealth introduced evidence that DNA testing of the blood on one of the
shoes and on the mattress indicated that it was Harrison’s blood on both items. In addition, it
presented testimony that the appellant could not be eliminated as a contributor from the DNA
collected from underneath the victim’s fingernails.
3 This statement was clearly contradicted by the store security footage of them together
the morning of Harrison’s disappearance.- 5 -
On the day that the victim’s body was found, when speaking with the appellant, Detective
James Higgins of the City of Richmond Police Department noticed scratches on his body. At a
later police interview, the appellant denied killing Harrison and suggested that the blood got on
his shoe when he walked through her house with her parents. He also claimed that the last time
he had spoken with the victim was about a week prior to her death. At the time of Harrison’s
death, the appellant was under court order to avoid all contact with her.
The Commonwealth’s theory of the case was that the appellant killed Harrison so she
could not testify against him in court the following day. The prosecutor argued that the blood
dripped on the appellant’s shoe as he moved the body.
The jury convicted the appellant of second-degree murder, use of a firearm in the
commission of a felony, and concealment of a body, in violation of Code §§ 18.2-32, -53.1,
and -323.02. The trial court imposed the jury’s sentence of forty-four years in prison.
II. ANALYSIS
The appellant argues that the trial court abused its discretion by permitting Special Agent
Witt to testify as an expert witness on blood spatter evidence. He sets forth two assignments of
error that relate to three arguments. First, he contends that Witt was not qualified to testify as an
expert in blood spatter. Second, he argues that the Commonwealth failed to establish that she
had an adequate background to render an opinion based on photographs. Third, he suggests that
the foundation for her analysis was based in part on facts not in evidence.
“The admission of expert testimony is committed to the sound discretion of the trial
judge,” and the appellate court will not reverse that court’s decision unless it “has abused its
discretion.” Brown v. Corbin, 244 Va. 528, 531 (1992); see Wakeman v. Commonwealth, 69
Va. App. 528, 535 (2018), aff’d, 298 Va. 412 (2020). This “deferential standard” means that “a
‘trial judge’s ruling will not be reversed simply because an appellate court disagrees.’” Campos - 6 -
v. Commonwealth, 67 Va. App. 690, 702 (2017) (quoting Thomas v. Commonwealth, 44
Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005)). Only in those cases in
which “reasonable jurists could not differ” does the record support the conclusion that an abuse
of discretion occurred. Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Grattan v.
Commonwealth, 278 Va. 602, 620 (2009)). “This bell-shaped curve of reasonability governing
our appellate review rests on the venerable belief that the judge closest to the contest is the judge
best able to discern where the equities lie.” Id. (quoting Sauder v. Ferguson, 289 Va. 449, 459
(2015)).
A. Expert Qualifications
The appellant argues that Special Agent Witt did not have the necessary background to
qualify as an expert in blood spatter analysis. He relies in part on the expert qualifications
described in the National Research Council’s publication Strengthening Forensic Science in the
United States: A Path Forward (2009) [hereinafter SFSUS].
The law in Virginia is clear regarding what is required to admit expert testimony. To
present expert testimony in a criminal proceeding, the witness must be “qualified as an expert by
knowledge, skill, experience, training, or education.” Va. R. Evid. 2:702(a)(i)-(ii). To qualify as
an expert, a witness “needs only to have a degree of knowledge of a subject matter beyond that
of persons of common intelligence and ordinary experience so that the witness’ opinion will have
value in assisting the trier of fact in understanding the evidence or determining a fact in issue.”
Kilby v. Commonwealth, 52 Va. App. 397, 410 (2008) (quoting Conley v. Commonwealth, 273
Va. 554, 560 (2007)); see also Va. R. Evid. 2:702(a)(ii). “An expert witness may acquire the
requisite knowledge of a subject matter through experience and observation in a variety of ways,
including participation in a vocation, without formal training or education.” Kilby, 52 Va. App.
at 410 (quoting Conley, 273 Va. at 560). This Court will not reverse a trial court’s decision to - 7 -
admit testimony of an expert “unless it plainly appears that the witness was not qualified.” Id.
(quoting Conley, 273 Va. at 560).
The Commonwealth presented Special Agent Witt’s qualifications when introducing her
as an expert witness. She testified that she was a special agent assigned to the Bureau of
Criminal Investigation with the Virginia State Police. Witt attended the Virginia Forensic
Science Academy, where she received some general training in analyzing blood spatter. After
graduation, she received more than forty additional hours of training to become blood spatter
certified. Witt also attended three more blood spatter training courses, including an advanced
course where photographs were used. At one of those courses, she helped train new examiners,
and she was an assistant instructor at another. Her training included an advanced “blood fabric
course.” Over the duration of her career, Witt had consulted more than 200 times on blood
spatter evidence. She had qualified as a blood spatter expert in court on three prior occasions
and had never been rejected as an expert. As for her formal education, Witt obtained a Bachelor
of Science in Health Education and a Master of Science.
Blood spatter analysis “involves the application of principles of physics, chemistry,
biology, and mathematics.” Smith v. Commonwealth, 265 Va. 250, 252 (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 analysis is “clearly a well recognized discipline, based upon the laws
of physics, which undoubtedly assist[s] the jurors in understanding what occurred.” Id.
(alteration in original) (quoting State v. Rodgers, 812 P.2d 1208, 1212 (Idaho 1991)).
The record makes clear that Special Agent Witt possessed “a degree of knowledge of
[the] subject matter” of blood spatter evidence “beyond that of persons of common intelligence
and ordinary experience.” See Justiss v. Commonwealth, 61 Va. App. 261, 271 (2012) (quoting- 8 -
Conley, 273 Va. at 560). She gained this knowledge through specialized training and vocational
experience. Cf. Stevens v. Commonwealth, 72 Va. App. 546, 556 (2020) (affirming the
admission of expert testimony on the subjects of child abuse and disclosure). Consequently, the
trial court acted within its discretion in ruling that Witt was qualified to testify as an expert in
blood spatter evidence.
Despite Virginia standards, the appellant argues based on the SFSUS guidelines for the
qualification of experts that Witt was not in fact qualified to testify as an expert in blood spatter.
The SFSUS report provides that appropriate blood spatter analysis at a minimum requires certain
knowledge, such as “an understanding of the physics of fluid transfer” and “pathology of
wounds.” SFSUS, supra, at 177. It also emphasizes the importance of formal education in
addition to experience, specifying that such an expert should have “an appropriate scientific
education.” Id. at 177-78.
During voir dire, the appellant asked Witt about each of the qualifications recommended
by the report. See id. at 177. She averred that she met those qualifications. Witt agreed that an
analyst should have an “appropriate scientific education” and cited her health education degree
as her scientific education, stating that she took advanced biology courses. Witt also explained
that her conclusions in this case were not difficult and suggested that they could not be wrong.
The trial court had Witt’s testimony about her qualifications before it and was aware of
the appellant’s position that Witt did not meet all of the qualifications set forth in the SFSUS for
blood spatter analysts. However, the record does not compel the appellant’s suggested
conclusion that Witt was not qualified under the SFSUS guidelines to render a conclusion based
on her blood spatter analysis. To the contrary, she testified that she met the qualifications listed
in the report. To the extent that the appellant disagrees with Witt’s assessment of whether her
educational background constitutes an “appropriate scientific education,” that was a factor for - 9 -
the trial court’s consideration in determining whether Witt was qualified as an expert under the
Virginia Rules of Evidence. See Va. R. Evid. 2:702(a)(i)-(ii).
At trial, the appellant cited the SFSUS report to support the proposition that Witt did not
have knowledge beyond that of a common layperson because she did not have the requisite
formal qualifications. However, the SFSUS merely sets forth guidelines and does not purport to
provide qualifications necessary for a witness to testify as an expert in a trial in any jurisdiction.
SFSUS, supra, at xix-xx. More importantly, in Virginia, to qualify as an expert, a witness can
gain specialized knowledge “beyond that of persons of common intelligence and ordinary
experience . . . through experience and observation in a variety of ways, including participation
in a vocation, without formal training or education.” Kilby, 52 Va. App. at 410 (quoting Conley,
273 Va. at 560).
The report cited by the appellant was before the trial court during its consideration of
Witt’s qualifications to testify as an expert. Her qualifications included academic degrees in
science. Virginia law allows an expert to gain expertise solely through vocational training,
which Witt also clearly had. For these reasons, the trial court did not err in determining that Witt
was qualified to testify as a blood spatter expert.
B. Scope of Expertise to Provide an Opinion Based on Photographs
The appellant contends that Special Agent Witt’s testimony exceeded her expertise
because she reviewed photographs and did not go to the crime scene even though she
acknowledged that it was “always helpful . . . to go to the scene.” The appellant cites CNH
America v. Smith, 281 Va. 60, 68 (2011), for the proposition that the trial court erroneously
allowed Witt to testify on matters beyond her area of expertise because she was not qualified to
draw conclusions based on photographs. This challenge to the evidence encompasses all of
Witt’s expert opinion testimony. - 10 -
“An expert’s qualifications must correlate to the opinions for which the expert
[testimony] is being offered.” CNH, 281 Va. at 68. In that vein, “[t]he fact that a person is a
qualified expert in one field does not make him an expert in another field, even if they are
closely related.” Id. That is not what happened here.
Witt explained that of the more-than-200 times she had consulted on blood spatter
evidence, on 95% of those occasions she looked only at photographs. She explained that she had
eighty hours of “photography experience and training.” Special Agent Witt had received training
from the Department of Forensic Science specifically on photography and interpreting whether
photographs had been distorted in any way. Again, the record supports the conclusion that Witt
possessed “a degree of knowledge of [the] subject matter” of basing blood spatter opinion on
photographs “beyond that of persons of common intelligence and ordinary experience.” See
Wakeman, 69 Va. App. at 536 (alteration in original) (quoting Justiss, 61 Va. App. at 271).
Witt’s opinion testimony was limited to the conclusions that the blood on the appellant’s shoe
had dropped from a nearly ninety-degree angle, that the mattress had a saturation blood stain,
and that the blood stains in the car were “transfer stains.” The fact that she reached these
conclusions after reviewing photographs and did not go to the crime scene at most goes to the
weight of her testimony rather than its admissibility. See generally Church v. Commonwealth,
71 Va. App. 107, 122-23 (2019) (holding that “[o]nce [the] threshold for proving admissibility
has been met, any gaps in the evidence are relevant to the trier of fact’s assessment of its weight
rather than its admissibility”). Accordingly, the trial court acted within its discretion by
admitting Witt’s expert opinion testimony.
C. Foundation Based on Hearsay
The appellant suggests the trial court erred by admitting Witt’s testimony regarding the
shoe because she based her opinion on hearsay not in evidence. He specifically addresses only - 11 -
her conclusion that the blood dripped onto his shoe from a ninety-degree angle, describing it as
the “crucial portion” of her testimony. The Commonwealth argues that this assignment of error
is procedurally barred because the appellant failed to obtain a ruling from the trial court on this
argument.
1. Rule 5A:18
It is the appellant’s burden “to obtain a clear ruling from the trial court” on an issue he
wishes to raise on appeal. See Young v. Commonwealth, 70 Va. App. 646, 657 (2019). This
burden stems from the requirement that a litigant state an objection “with reasonable certainty at
the time of the ruling.” See Rule 5A:18. The primary reason for “requiring timely specific
objections is to afford the trial court an opportunity to rule intelligently on the issues presented,
thus avoiding unnecessary appeals and reversals.” Williams v. Commonwealth, 57 Va. App.
341, 347 (2010); see Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (“Specificity and
timeliness undergird the contemporaneous-objection rule . . . .”).
At trial, the appellant argued that Witt’s forensic background did not qualify her to testify
as an expert in the specialized field of blood spatter. He also contended that the opinion was
impermissibly based in part on her out-of-court conversations about the photographs. The court
overruled the objection, specifically addressing the first prong of the objection by expressly
concluding that Witt was qualified to testify as an expert. It did not give any reasons regarding
the second prong of the objection, commenting only that “there’s a foundationary aspect to this
too.”
The trial court clearly overruled the appellant’s objection and allowed Witt to testify,
even though it did not give its reasons for rejecting his foundation argument. See Findlay v.
Commonwealth, 287 Va. 111, 116 (2014) (noting that trial judges do not always give reasons for
their rulings). We conclude that the issue is adequately preserved for appellate review.- 12 -
2. Merits
The appellant argues that the trial court erred by admitting Witt’s testimony because she
based her opinion in part on a conversation not in evidence, specifically that the “photographs she
relied upon had been taken before the evidence was altered.” He reasons that therefore Witt’s
blood spatter opinion lacked a proper foundation.
“Determining whether an adequate foundation has been laid for the admission of an
expert opinion is an exercise of the trial court’s discretion, to be made in light of all the
testimony produced.” Smith, 265 Va. at 254. Testimony “lack[s] a proper foundation” if an
expert has based her opinion on facts not in evidence. Sanders v. Commonwealth, 282 Va. 154,
159 n.1 (2011). “Generally, an expert witness in Virginia has not been permitted to base [her]
opinion on facts not in evidence.” Simpson v. Commonwealth, 227 Va. 557, 565 (1984).
Instead, “an ‘expert may give an opinion based upon [her] own knowledge of facts disclosed in
[her] testimony or [she] may give an opinion based upon facts in evidence assumed in a
hypothetical question.’” Id. (quoting Walrod v. Matthews, 210 Va. 382, 388 (1969)).
Special Agent Witt testified that she referenced several materials when conducting her
analysis, including photographs, certificates of analysis, and the autopsy report.4 However, when
Witt explained her conclusion to the jury, she specifically relied on a single photograph. That
photograph, a close-up shot of the blood stain on one of the appellant’s tennis shoes, had been
admitted into evidence without objection. Witt explained that she consulted with the
Commonwealth’s attorney “to discuss any changes that may have occurred” to the photographed
items. Witt described the stain on the shoe as round and stated that such a stain results from the
blood falling onto the surface at approximately a ninety-degree angle.
4 Witt testified that she “was told” that the shoes had been altered by the Department of
Forensic Sciences for purposes of DNA testing. As a result, she drew her conclusions based on
the photographs of the shoes taken contemporaneously by a crime scene technician. - 13 -
The appellant does not challenge the principle that an expert is permitted to testify to an
opinion derived from exhibits in evidence. See generally Simpson, 227 Va. at 566. Instead, he
suggests that the particular photograph here was not a sufficient basis from which to form an
expert opinion because Witt relied on her out-of-court conversation with the Commonwealth’s
attorney in evaluating the photograph and the photographer did not testify as to when or where
he took it. Special Agent Witt’s conversation with the Commonwealth’s attorney does not affect
the admissibility of her opinion because, in testifying, she did not base her opinion on that
conversation but instead on the photograph that was in evidence. The questions about the
accuracy of the photograph that the appellant raises were proper considerations at the time that it
was introduced into evidence, not at the time the expert was testifying using the photo.
5
See Va.
R. Evid. 2:901 (“The requirement of authentication or identification is a condition precedent to
admissibility that is satisfied by evidence sufficient to support a finding that the thing in question
is what its proponent claims.”). “Once the threshold for proving admissibility” was met, these
questions concerning the photograph’s accuracy were relevant only to the jury’s assessment of
the weight to give it. See Church, 71 Va. App. at 122; see also Reedy v. Commonwealth, 9
Va. App. 386, 391 (1990) (“Where there is mere speculation that contamination or tampering
could have occurred, it is not an abuse of discretion to admit the evidence and let what doubt
there may be go to the weight to be given the evidence.”).
5 Detective John Flores with the City of Richmond Police Department authenticated the
shoe photograph that Witt relied on in her testimony. He explained that he took the photograph
of the shoe. Detective Steven Jones, also of the Richmond Police Department, testified that he
found the pair of shoes in the appellant’s bedroom. Jones identified the shoes as looking
substantially the same in the courtroom as they did when he found them except for an
identification tag. Kenna Heise, a forensic scientist at the Virginia Department of Forensic
Science, analyzed the blood found on one of the shoes. Heise stated that the photograph in
question depicted a close-up of the stain she tested. - 14 -
In addition, the appellant speculates that possible alterations to the shoe after the blood
got on it but before the photograph was taken could have misinformed Witt’s conclusion that the
blood dripped onto the shoe from a ninety-degree angle. Again, once the photograph was
admitted into evidence, any alleged deficiencies in the evidence were relevant to the jury’s
assessment of how much weight to assign it. See Smith, 265 Va. at 255; Church, 71 Va. App. at
122.
The appellant had the opportunity to raise the same questions that he does now
regarding the condition of the shoe as depicted in the photograph that Witt relied on in her
testimony. However, he did not make those arguments to the jury. With the photograph on
which Witt based her opinion in evidence, the jury had the opportunity to evaluate that
photograph and, by extension, the basis of Witt’s opinion. Witt based her opinion testimony
regarding the drip on the shoe only on the photograph in evidence. In contrast, her out-of-court
conversation with the Commonwealth’s attorney served as mere background information.
Consequently, the trial court acted within its discretion by concluding that the Commonwealth
laid an adequate foundation for Witt’s expert opinion regarding the blood on the shoe.
For these reasons, the appellant’s assignments of error fail on the merits

Outcome: On this record, the trial court acted within its discretion in ruling that Witt was qualified to testify as an expert in blood spatter evidence and give her opinion based on a photograph in evidence. Consequently, the trial court did not abuse its discretion by admitting Witt’s expert testimony on blood spatter, and we affirm the convictions.

Affirmed

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