Richmond Times-Dispatch

More than 20 years after murder conviction, Newport News man might be freed

BY FRANK GREEN Richmond Times-Dispatch | Posted: Saturday, March 23, 2013 12:00 am

It’s been 22 years since David W. Boyce dodged a death sentence and netted two life terms in the robbery and brutal capital murder of his roommate in Newport News.

Now, thanks to a ruling by a federal judge Tuesday and a 1990 Polaroid photograph snapped by police of the then-teenage Boyce in his Sizzler restaurant uniform, he may be freed.

David Koropp, one of his lawyers, spoke with Boyce at the Augusta Correctional Center via telephone Wednesday. “He is what you would expect: a mixture of elation, relief and bewilderment,” Koropp said.

“Luckily, he has a wife to help him through this next chapter,” he said. “We are very grateful that justice has finally been done. ... There is nothing more satisfying for a lawyer than overturning the wrongful conviction of an innocent man.”

Boyce, now 42, must wait for the Virginia Attorney General’s office to choose whether to appeal the ruling, retry him or let him go. On Tuesday, U.S. District Judge James R. Spencer gave authorities 120 days to decide.

Longtime Newport News Commonwealth’s Attorney Howard E. Gwynn, who prosecuted Boyce in 1991, did not return calls this week.

Boyce’s problems started in 1990 when he was 19 years old and shared an efficiency room in a hotel with Timothy Kurt Askew. Askew was divorced and Boyce had recently separated from his wife.

Askew’s body was discovered about 11 a.m. May 19, 1990, by a housekeeper in another room Askew had rented at the hotel.

He was stabbed 16 times and sexually assaulted. His wallet was missing and his pants were on the bed with the pockets turned inside out. Evidence from the crime scene — blood, hair and semen — all failed to link Boyce to the crime.

Police questioned Boyce at his restaurant job less than 12 hours after the slaying. He said he last saw Askew about 2 a.m. when Askew said told him he had some hashish and was going to rent another room to party with some friends.

In addition to being questioned, Boyce was fingerprinted by Patti Montgomery with the police crime scene search unit and detectives took a Polaroid photograph of him that clearly showed he had short hair.

But Montgomery testified at Boyce’s 1991 trial that when she fingerprinted him on the afternoon of the murder, he had “almost shoulder length hair” and that when she saw him five days later he had cut his hair shorter.

Her description fit the description given by a hotel clerk who testified that about 3 a.m. May 19, he saw a suspicious man with shoulder length hair, or longer, leave the vicinity of the crime scene.

The commonwealth’s attorney’s office assured Boyce’s lawyer, Thomas K. Norment Jr., now a state senator, that it was providing an “open file” or free rein for him to inspect the state files. But Norment was never shown the photo.

Because litigation is still pending, Norment declined to comment through a spokesman Wednesday. But in a 2010 hearing he explained that at the time of the trial Boyce did not tell him the Polaroid photo was taken. Boyce said he did not recall it until later.

Other trial evidence included testimony from a jailhouse informant — who later recanted his testimony — that Boyce admitted he committed the murder. Boyce was convicted and prosecutors sought a death sentence, but the jury sentenced him to life.

Then, in the 1990s, Boyce remembered police had taken the photo, but he was unable to obtain it from police.

In 2004, he unsuccessfully sought a writ of actual innocence from the Virginia Supreme Court on the grounds that DNA testing failed to identify his DNA in crime scene evidence but did identify that of an unknown person.

Then the jailhouse informant recanted, but Boyce was unable to win a new hearing from the Virginia justices.

He filed state and federal appeals in 2005 and in 2008, 18 years after the photo was taken, the city of Newport News turned over the photo and Boyce amended his appeals, arguing the state had violated his constitutional rights by failing to do so at trial.

Boyce also alleged prosecutors violated his rights by knowingly using false testimony from the jailhouse informant and Montgomery. Newport News police said Wednesday that Montgomery no longer works there and she could not be reached for comment.

After a hearing in his state appeal in 2010, Norfolk Circuit Court Judge John R. Doyle III ruled that the photo was likely filed separately from photographs considered evidence and that there was no nefarious intent to hide it.

Doyle concluded that had the photo been known at the time of the trial, Montgomery’s testimony could have been refuted and a mistrial might have been declared or a new trial ordered had the photo been found within 21 days of the trial. The judge also decided that while it was impossible to determine if Montgomery testified falsely on purpose, Boyce’s constitutional rights were nevertheless violated because she falsely testified about his hair.

In the end, however, Doyle — while noting the irony that Boyce’s lack of recall denied him a remedy and that the lack of recall by police did not matter — decided Boyce could no longer raise the claims because he had waited too long.

Boyce appealed to the Virginia Supreme Court but lost again in 2011.

In a 33-page ruling Tuesday, however, U.S. District Judge James R. Spencer, of Richmond, held that Boyce did make a timely claim and was entitled to immediate relief.

“The Norfolk Circuit Court found the commonwealth violated the Constitution by suppressing the Polaroid. ... this finding is not disputed,” Spencer wrote. Therefore, he wrote, Boyce need only prove the state’s actions prevented him from filing a claim prior to the state turning over the photo.

The U.S. Supreme Court has not supported the contention that defendants must scavenge for undisclosed evidence supporting innocence in the hands of the state when the state has already said all such evidence has been disclosed, Spencer wrote.

Without the photograph, Boyce could not have proved his claim that Montgomery testified falsely, Spencer wrote. The judge concluded Boyce was not procedurally barred from making his claims.

“Neither party contests the Norfolk Circuit Court’s finding that Boyce’s due process rights were violated by the commonwealth’s suppression of the Polaroid and by obtaining his convictions through knowing use of false testimony,” Spencer wrote.
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