A Polaroid picture that wasn't shared with the defendant's attorney and trial testimony of a police technician will be central to a final hearing Tuesday on whether a man convicted of capital murder 19 years ago got a fair trial.

Attorneys for David Wayne Boyce say his conviction "is not worthy of confidence" - and should be thrown out because police and prosecutors didn't share key evidence with his trial attorney, now-Sen. Thomas K. Norment.

"Mr. Boyce did not receive a fair trial," Boyce's attorneys wrote in a June 7 brief. "He should be granted a new trial with a jury that is not tainted by false testimony and has the opportunity to consider and weigh all of the evidence favorable to Mr. Boyce." But lawyers from the state Attorney General's Office contend that Boyce, now 40, got a fair trial the first time and should stay locked up for life. Some of the claims, they say, could have been raised long ago - including at the original trial. They say there's no proof that critical evidence was withheld.

Boyce, now imprisoned in Craigsville, will be in Newport News Circuit Court for the 2 p.m. hearing - the courthouse where he was convicted in 1991.

After hearing final arguments Tuesday, Norfolk Circuit Court Judge John R. Doyle III, the designated judge on the case, will rule on whether to grant Boyce a new trial, though he's not expected to rule that day.

It was a Saturday morning in May 1990 that Timothy Kurt Askew, 35, was found slashed to death in an EconoLodge motel on Jefferson Avenue in Oyster Point. He was stabbed 27 times, with a slit throat and a gash from chest to groin. Boyce, Askew's then-19-year-old roommate, was arrested days later.

A jailhouse informant, Herman P. Elkins, was a crucial trial witness, saying Boyce confessed to him while both were at the Newport News City Jail after the crime. Jurors spared Boyce the death penalty, but gave him two life terms, for murder and robbery.

In 2004, after extensive DNA testing, a state lab determined that none of the forensics found in the room were a match to Boyce. Shortly thereafter, Elkins called Boyce's then attorney, Charles Haden, to recant, saying police pressured him to lie. Haden called the Mid-Atlantic Innocence Project, which referred the case to attorneys with Howrey LLC and Hunton & Williams. They filed a new-trial petition in 2005.

Doyle has already thrown out several claims, including that police pressured Elkins to lie. In testimony earlier this year, Elkins stood by his original trial testimony. His out-of-court recantation, Doyle said, is barred under hearsay rules. Doyle also rejected a claim that Boyce's due process rights were violated by an undercover police sting on Haden as he met with Elkins at a warehouse.

Still, Doyle let stand several claims - including the Polaroid issue and the claim that the police technician gave false testimony.

The Polaroid - found at the police station in a box titled "Boyce case" - was turned over to Boyce's lawyers in 2008, 17 years after the trial. The picture shows Boyce wearing short-to-medium hair when brought in for questioning on the day of the crime.

The Polaroid, Boyce's lawyers say, could have countered testimony from a police technician, Patty Montgomery, that Boyce had "almost shoulder-length" hair when he came in - dovetailing with a hotel clerk who described a suspicious-acting man near the crime scene as having "shoulder-length" hair.

Commonwealth's Attorney Howard Gwynn, in his closing argument, said Boyce was that long-haired man. Without the Polaroid, Boyce's lawyers say, "Mr. Boyce was denied the ability to attack ... one of the commonwealth's central arguments."

The Attorney General's Office doesn't dispute Norment was never told about the picture, but contends Boyce knew the picture was being taken - he was looking into the camera - and should have mentioned it. "The petitioner had all of the tools necessary to raise the claim at trial."

Boyce's attorneys counter that a defendant "on trial for his life" can't remember everything.

Doyle also let stand Boyce's attorneys' claim that prosecutors withheld a memo regarding a partial fingerprint found at the crime scene and used to rule out another suspect. Boyce's attorneys say the print could also have ruled out Boyce.

Norment testified in March that the memo wasn't in the prosecutor's file when he was given access to it before the trial. If it was, he said, he would have investigated it.

But the Attorney General's Office wasn't convinced. The memo was in the file later, it said, and Gwynn testified in March that he saw no reason it wouldn't have been there when Norment looked at it.


David Boyce was convicted and sentenced in 1991 to two life terms in the slaying of his roommate at a Newport News motel. Final arguments will be heard Tuesday on a petition for a new trial requested five years ago.