NEWPORT NEWS — A man convicted of capital murder and robbery in Newport News more than 22 years ago, but facing the possibility of a new trial, had all pending charges against him wiped away at a court hearing Wednesday.
David W. Boyce, found guilty in the 1990 slaying of Timothy Kurt Askew, had the charges against him dropped after an outside prosecutor, Virginia Beach Commonwealth's Attorney Harvey L. Bryant, determined there wasn't enough evidence to retry the case.
Boyce, 43, has been out on bond since April, a month after a federal judge in Richmond, U.S. District Judge James R. Spencer, ruled Boyce got an unfair trial in Newport News Circuit Court in 1991, and reversed the decades-old convictions and two life sentences.
In his ruling, Spencer gave prosecutors a matter of months to either retry Boyce or "set him free."
Bryant, working with the Newport News Police Department investigators, attempted to reconstitute the case, talking with the 1991 trial witnesses and sending DNA evidence from the murder scene to a state forensics laboratory in Richmond for analysis.
Last week, however, he determined he didn't have enough.
"At this time, following an investigation, there is insufficient credible, admissible evidence to present a charge to a jury and find him guilty beyond a reasonable doubt," Bryant said at Wednesday's hearing.
The substitute judge assigned to the case, Norfolk Circuit Court Judge Mary Jane Hall, said the case is "no cause for celebration" because of Askew's death. But she also said she believes Boyce was the wrong man charged.
Hall said she is "familiar with the record in this case," and her review of the evidence and the case's record leads her to believe that "the wrong person was prosecuted in this matter" back in 1991.
"I can't give you back the last 23 years, but I can give you back the next 23 years," Hall told Boyce. "I can sign the order, and I'm doing so at this time."
"Thank you," Boyce replied.
Before signing the order, Hall asked if the case should more properly be a "dismissal" rather than a "nolle prosse." Under a nolle prosse, the charges can be brought back and the case resurrected if more evidence is found.
But one of Boyce's lawyers, Lawrence H. Woodward Jr., said Boyce and his lawyers weren't objecting to the Commonwealth's motion, and said he would leave that decision in the judge's discretion.
Hall signed the nolle prosse order. After the hearing, Woodward said it makes no difference because the charges are now gone and there is virtually no chance they will ever come back.
Walking up 26th Street after the hearing with his wife, his pastor and his attorneys, Boyce said he felt "wonderful" and relieved that the case was over after more than two decades. Sitting in prison all those years, Boyce acknowledged, he had doubts "from time to time" that this day would ever come.
But he said he was gratified by Hall's comments at the hearing.
"We are just thanking God and just celebrating His grace and mercy," Boyce said. "For somebody to acknowledge that it was the wrong person, that was a great thing, and it was an added bonus. ...That was very special for us. It's what we've been praying for, and we're just really grateful."
But Askew's family — some of whom attended the hearing on Wednesday — has believed for 22 years, and still does, that the right man was convicted.
"The judge threw us off when she said she was sorry to David Wayne Boyce for him being incarcerated for something he didn't do," Kathy Askew, the victim's younger sister, said after the hearing. "We feel differently, and God knows differently. (Boyce) will mess up again in life, and only God and him know that. The judge apologized and made it look like he was an innocent man completely, like he didn't do anything wrong."
She added: "We will always have the hurt and pain in our hearts — losing our brother the way we did and not knowing why or even understanding why he was murdered the way he was. We live with this in our hearts each and every moment of every day."
In May 1990, Timothy Kurt Askew, 35, was robbed and stabbed to death at an Econo Lodge in Oyster Point. In 1991, Boyce, then 20 years old and Askew's roommate at the Econo Lodge, was found guilty of capital murder and robbery. Jurors spared him the death penalty, and sentenced him to two life terms.
But in Spencer's March ruling, he said in part that Boyce deserves a new trial because a crucial piece of evidence in his favor — a Polaroid picture — wasn't shared with Boyce's defense lawyer. The snapshot showed Boyce with short hair when brought in for questioning the day of the crime.
The picture, a judge has ruled, could have countered the prosecution's assertion that Boyce was the suspicious "shoulder-length-haired man" that a motel clerk said was lurking around the motel that night. Instead, a police technician testified, incorrectly, that Boyce had "almost shoulder-length" hair when he was brought in.
Among the witnesses who prosecutors recently reinterviewed was jailhouse informant Herman P. Elkins. He was a key witness at the 1991 trial, testifying that Boyce confessed to the crime through the bars of his jail cell as Elkins walked back from the shower.
In 2004, Elkins called Boyce's then-attorney, Charles Haden, and told him — in a conversation Haden recorded — that Boyce had never confessed. Later, in a 2006 affidavit and in testimony at a 2010 hearing, Elkins backed off his recantation, again maintaining that Boyce confessed.
In extensive DNA testing on crime scene evidence in 2003, none of it came back as matching Boyce. The more recent DNA testing, recently concluded on some additonal items, also apparently did not lead to any determination that Boyce committed the crime.
Though Spencer overturned the conviction and sentence, the case was still active until Wednesday.
Before Hall's ruling, the original 1990 Newport News grand jury indictment against Boyce remained in effect on the capital murder and robbery charges, with a three-day jury trial scheduled to begin in mid-October.
The prosecution's time frame to make a decision on retrying the case was extended from July until October, with Boyce's attorneys agreeing to extend that window in return for Boyce being freed on bond while a decision was considered.
With Wednesday's action, the indictment against Boyce was wiped away, the pending trial was canceled, and Boyce is free from the conditions of his bond and release. Legally, it will be as if Boyce was never charged.
After the hearing, Bryant, the outside prosecutor, did not second guess the judge's comments about the wrong person being prosecuted. For Hall to make a comment like that, Bryant said, "she must have studied the evidence."
"She must have done a thorough job of looking at it," he said.
For his part, however, Bryant is not making the same assertion that Hall made. "The Commonwealth is not saying by this motion that we believe the wrong person was prosecuted," he said.
Still, Bryant also said that, based on the recent investigation, he "can't say that the evidence" leads him to believe that Boyce is guilty "beyond a reasonable doubt."
The Newport News Police Department's cold case unit is going to continue investigating the case, no matter where it leads, Bryant said. "They're not going to put this case in a file and forget about it," he said.
Charles Haden, who served as Boyce's appellate lawyer when he filed for a writ of actual innocence more than 10 years ago, attended Wednesday's hearing. He was the attorney who pushed for extensive DNA testing to be done, and first referred the case to the Mid-Atlantic Innocence Project in 2003.
"I'm floating on Cloud Nine," said Haden, who embraced Boyce before the hearing. "I felt certain that in the end, the Commonwealth was going to have to acknowledge that they didn't have any credible evidence against Boyce."
"When I think about how he spent 23 years for a crime that he never committed, the way he didn't collapse under this terrible calamity, this miscarriage of justice, and found the strength to carry on, is inspiring to me," Haden said. "He really is one of the finest persons I have ever met — how he managed to retain faith and never gave up, to believe in his innocence and having faith that God was going to hear his prayers, it really inspires me in a deep way."
Woodward told Hall at the hearing that he would be filing for an expungement to clear Boyce's record from the books.
"I'm happy for Mr. Boyce," Woodward said. He said his "heart goes out" to the Askew family. "It's got to be painful," he said. "It's not a day to celebrate." But, he added, it's also "sad that Mr. Boyce sat in jail for 23 years when he shouldn't have."
Another attorney for Boyce, Robert W. Lawrence, said it's difficult to think about the fact that if Boyce had been sentenced to death — as Newport News prosecutors originally sought in 1991 — "he would have been executed many years ago."
"I'm thrilled, absolutely thrilled," Lawrence said of Wednesday's news. "That I've played a small part in helping an innocent man, this is the best thing that has ever happened to me in my career as a lawyer."
Reporter Ashley K. Speed contributed to this story. Dujardin can be reached at 757-247-4749.Copyright © 2015, CT Now