David Wayne Boyce sits in a hearing before Circuit Court Judge John R. Doyle III in early July to decide whether the convicted murder defendant should get a new trial. Boyce's petition was denied.

David Wayne Boyce sits in a hearing before Circuit Court Judge John R. Doyle III in early July to decide whether the convicted murder defendant should get a new trial. Boyce's petition was denied. (Rob Ostermaier, Daily Press / June 29, 2010)

A judge has denied a request for a new trial in a 1991 Newport News capital murder case — saying that although a Polaroid picture in the defendant's favor wasn't properly shared with the defense, it's too late now to raise the issue.

"The court finds that the commonwealth unwittingly suppressed material exculpatory evidence and compounded this error by presenting demonstrably false testimony touching on the same issue," Circuit Court Judge John R. Doyle III wrote. "However, the Court finds that Boyce's failure to raise the issues" at or soon after trial "disallows him from seeking relief."

In the 22-page ruling, Doyle said police and prosecutors failed to share a Polaroid picture of David Wayne Boyce taken by a detective when he was first brought in for questioning on the day of the crime.

"It is regrettable that Boyce's jury never saw this photograph," Doyle wrote. But, he added: "Boyce's trial was fair for he had every opportunity to have the court remedy the prosecution's mistake, yet he failed to even attempt to do so."

Doyle said the Polaroid was likely "forgotten" within the police files and wasn't intentionally withheld -- though a picture can be accidentally withheld and still warrant a new trial. He said it was clear that Commonwealth's Attorney Howard Gwynn, who prosecuted Boyce in 1991, knew nothing about the picture until 2009.

Boyce, who was 19 at the time of the crime, was found guilty in a 1991 jury trial in the stabbing death of his roommate, Timothy Kurt Askew, 35 at the Econo Lodge in Oyster Point. He was spared the death penalty but is serving two life terms.

The photograph — showing Boyce with short or medium hair — runs counter to a motel clerk's testimony at trial that a suspicious man at the motel that night had "shoulder length hair."

A police technician had also testified at the trial that Boyce had "almost shoulder length" hair when brought in for questioning, and Gwynn talked about the long-haired man in his closing argument to the jury.

"No reasonable person could possibly look at the photograph and describe Boyce's hair as almost shoulder length," Doyle wrote. "Thus, there would have been no connection of Boyce to the suspicious shoulder length haired man."

But though the Polaroid "would have undermined the case against Boyce," Doyle wrote in the ruling that Boyce needed to bring it up within 21 days of his sentence under procedural rules.

There was no DNA evidence or other forensic evidence tying Boyce to the crime. The motion for a new trial was filed in 2005, after a key witness in the case, jailhouse informant Herman Elkins, called Boyce's attorney, Charles Haden, to say he lied at the trial when he said that Boyce confessed at the Newport News City Jail that he killed Askew. Earlier this year, Elkins recanted his recantation, saying he told the truth at trial.

During testimony earlier this year, Boyce said he remembered the Polaroid picture being taken sometime in the late 1990s — about six years after the trial — while wracking his brain about the case in the prison library. He said he simply didn't think of it at trial, saying, in part, "My mind was on other things." He faced the possibility of execution if convicted.

If Boyce had remembered the picture at trial, Doyle wrote, the police technician's testimony "would have been objectively refuted and a mistrial might even have ensued." And if he had raised the issue after the trial, a new trial would likely have been ordered.

But Doyle said simply not remembering the picture being taken wasn't a good enough reason for not bringing it up, and that Boyce did not exercise "reasonable diligence" in failing to do so at the time. Doyle wrote that he's not aware of any prior case law that permits a "good faith exception" to the rules to apply to a case of "a human failure" to remember something.

"It's pretty shocking," said David Walters, one of Boyce's attorneys, with the firm Howrey LLP. "We have a judge who ruled that material evidence was withheld and found that a key witness in the case gave false testimony. But he ... laid it at David Boyce's feet, while he was on trial for his life."

Walters said Doyle's ruling would be appealed. One option would be filing an appeal to the Virginia Court of Appeals. Another would be appealing to the federal system, where another petition for a new trial has been on hold

Gwynn said he was "certainly troubled by the fact that" police never gave him the photograph before the trial. "I wish that I had everything in the first place so we don't have to be going through this issue right now."

But, he asserted that "the evidence in the case still supports a finding of guilt even without the photograph."