NORFOLK—A judge on Wednesday threw out several claims for a new trial brought by a man convicted of capital murder in Newport News 19 years ago, allowing three remaining claims to proceed.
Norfolk Circuit Court Judge John R. Doyle III said there wasn't sufficient evidence to proceed with five reasons for a new trial asserted by attorneys for David Wayne Boyce, who was convicted of slashing his roommate to death at an Oyster Point EconoLodge in May 1990.
"The things that remain in the case are the things that we always felt were the strongest," said one of Boyce's attorneys, David Walters of Howrey LLP.
The Attorney General's Office has declined to comment.
At the start of the hearing, Boyce's attorneys dropped their claim that prosecutors knowingly used the perjured testimony of a jailhouse snitch.
Doyle later dismissed all claims surrounding Herman P. Elkins, a key trial witness who testified that Boyce told him through the bars on his jail cell that he slashed the throat of Timothy Kurt Askew.
In 2004, Elkins called one of Boyce's then-attorneys, Charles Haden, and said he lied at the trial at the urging of police, with Haden recording the call. Elkins later changed his tune and stands by his original trial testimony.
But Doyle on Tuesday barred the entire phone call on the basis that the out-of-court statement is inadmissible because of evidentiary rules on hearsay.
Boyce's 2005 new trial petition was filed in large part on the basis of what Elkins said in that phone call - that he had a deal to have a gun charge dropped if he cooperated, that he had been hospitalized for various issues and that police used him regularly as an informant.
Though Boyce's lawyers sought to find other ways to prove those points - by presenting Elkins' rap sheet showing many dropped charges, having retired police officers testify that Elkins was well-known to officers and "had some type of problem" - it wasn't enough. Without considering Elkins' recorded statement, the judge ruled that none of Boyce's claims pertaining to him were anything beyond "speculation."
A key claim Doyle allowed to stand surrounds a Polaroid picture of Boyce on the day of the crime that was never shared with Boyce's 1991 trial attorney, Thomas K. Norment Jr.
The picture shows Boyce with short hair when police first brought him in for questioning. That runs counter to trial testimony from an EconoLodge clerk who described a man with "shoulder-length" hair acting suspiciously at the motel on the time of the crime - dovetailing with a police technician's testimony that Boyce had long hair when he was brought in for questioning.
The picture - which had been in the Police Department files for 17 years - was turned over to Boyce's attorneys in April 2008.
Another claim that Doyle left standing was that prosecutors withheld a document referencing that another suspect was ruled out as the contributor to a partial fingerprint found at the crime scene. That partial fingerprint, a retired FBI fingerprint expert testified, could also have ruled out Boyce.
Norment testified that neither the Polaroid nor the document about the fingerprint were in the case file in 1991. But Gwynn, called to the stand by the Attorney General's Office, said he could see "no reason" why the fingerprint document would not have been in the file when Norment went to look at it.
The Attorney General's Office attorneys did not ask Gwynn about the Polaroid.
At the end of a three-day evidentiary hearing in Norfolk Circuit Court, Judge John R. Doyle III asked both sides to file written briefs within 60 days. He will then hear oral arguments and decide whether to grant a new trial.