Stressed from a murder trial and the possible death sentence he faced, David Wayne Boyce simply did not remember the Polaroid picture that a police detective took of him when he was first brought in for questioning on the day his roommate was killed in May 1990, his attorney said.
"He was a barely 20-year-old kid," said Eduardo Ferrer, a lawyer with the Washington, D.C., firm Howrey LLP. ""The Polaroid was a brief snapshot in a … nightmare that could have resulted in his death."
Ferrer made that statement in Newport News Circuit Court Tuesday to counter the assertion from Senior Assistant Attorney General Donald Jeffrey that it was incumbent on Boyce to remember the picture — and tell his trial attorney about it — before or during the trial.
Boyce, convicted in 1991 in the May 1990 stabbing death of his roommate, Timothy Kurt Askew, 35, at an Oyster Point EconoLodge, is now serving two life terms. A quest for a new trial that began in 2005 had its final arguments — at least at the Circuit Court level — on Tuesday.
Boyce's lawyers contend that key evidence in Boyce's favor, including the Polaroid, was never shared with his trial attorney, now state Sen. Thomas K. Norment Jr. The picture only came to light in 2008, 18 years after the crime.
"This Polaroid is absolutely material," Ferrer said. In light of a lack of forensics in the case, he said, "there can be no confidence whatsoever" in a jury verdict that was rendered "without taking into account this Polaroid."
Boyce's lawyers say that the picture — showing Boyce with short to medium-length hair when he came in for questioning — could have refuted trial testimony from a police technician, Patti Montgomery, who told jurors that Boyce had "almost shoulder length" hair when he came in.
Her statement, which Commonwealth's Attorney Howard Gwynn highlighted during his closing argument to the jury, coincided with the prior testimony of a hotel clerk who described a suspicious looking man near the hotel as having "shoulder length hair."
Aside from the Polaroid, Boyce's lawyers that prosecutors didn't share a memo about a fingerprint found at the crime scene used to rule out another suspect — a partial print, they say, that also could have ruled out Boyce. They also assert that Montgomery gave false testimony.
Jeffrey, from the Attorney General's Office, asserted that the Polaroid claim is barred under a statute of limitations. Even allowing Boyce's contention that he didn't remember the picture being taken until 1996 — while wracking his brain at the prison library — Boyce needed to file a legal action by 1999 at the latest, Jeffrey said.
"There's nothing to excuse inaction under that scenario," Jeffrey said.
But instead of filing a legal claim, Boyce wrote to the Police Department asking them if they had that picture, with Boyce saying police never wrote back.
Boyce's attorneys, who filed the claim as part of an amended petition in 2009 that they assert was filed on time, said they didn't have any evidence of the picture's existence until a police department captain unearthed it in 2008.
Since the picture still exists and was found at the police station, Norfolk Circuit Court Judge John R. Doyle III, the designated judge on the case after all five Newport News judges recused themselves, said he didn't think the fact that it wasn't shared was "nefarious," or with ill-intent.
A lack of intent to withhold, however, doesn't mean that evidence withheld accidentally could have been pivotal, too. Doyle didn't reveal how he was leaning on whether or not the breach was significant enough to warrant a new trial.
Jeffrey also asserted that Norment did not exercise "reasonable diligence" when he accepted Gwynn at his word that there was no other exculpatory evidence in existence aside from what was in the prosecutor's file. Norment could have pressed Boyce for more answers, Jeffrey said, which he then could have used to ask police and prosectors for, say, the Polaroid.
"There's nothing that says that diligence is out the window every time there's an open file policy," Jeffrey said — referring to the policy that allows defense attorneys to examine the prosecutor's file.
After the hearing, one of Boyce's lawyers, Virginia Beach attorney Lawrence H. Woodward Jr., said he took strong exception to Jeffrey's assertion that Norment didn't show "reasonable diligence" in the case.
"For the Attorney General's Office to say that Tommy Norment should have been more diligent, I think is absurd," Woodward said. "It's ridiculous. Tommy Norment did an excellent job in this case."
Regarding the memo about the fingerprint, Boyce's lawyers say that could have been used to impeach the credibility of technician Montgomery, who testified only "smudges" were found — and said it was exculpatory because it could have ruled out Boyce. But Jeffrey said the fingerprint claim was also filed too late, saying also that that there was no proof on the record that the print was exculpatory.
There's a dispute over when the fingerprint memo appeared in the prosecution's file: Norment said it wasn't in the file in 1991, while Gwynn said he saw no reason it wouldn't have been in there when Norment had access to it.
Doyle said he would give the matter "careful consideration" and make a ruling by the end of July.Copyright © 2015, CT Now