1/20/2019 David Boyce - National Registry of Exonerations
A PROJECT OF THE UNIVERSITY OF CALIFORNIA IRVINE NEWKIRK CENTER FOR SCIENCE & SOCIETY,
UNIVERSITY OF MICHIGAN LAW SCHOOL & MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
‘The Natic nation Registr:
a CURRENTLY 2,364 EXONERATIONS
EXONE Ri ATIONS MORE THAN 20,645 YEARS LOST
DAVID BOYCE State: Virginia
County: Newport News City
Other Virginia Cases with Perjury or False Accusation Most Serious Murder
Crime:
On the morning of May 19, 1990, a —
housekeeper at the Econo Lodge motel Additional Robbery
in Newport News, Virginia, discovered Convictions:
the body of 35-year-old Timothy Askew
in room 204. He had been stabbed Reported 1990
multiple times. Crime Date:
At the time, Askew had been sharing acted:
room 235, an efficiency suite, with 19- Convicted: = 1991.
year-old David Boyce, whom police
Photo courtesy of Daily Press located at 2 p.m. at a Sizzler’s Exonerated: 2013
restaurant where Boyce worked. Boyce
was taken to the police department, Sentence: Life
where he said that on the afternoon of the previous day, he had seen
Askew and Askew’s ex-wife at the motel. Boyce claimed that Askew gave -
him some money he owed him. Boyce said he next saw Askew around 2 Race: White
or 2:30 a.m. when Askew came into their room and said he had some
hash and was going to party with friends. Sex: Male
Boyce was fingerprinted by Officer Patti Montgomery, a detective took a
Polaroid photograph of him, and he was released. He was interviewed Agestthe 19
again on May 22 and repeated his account. On May 24, Boyce’s 20th dete of
birthday, he was called back a third time and charged with capital Z
murder and robbery. At that time, photographs were taken of his hands
that showed some cuts and bruises. Contributing Mistaken Witness ID, False
Factors: or Misleading Forensic
The prosecution sought the death penalty when Boyce went on trial in Evidence, Perjury or False
Newport City Circuit Court in March 1991, A motel clerk testified that he Accusation, Official
checked Askew into room 204 around 2 a.m. The clerk made a security Misconduct, Inadequate
walkthrough of the property at 3 a.m. and as he passed room 204, which Legal Defense
was silent and dark, he saw a man walking behind him who furtively
ducked into a crossway and then headed toward some woods located DNA Yes*
behind the motel. The clerk testified that the man looked similar to evidence
Boyce, though the man he saw had a darker complexion and “at least contribute to
shoulder length hair, possibly longer.” é
exoneration’
Patti Montgomery, the police officer who fingerprinted Boyce, testified
that Boyce had “almost shoulder length hair” when she took his
fingerprints, She told the jury that when she saw him after his arrest,
which was five days after she fingerprinted him, “he had cut his hair
again, even shorter.”
Herman Elkins testified that he was in jail on an illegal gun possession
charge when Boyce confessed to the murder through jail cell bars. Elkins
said that Boyce was on the way back to his cell from taking a shower
when he confessed. According to Elkins, Boyce said that he and Askew
had been gay lovers and that he killed Askew during a quarrel.
A police evidence technician testified that a scent-tracing dog traced the
scent from bloody towels in room 204, where the body was found, to
room 235, where Boyce and Askew had both been living.
The jury was shown the photographs of cuts and bruises on Boyce’s
hands, taken five days after the crime.
After a two-day trial, the jury convicted Boyce of capital murder and
robbery, and sentenced him to two terms of life in prison.
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1/20/2019 David Boyce - National Registry of Exonerations
In the late 1990s, Boyce was going through transcripts and he happened
to remember that his photograph had been taken on the day he was first
questioned by police. He wrote a letter to the Newport News Police
requesting a copy of the photo. There was no response
In 2001, after his conviction was upheld on appeal, Boyce was granted
DNA testing of evidence in the case and he mentioned to his lawyers his
memory of detectives taking a Polaroid of him. But when the police
investigative file was turned over to the lawyers, the photograph was not
in the file.
In May 2004, Boyce filed a petition for a writ of actual innocence in the
Supreme Court of Virginia based on DNA testing of biological evidence in
room 204, The DNA evidence showed the presence of DNA of an
unidentified person and none of Boyce’s DNA. In August 2004, Elkins,
the jailhouse snitch, telephoned Boyce’s attorney and said he had lied at
Boyce’s trial in return for dismissal of the gun possession charge.
However, Boyce’s petition was denied.
When the petition was denied, Boyce’s appellate attorney referred the
case to the Mid-Atlantic Innocence Project before discontinuing his
representation. Lacking the resources to properly litigate Boyce’s claims
at that time, the Mid-Atlantic Innocence Project referred the case to an
outside law firm which agreed to represent Boyce pro bono.
In 2005, Boyce’s attorneys simultaneously filed state and federal
petitions for writs of habeas corpus. In the course of the state
the revealed exculpatory evidence that had not
been disclosed to Boyce before or at his trial. The evidence included a
prosecution report of a telephone call from a member of Askew’s family
saying that a man named Robert Rodriguez had told acquaintances that
he had “cut up” Askew. The newly disclosed evidence also included the
Polaroid photograph of Boyce that was taken by a detective on the day of
the murder when he was first questioned. That photograph showed
Boyce from the waist up, wearing his Sizzler’s uniform and nametag. His
hair was short.
In 2010, a hearing on the state petition was held. Elkins recanted his
recantation and asserted that he had testified truthfully at Boyce's trial.
Boyce’s attorneys presented evidence of Elkins’ history of mental illness
and evidence that Elkins had originally recanted to prosecutors in 2004,
prior to calling Boyce’s attorneys. According to the defense, prosecutors
had not only failed to disclose the recantation, but had discouraged
Elkins from contacting Boyce's attorneys. The court ruled that the failure
to disclose the photograph had violated Boyce’s constitutional right to a
fair trial, but denied the petition. The judge found it was filed too late—
the statute of limitations for filing his petition had expired—because
Boyce knew about the existence of the photograph but failed to raise it
at trial.
In 2011, Boyce turned to the federal habeas petition, which had been
put on hold pending the conclusion of the state proceedings. In March
2013, U.S. District Court Judge James R. Spencer granted Boyce’s
petition, vacated his conviction and ordered a new trial. Boyce was
released in April 2013.
On September 18, 2013, the prosecution dismissed the charges at a
hearing presided over by Norfolk Circuit Court Judge Mary Jane Hall, who
said she was “familiar with the record in this case,” and that her review
of the evidence and the case's record led her to conclude that “the wrong
person was prosecuted.”
“L can't give you back the last 23 years, but I can give you back the next
23 years,” Judge Hall told Boyce. “I can sign the order, and I'm doing so
at this time.”
In May 2014, Boyce filed a lawsuit against the city of Newport News and
the lead detectives in his case seeking $25 million in damages for his
wrongful incarceration. The lawsuit was settled in January 2016 for $2
million
~ Maurice Possley
Report an error or add more information about this case.
Posting Date: 9/24/2013
Last Updated: 1/13/2016
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