STORY: Murder convict begins his case for new trial


On May 19, 1990, Newport News police went to the Sizzler's restaurant near Patrick Henry Mall to pick up David Wayne Boyce.

Earlier that day, Boyce's roommate, Timothy Kurt Askew, 35, was found dead, stabbed 27 times, at an Oyster Point motel room, and police wanted to see what Boyce knew.

Before letting him go home, a detective took Boyce's picture.

A few days later, Boyce was charged with capital murder and robbery. He was convicted at a jury trial a year later, spared the death penalty that prosecutors sought but getting two life sentences.

But one day in the late 1990s, Boyce — who insists on his innocence — was in prison when he suddenly remembered the picture. "I was at the law library, going through the (trial) transcripts, when I remembered it," he testified Monday.

The Polaroid picture — showing Boyce in his restaurant work clothes after being picked up at Sizzler's — displays Boyce wearing short hair.

That's counter to the testimony of a police official who testified at the trial that Boyce had long hair when he was first brought in for questioning. Her testimony dove-tailed with the word of a motel clerk who had earlier testified that a suspicious-looking man at the motel on the night of the crime had shoulder-length hair.

But the Polaroid was never shared with Boyce's trial attorney.

Instead, it surfaced in April 2008 — 17 years after the trial — when Chief Deputy City Attorney Allen L. Jackson sent it to Boyce's attorneys. It had been in the Newport News Police Department's files.

Boyce — who never testified at his original 1991 trial — took the stand in Norfolk Circuit Court Monday on the first day of a multi-day hearing on whether he should get a new trial over the contention that evidence in the case wasn't properly shared. Judge John R. Doyle III will then decide whether to grant a new trial.

At a hearing last year, Virginia Attorney General's Office lawyers contended that Boyce should have brought up at trial that his picture was taken — since he posed for it. And since he didn't bring it up then, they said, it's too late legally to raise the issue now.

But on Monday, Boyce said he did not even think about the picture at the trial.

"My mind was on other things," said Boyce, who was 20-years-old at the time. "I was scared. Things were coming in and just going out ... I didn't know how to defend myself."

The picture is one of several pieces of evidence that Boyce's attorneys — with the Washington, D.C.-based law firm Howrey, Richmond-based Hunton & Williams and Virginia Beach lawyer Lawrence H. Woodward Jr. — say were never shared with his trial attorney.

Aside from the picture, they say, that includes a memo from a prosecutor to a detective about a conversation with a relative of Askew's about another man possibly admitting to the crime. They also say it includes evidence of partial fingerprints found at the crime scene that were used to rule out another suspect — which they say could have ruled out Boyce.

Boyce's lawyers further assert that a key trial witness, jailhouse informant Herman P. Elkins, lied on the stand at the urging of police. In 2004, Elkins told Boyce's then-attorney that he lied, though he later recanted his recantation and said his trial testimony was true.

None of a significant amount of forensic evidence found at the bloody murder scene links Boyce to the crime.

Still, attorneys with the Attorney General's Office maintain the conviction is valid and should stand.

Boyce, now 39, had moved into Askew's motel room at the EconoLodge four days before the killing after arguing with his wife and moving out. The slaying didn't take place in the motel room the men were sharing, but in a separate room that Askew rented at 2:17 a.m. the morning of the crime.

The prosecution's theory is that Askew rented that room to get away from Boyce. The defense theory is that Askew, who was bisexual, had met a man at a bar and rented the second room for privacy. Boyce said that Askew had come to the room at about 2:30 a.m., grabbed beer from the fridge, said he was going to a party, and left.

On Monday, Boyce testified that after he remembered the picture of him wearing short hair, he wrote to the Newport News police evidence manager asking about the photo, but never heard back. Boyce also said he wrote to the Newport News clerk of courts trying to get evidence in his case.

He got other items back from the clerk but not the picture. "I didn't think it was there," he said.

At Monday's hearing, Thomas K. Norment Jr., who represented Boyce at his trial, said that neither Commonwealth's Attorney Howard E. Gwynn nor any other police detective or prosecutor shared the picture with him — even though Norment was purportedly given access to all key documents in the case through an open file policy.

"It's a photograph that from an evidentiary standpoint would have piqued my interest," said Norment, now a state senator. "It was one of the factual issues in dispute in the case."

Norment termed the evidence important. "I would have bird-dogged it very thoroughly," he said. "It certainly would have been a red flag to try to reconcile those discrepancies."

Norment said he also would have investigated further into the fingerprint issue and the memo about the possible confession had he known about them — which he says he didn't.

He said he "fully expected" that any key police files would also have been shared — even if it was at the police station instead of the prosecution file.

"My request was comprehensive enough to cover anything that the Commonwealth had or reasonably should have had," Norment said.

The story so far: key dates May 24, 1990: David Wayne Boyce is arrested and charged with capital murder and robbery after Timothy Kurt Askew is found dead in a Newport News EconoLodge. March 8, 1991: Circuit Court jury convicts Boyce on capital murder and robbery charges. He is days later sentenced to two life terms in prison. Aug. 16, 2001: Boyce files a motion to preserve biological evidence from the scene. Judge Robert W. Curran orders extensive testing in early 2003. March 3, 2004: Results of testing from evidence found in motel room show none of the forensics match up to Boyce. Aug. 9, 2004: Key trial witness — jailhouse informant Herman P. Elkins Jr. — tells Boyce's then-attorney, Charles E. Haden, that he lied at the behest of police. Elkins later says he told the truth at trial. Aug. 9, 2005: Howrey LLP, a law firm referred to the case by the Mid-Atlantic Innocence Project, asks for a new trial. Attorneys later assert that police and prosecutors withheld key evidence. Oct. 6, 2009: Virginia Supreme Court appoints Norfolk Circuit Court Judge John R. Doyle III to hear the petition. March 29, 2009: Multi-day evidentiary hearing begins on whether a new trial will be granted. .

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