COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Humphreys and Alston
Argued at Salem, Virginia
RONALD JEROME JONES
OPINION BY
v. Record No. 2721-07-3 JUDGE ROSSIE D. ALSTON, JR.
MAY 26, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
Sheila R. Keesee (Bruce D. Albertson; The Law Offices of Bruce D.
Albertson, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Ronald Jerome Jones (appellant) was convicted of second-degree murder, in violation of
Code § 18.2-32. On appeal, he contends that the trial court abused its discretion by allowing an
expert witness, whose opinion was based on neither her personal knowledge nor on facts in
evidence, to testify as to the victim’s cause of death. For the reasons that follow, we hold that
the trial court did not err in its finding that the opinion expressed by the expert witness was based
sufficiently upon the witness’ own observations and analyses. Therefore, we affirm appellant’s
conviction.
I. BACKGROUND
“On appeal, we construe the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Zoretic v. Commonwealth,
13 Va. App. 241, 242, 409 S.E.2d 832, 833 (1991) (citing Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975)). Viewed by that standard, the evidence demonstrates
that on August 19, 1983, Sharon Johnson was dating appellant, and lived with him in a room at
the Campbell Hotel in Harrisonburg. Phillip Pope also lived at the Campbell Hotel, and he often
socialized with appellant and Johnson.
On the evening of August 19, 1983, appellant and Pope traveled on foot to the C & E
Diner to purchase a six-pack of beer. On the way to the diner, appellant twisted his ankle. The
pair returned to the Campbell Hotel at about 7:00 p.m., where they drank the beer they had
purchased. At about 10:00 p.m., appellant asked Pope to borrow five dollars from Pope’s father
to pay for a cab to take appellant to the hospital. Pope returned approximately one hour later,
and gave the money to appellant.
Appellant called a cab, but when it arrived at about midnight, appellant could not find the
money. Appellant told the cab driver to leave, because appellant did not have money for the
fare. Appellant returned to the hotel room that he shared with Johnson. There, he blamed
Johnson for the loss of the money, and the couple began to argue. Even after the money was
found, appellant and Johnson continued their dispute. Eventually, the verbal altercation became
physical. Pope saw appellant strike Johnson five or six times on her face and head with an open
hand and five or six times with a closed fist. Johnson did not defend herself or fight back. When
Johnson’s head slumped forward, appellant said, “It’s time to go to sleep, bitch.” Then,
appellant struck Johnson in the back with his elbow, causing her to drop to the ground.
Appellant proceeded to kick Johnson with force in the face, head, and upper body as many as ten
times. During the assault, Johnson attempted to crawl away and begged Pope, who stood in the
doorway of the hotel room, to help her.
Pope ran from the room and told Penny Martinez, who was sitting on the hotel’s porch,
that appellant was beating Johnson. He asked Martinez to help Johnson and returned to the
vicinity of appellant’s hotel room. Appellant was looking out the window, and upon seeing
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Pope, asked him why he was “telling [his] business” and chased Pope away with a knife. Pope
ran to a nearby convenience store and asked the clerk to call for emergency assistance.
As Martinez was headed down the fire escape of the hotel to get help, she saw appellant
slapping Johnson with an open hand and pulling Johnson by the arm to prevent her from leaving
the room. Martinez looked away, and when she looked back, Johnson was lying on the ground.
At this point, appellant was kicking Johnson in the head, with an amount of force comparable to
how “you would kick . . . a football.” Then, appellant approached Martinez, grabbed her arm,
and told her “not to do anything because if [she] did [she] would regret it.” The last time
Martinez saw Johnson, Johnson had blood coming out of her ears and was begging appellant to
stop beating her.
At about 7:00 a.m. the following day, paramedics arrived at the room shared by Johnson
and appellant. Johnson was taken to the hospital. Karen Thomas, Johnson’s sister, testified that
she saw Johnson at the University of Virginia Hospital on August 20, 1983. Thomas further
testified that Johnson, who was in a coma, was nearly unrecognizable given the degree of
swelling and bruising on her face. Johnson died on August 27, 1983.
Dr. Marcella Fierro, who at the time of the trial was the Deputy Chief Medical Examiner
for the Central District of Virginia, qualified as an expert forensic pathologist in the August 2007
trial. 1 She offered her opinion regarding Johnson’s cause of death. During direct examination,
Dr. Fierro stated that her opinion was based upon her personal examination of Johnson’s body
during the autopsy. Dr. Fierro stated that Johnson had two blackened eyes, which were
indicative of a head injury. Additionally, a contusion of five inches by six inches on Johnson’s
skull and a three-inch by three-inch bruise on Johnson’s scalp near the larger contusion also
1
Although an initial suspect in the matter, it bears noting that twenty-four years passed
between Johnson’s death and the 2007 trial of appellant. Appellant was arrested in March 2007
in Greensboro, North Carolina, where he was living under an assumed name.
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indicated an acute head injury. The autopsy revealed Johnson had subdural and epidural
hematomas, as well as actual bruises on the brain. Finally, Johnson suffered from a blood clot
that caused her brain to shift in her skull, causing necrosis or cell death in the brain structures
that control respiration. Dr. Fierro testified that the necrosis was sufficient to cause “profound
coma” or death.
Dr. Fierro testified that Johnson’s death had resulted specifically from bronchial
pneumonia or aspiration pneumonia, which developed as a complication of the head injury. The
damage to Johnson’s brain damaged her gag reflex, which allowed secretions to accumulate in
her airway. These secretions, combined with her impaired breathing, created physical conditions
in which the pneumonia developed. Dr. Fierro testified, “The injury that set this whole lethal
train of events in motion was the injury to her head. She would have no pneumonia without the
head injury.”
Dr. Fierro also testified that Johnson had four contusions on her back and marks on her
neck, which suggested that she had been manually choked. Dr. Fierro found no defensive
wounds on Johnson’s body. Dr. Fierro did note that Johnson’s body showed additional marks,
which she described as “injuries that occurred after hospitalization,” caused when the hospital
staff treated her. Dr. Fierro stated that Johnson had an incision on her chest where a tube had
been inserted to drain pus from her chest. Dr. Fierro also identified indications that Johnson had
undergone brain surgery. She pointed to the operative site and showed “where the doctors went
in and did surgery and the tissue bled.” Dr. Fierro further indicated the location of a pressure
screw in Johnson’s skull, and stated that its presence indicated Johnson’s brain was swollen.
Dr. Fierro testified that none of the injuries to Johnson’s brain were suggestive of an epileptic
seizure, as alleged by appellant.
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Throughout the direct examination of Dr. Fierro, appellant objected to her testimony on
the grounds that a proper foundation had not been laid, alleging that her testimony was not based
on facts in evidence or elicited in response to a hypothetical question. On cross-examination,
Dr. Fierro admitted that in conducting the autopsy, she relied, in part, on University of Virginia
medical records that were not admitted into evidence. Specifically, Dr. Fierro stated that she had
relied on the medical records during the autopsy to determine the time that Johnson arrived at the
hospital, as well as her condition at her time of arrival. However, Dr. Fierro stated that she could
have determined Johnson’s cause of death by relying solely on facts in evidence. She stated, “If
I saw this lady without any record whatsoever I would know she was a beating.” Further, based
on her personal observations, both with the naked eye and under the microscope, Dr. Fierro
testified that she was able to determine Johnson’s brain was necrotic prior to her death and that
Johnson developed pneumonia due to the brain injury.
Dr. Fierro stated that she could determine approximately when the pneumonia developed
without the aid of the medical records not in evidence. She explained that an examination of the
lung cells revealed that the lung injury was “not older than days,” for there were no chronic
inflammatory cells, which would have been present had the pneumonia been older than seven
days. During cross-examination, Dr. Fierro stated that she would have said the pneumonia was
several days old based on a microscopic examination of the cells alone; however, she did admit
to having access to the medical record, which gave her the same information.
After the Commonwealth presented its evidence to the jury, appellant moved to strike
Dr. Fierro’s testimony on the ground that she relied on facts not in evidence in reaching her
opinion as to the cause of Johnson’s death. The trial court overruled the motion. At the
conclusion of the evidence, appellant renewed his motion to strike. The trial court overruled the
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motion to strike the evidence, and the matter was submitted to the jury. The jury convicted
appellant of second-degree murder.
This appeal followed.
II. ANALYSIS
On appeal, appellant contends the trial court abused its discretion by allowing
Dr. Fierro’s opinion testimony. To support that contention, appellant claims Dr. Fierro rendered
her opinion without personal knowledge and also relied upon facts not introduced into evidence.
We disagree and find that the trial court did not abuse its discretion.
“A court’s admission of expert testimony is a matter committed to the sound discretion of
the trial judge, and we generally will disturb a decision of this nature only when the court has
abused its discretion.” Commonwealth v. Miller, 273 Va. 540, 549, 643 S.E.2d 208, 213 (2007)
(citing Atkins v. Commonwealth, 272 Va. 144, 153, 631 S.E.2d 93, 97 (2006); Tarmac
Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995)). In
Virginia criminal cases, an ‘“expert may give an opinion based upon his own knowledge of facts
disclosed in his testimony or he may give an opinion based upon facts in evidence assumed in a
hypothetical question.’” Simpson v. Commonwealth, 227 Va. 557, 565, 318 S.E.2d 386, 391
(1984) (quoting Walrod v. Matthews, 210 Va. 382, 388, 171 S.E.2d 180, 185 (1969)). See also
Virginia Ry. Co. v. Andrews, 118 Va. 482, 489-90, 87 S.E. 577, 580 (1916). “Generally, an
expert witness in Virginia has not been permitted to base his opinion on facts not in evidence.”
Simpson, 227 Va. at 565, 318 S.E.2d at 391 (citing Ortiz v. Barrett, 222 Va. 118, 130, 278
S.E.2d 833, 839 (1981); Meade v. Belcher, 212 Va. 796, 801, 188 S.E.2d 211, 214 (1972)).
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Our Supreme Court has previously considered the admissibility of expert opinions in
criminal cases in Simpson. 2 In that case, the Commonwealth offered an assistant medical
examiner’s opinion testimony as to the victim’s cause of death. Id. at 565, 318 S.E.2d at 391.
Over Simpson’s objection, the trial court permitted the testimony even though the medical
examiner partially relied upon hospital records not admitted into evidence. Id. On appeal, the
Court affirmed the trial court’s judgment. Id. at 568, 318 S.E.2d at 393. In doing so, the Court
found evidence in the record that independently supported the medical examiner’s opinion
without the medical examiner making reference to the hospital records. Id. at 566, 318 S.E.2d at
392. Specifically, the Court considered the medical examiner’s personal observations of the
victim’s body during the autopsy, the medical examiner’s experience and training, and the
exhibits in evidence as sufficient bases for his opinion that the defendant’s assault of the victim
caused the victim’s death. Id. Thus, the Court concluded that the record contained “sufficient
factual basis for the admission of [the medical examiner’s] opinion without reference to the
hospital records.” Id. at 566, 318 S.E.2d at 391-92.
2
In that case, the Virginia Supreme Court explicitly rejected expanding the ability of
expert witnesses to testify to facts not admitted into evidence:
The Commonwealth, however, urges us to adopt, in substance, the
view of the Federal Rules of Evidence, which would permit an
expert to base his opinion on facts made known or perceived by
him at or before trial, whether admissible in themselves or not,
provided they are facts of a type normally relied on by other
experts in the field. See Fed. R. Evid. 703 and 705.
We are unwilling to accept this invitation. The General
Assembly, in 1982, enacted Code § 8.01-401.1 which essentially
adopts the foregoing provisions of the Federal Rules of Evidence.
That statute’s application is expressly limited to any civil action.
We regard this limitation as a clear expression of legislative intent
to retain the historic restrictions upon expert testimony in criminal
cases in Virginia.
Simpson, 227 Va. at 566, 318 S.E.2d at 391.
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The analysis in Simpson applies herein. Critical to the Court’s determination herein are
the particular facts presented in the trial court. In this case, the evidence established that
Dr. Fierro conducted an autopsy on Johnson’s body shortly after her death. Based on her
personal examination of Johnson’s body, she was able to determine that Johnson had suffered an
acute head injury that severely damaged the structures in her brain that regulated respiration and
the gag reflex. This opinion was based both on her examination of the brain with her naked eye,
as well as an examination of brain cells under a microscope. Dr. Fierro concluded that Johnson’s
death resulted from pneumonia, an opinion supported by her examination of Johnson’s lung
cells, which revealed the presence of the pneumonia, as well the age of the pneumonia.
Dr. Fierro’s training and experience supported the conclusion that the pneumonia was caused by
the head injury. Thus, notwithstanding Dr. Fierro’s familiarity with the medical records that
were not admitted into evidence, Dr. Fierro’s expert opinion contained a sufficient factual basis
for the admission of her opinion without reference to the hospital records.
To be clear, our conclusion in this case follows the rule articulated in Simpson, that is, an
expert witness in a criminal trial may only testify to those facts within his personal knowledge
and may not be permitted to base his opinion on facts not in evidence. Had Dr. Fierro’s personal
observations during the autopsy not constituted a sufficient basis for her to render an opinion as
to the cause of Johnson’s death, Dr. Fierro’s testimony would not have been admissible.
Essentially, the personal observations Dr. Fierro obtained during the autopsy cured any alleged
inappropriate evidentiary considerations and overcame any suggestion that she partially relied
upon hospital records not admitted into evidence.
The record shows that Dr. Fierro’s opinions were supported by her own observations and
examinations of Johnson’s body that were entirely unrelated to the medical records. Indeed,
Dr. Fierro had sufficient personal knowledge, experience, and training to support her expert
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opinion that Johnson’s death resulted from the pneumonia, which was directly related to her head
injury. Accordingly, we cannot say the trial court abused its discretion in allowing Dr. Fierro’s
opinion testimony as to the cause of Johnson’s death.
III. CONCLUSION
For these reasons, we affirm appellant’s conviction.
Affirmed.
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