Present: Hassell, C.J., Keenan, 1 Koontz, Lemons, and Goodwyn,
JJ., and Carrico and Lacy, S.JJ.
JANICE LARUE ORNDORFF
OPINION BY
v. Record No. 090907 JUSTICE LAWRENCE L. KOONTZ, JR.
April 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Appealing her conviction in the Circuit Court of Prince
William County for the second degree murder of her husband
Goering G. Orndorff, Code § 18.2-32, and a related conviction
for use of a firearm in the commission of a felony, Code
§ 18.2-53.1, Janice Larue Orndorff maintains that she should
be awarded a new trial in order to present evidence which was
discovered after the conclusion of the guilt-determination
phase of her original trial. Orndorff maintains that this
evidence would demonstrate to a new jury that she suffers from
dissociative identity disorder (“DID”), a mental illness she
contends would serve as the basis for a defense of insanity if
accepted by the jury. 2
1
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
2
In general terms, dissociative identity disorder,
formerly termed multiple personality disorder, is the presence
of two or more distinct identities or personality states that
recurrently take control of behavior. The disorder reflects a
failure to integrate various aspects of identity, memory, and
consciousness. American Psychiatric Association, Diagnostic
In this appeal, we consider whether the Court of Appeals
erred in holding that the circuit court properly denied
Orndorff’s motion for a new trial on the ground that she had
not met her burden of showing that this after-discovered
evidence was “material, and such as should produce opposite
results on the merits at another trial.” Odum v.
Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983).
BACKGROUND
In a prior appeal, Orndorff v. Commonwealth, 271 Va. 486,
628 S.E.2d 344 (2006) (hereinafter, “Orndorff I”), we
determined that the circuit court incorrectly considered the
verdict and sentence rendered by the jury in Orndorff’s trial
in determining whether the after-discovered evidence of DID
would materially affect the result if presented in a new
trial. 3 We concluded that because a determination of
materiality of after-discovered evidence required the circuit
court to independently resolve questions of weight and
credibility in applying that evidence to the record as a
and Statistical Manual of Mental Disorders – Text Revision
§ 300.14, at 526-29 (4th ed. 2000).
3
Because the evidence and incidents of the trial relevant
to the original jury determination of Orndorff’s guilt and her
sentence are fully set out in the prior opinion of this Court,
Orndorff I, 271 Va. at 491-98, 628 S.E.2d at 346-50, we will
limit our review of the record in this opinion to the
proceedings relevant to the issue addressed by the circuit
court on remand.
2
whole, the sole remedy was to remand the case to the circuit
court for a proper application of Odum. 4 Orndorff I, 271 Va.
at 505, 628 S.E.2d at 355.
Upon remand, the circuit court ruled that a new jury
hearing evidence of Orndorff’s alleged mental disorder would
not reach a different result than that reached at the first
trial and, thus, again ruled that she had not satisfied the
materiality requirement for granting a motion for a new trial.
For reasons set out more fully in our discussion below, the
circuit court concluded that, when considered against other
evidence in the record, Orndorff’s proffered evidence lacked
sufficient credibility to permit a new jury to find that she
actually suffered from DID. The court further ruled that even
if the jury were to find that Orndorff suffered from DID, this
would not permit the jury to acquit her because no evidence
established that her mental disorder rendered her legally
insane either under the “M’Naghten Rule” standard for a
4
In reaching this conclusion, we further indicated that
we would not address the issue, raised by the Commonwealth,
whether a defendant who allegedly suffers from DID may ever
assert an insanity defense. Orndorff I, 271 Va. at 506, 628
S.E.2d at 355. In declining to reach this issue, we noted
that the circuit court had not ruled on it, and we expressly
stated that we would not “speculate whether the circuit court
will be required to reach that issue in conducting its
‘materiality’ analysis on remand.” Id.
3
defense of insanity or under the theory that she acted under
the compulsion of an irresistible impulse. 5
The Court of Appeals affirmed this judgment in an
unpublished opinion, limiting its review to the circuit
court’s determination that Orndorff had not established the
materiality of the after-discovered evidence, and declining to
address the court’s further determinations with respect to
whether Orndorff’s alleged DID would satisfy either form of an
insanity defense. Orndorff v. Commonwealth, Record No. 0495-
07-4, slip op. at 6 & n.5 (April 7, 2009). We awarded
5
As applied in Virginia, the defense of insanity provides
that a “defendant may prove that at the time of the commission
of the act, he was suffering from a mental disease or defect
such that he did not know the nature and quality of the act he
was doing, or, if he did know it, he did not know what he was
doing was wrong.” White v. Commonwealth, 272 Va. 619, 625,
636 S.E.2d 353, 356 (2006). We first recognized the
availability of a defense of insanity in Boswell v.
Commonwealth, 61 Va. (20 Gratt.) 860, 874-76 (1871), which
adopted, without directly citing, the basic principles set out
in the opinion of Lord Chief Justice Tindal in M’Naghten’s
Case, 10 Cl. and F. 200, 8 Eng. Rep. 718 (H.L. 1843).
Subsequently, we have referred to these principles as the
“M’Naghten Rule.” See, e.g., Price v. Commonwealth, 228 Va.
452, 457-458, 323 S.E.2d 106, 108-109 (1984). In addition, we
have approved in appropriate cases the granting of an
instruction defining an “irresistible impulse” as a form of
legal insanity. See, e.g., Thompson v. Commonwealth, 193 Va.
704, 717, 70 S.E.2d 284, 292 (1952). “The irresistible
impulse doctrine is applicable only to that class of cases
where the accused is able to understand the nature and
consequences of his act and knows it is wrong, but his mind
has become so impaired by disease that he is totally deprived
of the mental power to control or restrain his act.” Id. at
718, 70 S.E.2d at 292.
4
Orndorff an appeal to consider whether the Court of Appeals
correctly determined that the circuit court did not err in
concluding that she failed to meet her burden of showing the
materiality of the new evidence and whether the circuit court
erred in concluding that a diagnosis of DID in her case could
not serve as the basis for an insanity defense. We also
granted an assignment of cross-error raised by the
Commonwealth asserting that the Court of Appeals erred in
failing to rule that a diagnosis of DID could not serve as the
basis for an insanity defense.
DISCUSSION
Whether a motion for a new trial based on after-
discovered evidence should be granted “is a matter submitted
to the sound discretion of the circuit court and will be
granted only under unusual circumstances after particular care
and caution has been given to the evidence presented.”
Orndorff I, 271 Va. at 501, 628 S.E.2d at 352. In such cases,
the moving party has the burden of proof before the circuit
court to establish that such evidence
(1) appears to have been discovered subsequent to the
trial; (2) could not have been secured for use at the
trial in the exercise of reasonable diligence by the
movant; (3) is not merely cumulative, corroborative or
collateral; and (4) is material, and such as should
produce opposite results on the merits at another trial.
Odum, 225 Va. at 130, 301 S.E.2d at 149.
5
When Orndorff’s motion for a new trial was first
presented to the circuit court, only the second and fourth
components of the Odum test were at issue. Subsequently, in
Orndorff I we concluded that Orndorff had satisfied the
“reasonable diligence” requirement. 271 Va. at 501-04, 628
S.E.2d at 352-54. Accordingly, on remand the sole issue
before the circuit court was whether, in accord with the
fourth component of the Odum test, evidence of Orndorff’s
alleged mental disorder was “material, and such as should
produce opposite results on the merits at another trial.” 225
Va. at 130, 301 S.E.2d at 149.
In considering Orndorff’s motion in the first instance,
the circuit court had relied upon the fact that the jury had
received evidence during the penalty-determination phase of
the trial that Orndorff suffered from DID, offered not as an
assertion of a defense of insanity, but merely as mitigation
evidence. The court presumed that the jury had rejected this
mitigation evidence based on the length of the sentence
imposed. We held that the court erred because in so doing the
court improperly “substituted in place of its own judgment the
reaction of a jury that had already resolved crucial
credibility issues against Orndorff in the guilt[-
determination] phase of trial” before the evidence of her
6
alleged DID had been presented. Orndorff I, 271 Va. at 505,
628 S.E.2d at 354-55.
Upon remand, no additional evidence was taken, but the
circuit court reviewed the transcript as well as over one
hundred pages of notes taken by the court during the guilt and
penalty determination phases of the trial. The circuit court
received additional argument from the parties by briefs and in
a hearing held February 2, 2007. At the conclusion of the
hearing, the circuit court again denied Orndorff’s motion for
a new trial based on the after-discovered evidence purporting
to show that Orndorff suffered from DID.
In its summation stating the reasons for denying the
motion for a new trial, the circuit court expressly
acknowledged the mandate of this Court to apply the Odum test
based on the evidence in the record without regard to the
verdict rendered by the original jury. The court also
reviewed additional case law pertaining to the proper standard
for reviewing a motion for a new trial based on after-
discovered evidence.
So instructed, the circuit court then independently
evaluated the record as a whole and concluded that Orndorff
had not satisfied the materiality component of the Odum test
because a new jury would not reasonably be able to find
Orndorff’s claim that she suffered from DID to be credible.
7
The court stated that it arrived at this conclusion based on
the court’s own “opportunity to observe Ms. Orndorff, [the
court’s] opportunity to observe all of the witnesses in the
trial and their testimony, [and the court’s] opportunity to
weigh the evidence that was presented.” Specifically, the
court indicated that it placed special emphasis on the absence
of credible evidence that Orndorff suffered a “lengthy
childhood trauma,” rising to the level of “horrible, physical,
and/or sexual abuse,” as that evidence was “distinctive in
assessing the credibility or the weight of the expert
witnesses,” who testified that such trauma was necessary for a
person to develop DID.
The circuit court also found that “there was strong
evidence from the doctors and others that saw [Orndorff] at
Central State [Hospital] that would [lead] one to believe that
she was a manipulative person who was trying to manipulate the
evidence against her.” The court noted that the Commonwealth
had adduced evidence that Orndorff “alter[ed] the scene of the
offense” and “attempt[ed] to bribe a witness to help her with
her [claim of] self-defense.” 6 The court recalled clearly
observing during the trial that Orndorff’s behavior correlated
6
During the guilt-determination phase of her trial,
Orndorff asserted that she had acted in self-defense, rather
8
directly to how well or how poorly she appeared to perceive
the case was proceeding, manifesting bizarre behavior only
when “something negative was said about her.” In that regard,
the Commonwealth had presented evidence that Orndorff had told
her cellmate while she was confined to jail that “she could be
five or twelve [years old], whenever she wanted to be, and she
was going to beat [the] doctors at Central State [Hospital].”
The circuit court further concluded that even if a new
jury were to accept that Orndorff suffered from DID, none of
the expert testimony would support instructing the jury on the
defense of insanity under the M’Naghten Rule standard. The
court found that “there just simply is not sufficient evidence
. . . on the [insanity] defense that would get [Orndorff] to
the jury on that issue.” In doing so, however, the court did
not expressly rule that a diagnosis of DID could never be
applied to support an insanity defense.
The circuit court also ruled that the one expert who
opined that Orndorff’s alleged DID might support a defense of
irresistible impulse did so only in a conclusory fashion. The
court expressly stated that the expert failed to “support the
basis for the opinion” that Orndorff would have been deprived
than as a result of insanity or irresistible impulse.
Orndorff I, 271 Va. at 494, 628 S.E.2d at 348.
9
of the mental power to control or restrain the actions of her
“alter” personalities.
Orndorff contends that in the proceedings on remand the
circuit court once again “misinterpret[ed] its proper role in
weighing evidence” and that “its factual findings resulting
from this misinterpretation lacked any real evidentiary
support.” Orndorff asserts that the circuit should have
weighed only the credibility of the expert evidence concerning
whether she suffered from DID, without considering other
aspects of the record relied on by the court in determining
that a new jury would not reasonably conclude that she
actually had DID. She further asserts that in making this
analysis, “it is irrelevant whether the court believes the new
evidence to be true,” contending that the court is required to
assume that the new evidence would be believed by the new
jury. We disagree.
Orndorff’s position is directly contrary to our
recitation of the proper standard for considering a motion for
a new trial based on after-discovered evidence that we
directed the circuit court to apply in Orndorff I. As we
explained in Orndorff I, when “the evidence supporting the new
trial motion is contradicted by evidence in opposition to the
motion, the circuit court is not permitted to presume that the
moving party’s evidence is true but is required to weigh all
10
the evidence presented in determining whether the moving party
has satisfied the materiality standard articulated in Odum.”
271 Va. at 504-05, 628 S.E.2d at 354 (emphasis added).
Accordingly, “the court’s role resembles that of a fact finder
in determining whether the evidence is such that it should
produce an opposite result on the merits at a new trial.” Id.
at 505, 628 S.E.2d at 354.
Moreover, because the consideration of a motion for a new
trial is committed to the sound discretion of the circuit
court, when a proper standard is applied by the circuit court
the appellate court may not substitute its own judgment of the
record, but must defer to the circuit court which had the
opportunity to assess the credibility of the witnesses and was
in the best position to determine the weight to be accorded
the evidence. See Odum, 225 Va. at 131, 301 S.E.2d at 149;
Holmes v. Commonwealth, 156 Va. 963, 969, 157 S.E. 554, 556
(1931).
The record of the hearing on remand in this case amply
demonstrates that the circuit court understood the mandate of
this Court and assiduously reviewed the record with particular
care and caution under the appropriate standard. In doing so,
the circuit court set out at length its reasons for finding
that the after-discovered evidence would not lead a new jury
to conclude that Orndorff suffered from DID, or that if she
11
did, she would be entitled to have the jury instructed on a
defense of insanity or a defense of irresistible impulse. The
court’s conclusions are entirely supported by the record.
Accordingly, we cannot say that the circuit court abused its
discretion when it determined that Orndorff’s asserted after-
discovered evidence was not credible and that, because it was
not credible, it was not material and would not produce
opposite results on the merits at another trial.
While we approve the circuit court’s determination that
the expert testimony presented in this case failed to
establish either that Orndorff’s alleged DID rendered her
legally insane at the time of the murder under the M’Naghten
Rule standard or that she was acting under an irresistible
impulse, we emphasize that we do not today decide the issue
whether a person with DID might in some case be shown to be
legally insane or incapable of exercising the power to control
or restrain his or her actions because of an irresistible
impulse. Thus, while the parties have extensively briefed
this issue and its treatment in other jurisdictions in
addressing Orndorff’s second assignment of error and the
Commonwealth’s assignment of cross-error, we need not reach
that issue and, accordingly, we will express no opinion
thereon.
12
CONCLUSION
For these reasons, the judgment of the Court of Appeals
holding that the circuit court did not abuse its discretion in
denying Orndorff’s motion for a new trial will be affirmed.
Affirmed.
13