PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,* S.J.
JANICE LARUE ORNDORFF
v. Record No. 051478 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 21, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we decide whether a circuit court erred in
refusing to grant a defendant’s motion for a new trial based on
after-discovered evidence of a mental disorder that allegedly
would support an insanity defense.
Janice Larue Orndorff (Orndorff) was indicted by a grand
jury in Prince William County for crimes involving the death of
her husband, Goering G. Orndorff (Goering). In a jury trial in
the circuit court, Orndorff was convicted of second-degree
murder, in violation of Code § 18.2-32, and use of a firearm in
the commission of murder, in violation of Code § 18.2-53.1.
After the jury found Orndorff guilty of these offenses, but
before the sentencing phase of the trial, Orndorff moved for a
new trial based on after-discovered evidence. She contended
that this new evidence would show that at the time of the murder
she suffered from dissociative identity disorder (DID),1 which
*
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
1
The Diagnostic and Statistical Manual of Mental Disorders
states that the four diagnostic criteria of DID are:
she alleged would support an insanity defense. At Orndorff’s
request, the circuit court agreed to delay ruling on the motion
for a new trial until after the completion of the sentencing
phase. The jury fixed Orndorff’s sentence at 32 years’
imprisonment for the murder and three years’ imprisonment for
the firearms offense. The circuit court denied Orndorff’s
motion for a new trial and imposed sentence in accordance with
the jury verdict.
A divided panel of the Court of Appeals reversed the
circuit court’s judgment and vacated the two convictions,
holding that the circuit court abused its discretion in denying
the motion for a new trial, and remanded the case to the circuit
court. Orndorff v. Commonwealth, 44 Va. App. 368, 605 S.E.2d
307 (2004). After the Court of Appeals granted the
Commonwealth’s petition for a rehearing en banc, a majority of
(A) [t]he presence of two or more distinct identities
or personality states (each with its own relatively
enduring pattern of perceiving, relating to, and
thinking about the environment and self)[;] (B) [a]t
least two of these identities or personality states
recurrently take control of the person's behavior[;]
(C) [i]nability to recall important personal
information that is too extensive to be explained by
ordinary forgetfulness[; and] (D) [t]he disturbance is
not due to the direct physiological effects of a
substance, (e.g., blackouts or chaotic behavior during
[a]lcohol [i]ntoxication) or a general medical
condition, (e.g., complex partial seizures).
The American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders § 300.14, at 487
(4th ed. 1994).
2
the Court of Appeals approved the circuit court’s denial of the
motion for a new trial and affirmed the circuit court’s
judgment. Orndorff v. Commonwealth, 45 Va. App. 822, 613 S.E.2d
876 (2005).
I.
The evidence at trial showed that Orndorff and Goering were
married in 1993. By early 2000, they were experiencing serious
problems in their marriage. Orndorff contacted her mother-in-
law frequently and expressed concerns about Goering’s fidelity.
Goering’s mother testified that Orndorff said that she would see
“[her husband] dead before he [left her] for another woman.”
However, Goering’s mother stated that she was not alarmed by the
threat and noted that Orndorff also “consistently [stated] that
she loved Goering” and that “he’s [her] whole life and that’s
what [she] live[s] for.”
Also during this period, Orndorff contacted Thomas G.
Underwood, a friend and attorney who previously had represented
both Orndorff and Goering. Orndorff expressed concern about
Goering’s drinking and possible infidelity, as well as the
safety of her two sons from a previous marriage who still lived
at home. Orndorff asked Underwood to represent her in a
potential divorce proceeding, but he declined based on his past
representation of Goering. Underwood instead agreed to refer
3
her to another lawyer. Orndorff also asked Underwood to prepare
a will for her that left all her property to her children.
During the afternoon of March 20, 2000, Underwood informed
Orndorff that the lawyer he had recommended was unavailable to
meet with her for about a week. Orndorff, sounding unconcerned
about the delay, mentioned to Underwood that she and Goering
planned to have dinner that evening on the occasion of their
anniversary.
Earlier that day, Orndorff’s mother-in-law contacted
Goering inquiring about the state of his marriage. She
testified that her son stated, “[T]hings are worse, I’ve had all
I can take, I’m leaving tonight.”
That night, the Orndorffs went to dinner as planned. When
they returned home, Judd L. Bond, Orndorff’s son, observed
Goering yelling and “stomping around.” Bond left the house
shortly thereafter.
At 8:37 p.m., Orndorff telephoned Underwood and reported
that she had shot her husband, stating that he had approached
her holding a knife and a baseball bat. She stated that Goering
was still alive and asked Underwood to come to the house. After
learning that Orndorff had not summoned an ambulance, Underwood
told her to contact a “911” operator immediately. Because
Orndorff sounded “hysterical,” Underwood also telephoned “911”
shortly after he finished speaking with her.
4
At 8:39 p.m., Orndorff spoke with a “911” operator and
stated that she had shot her husband after he approached her
holding a baseball bat and a knife. She also told the operator
that she was afraid to “come out of hiding” in the house because
her husband was alive, had gained possession of the gun, and was
trying to kill her.
During the approximately hour-long conversation with the
“911” operator, Orndorff’s tone alternated between lucid and
hysterically disoriented. At times, she spoke calmly and called
the operator by name. At other times, however, she seemed
unable to discern with whom she was speaking. Occasionally, she
asked to speak to her “mommy,” and at one point appeared to be
addressing her mother directly. Several times during the
telephone conversation, Orndorff cried hysterically without
responding to the operator’s questions and repeatedly asked for
help, stating, “He is going to kill me.”
A transcript of the “911” telephone conversation revealed
that several of Orndorff’s statements were confusing and
contradictory. Orndorff said at one point that she did not know
whether she was sitting down. Asked where in the house she was
hiding, Orndorff indicated that it was dark and stated that she
was unaware of her location. Although Orndorff initially stated
that her husband was on the kitchen floor, she later said that
she did not know where he was. Additionally, she admitted
5
knowing Underwood but stated that she had not contacted him that
night.
About 9:30 p.m., one of the police officers responding to
the Orndorff residence opened the front door. Orndorff
approached the door with a cordless telephone in her hand. When
the officer signaled for her to come out of the house, she
turned around and retreated inside. A few minutes later,
Orndorff ran out of the house screaming that her husband was
trying to kill her.
Officer Robert J. McHale testified that Orndorff appeared
to be “hysterical.” Detecting the smell of alcohol, McHale
asked her if she had been drinking. She calmly replied that she
had consumed a “couple of glasses of wine with dinner,” and then
resumed her former hysterical demeanor.
The police found Goering’s body in the kitchen lying
facedown with a baseball bat in the left hand and a knife pinned
underneath the body in the right hand. He had been shot five
times: once in the left palm, three times in his torso, and once
in the top of his head. On a table in the kitchen, the police
found a handgun next to a telephone book, which had been opened
to a page that included Underwood’s telephone number.
The evidence further showed that in July 2000, Orndorff
approached Maura J. Workman, with whom both Orndorff and Goering
were acquainted. According to Workman, Orndorff said that she
6
was facing imprisonment and offered to pay Workman $10,000 if
she would testify that Goering had physically abused Orndorff.
Workman testified that she had never seen Goering act in an
abusive manner toward his wife and did not accept Orndorff’s
offer.
II.
Orndorff was indicted for the first-degree murder of her
husband and for use of a firearm during the commission of
murder. Before trial, Orndorff gave notice that she intended to
present psychiatric and psychological evidence that she suffered
from amnesia after the shooting. She sought to present this
evidence to rebut the anticipated argument that her behavior on
the night of the murder was calculated to deceive the police.
She conceded that her evidence did not support an insanity
defense.
At a pretrial hearing on the Commonwealth’s motion to
exclude this evidence, Orndorff presented testimony from Dr.
Susan J. Fiester, a forensic psychiatrist, and Dr. Wilfred G.
van Gorp, a clinical psychologist, who both had been retained to
assess Orndorff’s mental state. After being qualified by the
court to present expert testimony, these witnesses testified
that Orndorff suffered from various mental disorders, including
post-traumatic stress disorder and “dissociative disorder not
otherwise specified.” Dr. Fiester described that dissociative
7
disorder as the diagnosis indicated when a patient’s symptoms
meet many of the criteria of a specific dissociative disorder
but do not “fit it exactly.” Dr. Fiester and Dr. van Gorp based
their diagnoses on personal interviews with Orndorff, Orndorff’s
inability to remember the events surrounding her husband’s
death, her behavior during the “911” telephone conversation,
transcripts of her interviews with the police, and a review of
her prior history.
Dr. Fiester and Dr. van Gorp both testified that Orndorff
had a propensity to dissociate, meaning that she periodically
divorced her emotions and actions from her conscious awareness,
and had experienced a dissociative state caused by the trauma of
her husband’s death. Neither witness opined that Orndorff
suffered from DID or any other mental disorder that allegedly
would support an insanity defense. Dr. Fiester stated that she
found “no evidence that [Orndorff] was legally insane at the
time of the offense” nor any evidence that she killed her
husband because of an irresistible impulse. After hearing this
evidence, the circuit court ruled that the mental health experts
would be permitted to testify about the nature of dissociative
amnesia but would not be allowed to testify that they had
actually examined or diagnosed Orndorff.
At trial, the Commonwealth argued that Orndorff’s post-
shooting demeanor was a ruse designed to conceal her guilt. The
8
Commonwealth presented witnesses who qualified as experts in the
fields of autopsy and bloodstain analysis. These witnesses
testified that the forensic evidence indicated Orndorff had
arranged the weapons in Goering’s hands after the shooting.
However, Orndorff presented a forensic medical expert, who
challenged this assertion and testified that the relative
locations of Goering’s body and the weapons were physiologically
possible. Defense counsel argued that Orndorff shot her husband
in self-defense, and that her behavior afterward could be
attributed to a dissociative episode caused by the trauma she
had just experienced. Consistent with her pretrial
representation, Orndorff did not argue that she was legally
insane at the time of the offense. The jury found Orndorff
guilty of second-degree murder and use of a firearm in the
commission of murder.
Shortly after her conviction, before the sentencing phase
of the trial was to begin, Orndorff exhibited unusual behavior.
She told jail personnel that she was 12 years old and did not
belong in the “strict school” because she had done nothing
wrong. As a result of this behavior, Orndorff underwent
additional mental evaluations.
According to Dr. Fiester, Orndorff was unaware of both her
age and location. “Her understanding of the situation,” Dr.
Fiester testified, “was that she’s in dire fear because she’s a
9
child and she’s done something wrong and she has no idea what it
is and why she’s where she is.” Dr. Fiester noted that
Orndorff’s symptoms, in addition to fitting the profile of a
dissociative episode, also suggested that she had a psychiatric
illness. Dr. Fiester explained:
It could raise the question of whether she might have
problems with her reality testing; whether there is a
psychotic part of the picture; whether there is what’s
called a dissociative identity disorder, which is what
used to be known in the past as a multiple personality
disorder; or some other type of dissociative disorder.
Concluding, Dr. Fiester opined that Orndorff suffered from a
“severe mental illness” that rendered her incompetent to assist
counsel in her defense.
Dr. van Gorp stated his opinion regarding this new behavior
in a letter to defense counsel:
It is my firm opinion that this decline and abrupt
change in [Orndorff’s] mental state represents a state
of regression and dissociation, producing a fugue-like
state in which she has regressed to the identity she
had as a child. At the very least, this represents
dramatic regression in a person who has seriously
dissociated: that is, in lay terms, she has become
overwhelmed by the stress of her circumstances, and
cannot consciously process what has happened to her.
As a response, she has "split off" from her conscious
experience, and regressed to a child-like state, now
believing she is in school in Union City, Tennessee,
where she apparently grew up. This altered identity
also raises the possibility of an even more serious
condition, in which dissociation is more pervasive,
and a multiple personality disorder must be seriously
considered and psychologically and psychiatrically
ruled out.
10
Based on these evaluations, the circuit court determined
that Orndorff was not competent to participate in the sentencing
phase of her trial. The court entered an order committing her
to Central State Hospital (Central State) for evaluation and
treatment pursuant to Code § 19.2-169.1. Orndorff remained at
Central State for eight months under the care of Dr. Greg J.
Wolber, a psychologist who headed Central State’s forensic
evaluation team, and Dr. Daniel Sheneman, the attending
psychiatrist for the behavioral unit in which Orndorff was
placed. Dr. Sheneman diagnosed Orndorff as having post-
traumatic stress disorder.
Dr. Wolber conferred with Dr. Paul F. Dell, a clinical
psychologist and an authority on dissociative disorders. Dr.
Dell diagnosed Orndorff as having DID. After consulting with
Dr. Dell, Dr. Fiester and Dr. van Gorp revised their diagnoses
and concurred that Orndorff suffered from DID. Dr. Wolber and
Dr. Sheneman, however, disagreed with this new diagnosis and
concluded that Orndorff did not suffer from DID. After
considering these various opinions, the circuit court certified
that Orndorff was competent to participate in the sentencing
phase of her trial.
Immediately before the sentencing phase began, Orndorff
filed a motion for a new trial based on after-discovered
evidence. However, defense counsel requested that the circuit
11
court defer its ruling on the motion so that evidence of the new
diagnosis of DID could be presented as mitigation evidence
during the sentencing phase of the trial. Defense counsel
represented that Orndorff would offer that same evidence in
support of her new trial motion. The circuit court agreed to
this procedure and postponed ruling on the motion for a new
trial until the sentencing phase was completed.
During the sentencing phase, Dr. Dell testified that after
he observed in Orndorff manifestations of three separate “alter”
personalities, he concluded that she suffered from DID. In
addition to the host personality of Janice Orndorff, Dr. Dell
identified: (1) “Jacob,” a strong, forceful male “protector”
personality; (2) “Jean Bugineau,” a French-speaking personality;
and (3) “Janice Nanney,” a 12-year-old child. Dr. Dell noted
that DID is difficult to diagnose because the “alter”
personalities do not appear to be visibly different from the
host personality and, being “cautious,” do not announce their
presence. He testified that Orndorff’s “911” telephone
conversation contained evidence of her “switching” between
personalities.
Dr. van Gorp described the interplay between Orndorff’s
different personalities, stating that the “alter” personalities
are “walled off usually from the conscious experience of the
host personality” and each “has his or her own basic memories.”
12
According to Dr. van Gorp, DID is an uncommon condition, and it
can be difficult to diagnose because the “switching” of
personalities that indicates the presence of the illness only
occurs during periods of stress. Dr. van Gorp noted that, in
retrospect, Orndorff’s comments during the “911” conversation
were consistent with those likely made by one suffering from
DID. However, he stated that the only indicators at that time
of a possible DID condition were the references to “mommy,”
which, standing alone, were insufficient to establish a
diagnosis of DID.
Dr. Fiester testified that she was only able to reach a
diagnosis of DID after witnessing Orndorff present “as a twelve-
year-old girl” following her conviction and on learning of the
repeated reemergence of that same “alter” personality.
According to Dr. Fiester, the manifestation of an “alter”
personality is necessary for a diagnosis of DID. In response to
testimony that Orndorff told others that she could “make herself
be twelve years old,” Dr. Fiester stated that persons suffering
from DID are often frightened by its effects and want to believe
that they have control over the process even though they do not.
Dr. Richard J. Loewenstein, a psychiatrist and authority on
trauma disorders and dissociative disorders, also diagnosed
Orndorff as having DID after witnessing her childlike and
protector “alter” personalities. Noting that most individuals
13
suffering from DID report a history of significant childhood
trauma, Dr. Loewenstein testified that Orndorff told him that
her mother had whipped Orndorff with a switch and locked her
alone in a room for long periods when she was a child.
Orndorff, however, had not previously reported this history to
her other doctors.
Dr. Loewenstein remarked that other episodes from
Orndorff’s past also were consistent with symptoms of DID. He
cited the fact that over a period of several years, Orndorff had
been observed in a trance-like state, had been forgetful on a
chronic basis, and had experienced behavioral “swings.”
According to Dr. Loewenstein, the Janice, or “host,”
personality had no memory of shooting her husband, but a
“protector alter” appeared to have a clear recollection. Dr.
Loewenstein was able to observe one of the “protector alters,”
who stated that it and the “Jean alter” had done the shooting.
Dr. Loewenstein opined that “at the time of the murder,
[Orndorff] was overwhelmed by symptoms of [DID]” and therefore
“her mental state at the time of the crime should lead to a
finding of legal insanity by Virginia law under the
‘irresistible impulse’ test of the insanity statutes.” All
medical expert witnesses presented by the defense testified that
they did not believe that Orndorff was malingering.
14
Dr. Sheneman testified that he only observed the
manifestation of the 12-year-old persona in Orndorff and stated
that he was not convinced that this presentation qualified as a
distinct identity. As a result, he explained that he did not
think that Orndorff met the criteria for DID. Dr. Sheneman also
testified that the childhood abuse Orndorff described was not of
the severe type normally found in people suffering from DID.
The Commonwealth also presented the testimony of Angela M.
Valentine, who was Orndorff’s cellmate before Orndorff was
committed to Central State and upon Orndorff’s return to the
jail. Valentine testified that Orndorff said that “she could
act like she was twelve years old when she got good and ready
. . . so she could, you know, beat the doctors at Central
State.”
During the competency hearing and the sentencing phase of
the trial, Orndorff disrupted the proceedings with verbal
outbursts, challenging statements made by the prosecutors.
After hearing all the evidence, the jury returned its sentencing
verdict, and the circuit court denied Orndorff’s motion for a
new trial. The court stated that Orndorff had failed to show
that she could not have obtained the evidence of her DID
condition for use at trial through the exercise of reasonable
diligence, and that she failed to demonstrate that this
15
additional evidence should produce an opposite result in another
trial. The court noted:
In part, I conclude that [such evidence] would not
produce opposite results on the merits at another
trial because the jury did, in fact, hear all this.
They heard[,] in essence, her entire position, that
she had DID, that there were multiple personalities,
in fact, . . . another personality is the one that
committed the murder . . . .
The circuit court sentenced Orndorff in accordance with the
jury verdict. Orndorff appealed from the circuit court’s
judgment.
III.
The Court of Appeals’ panel that reversed and vacated
Orndorff’s convictions concluded that she met the “reasonable
diligence” requirement for a new trial set forth in Odum v.
Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983).
Orndorff, 44 Va. App. at 400, 605 S.E.2d at 323. Addressing the
Odum “materiality” requirement, the panel held that “the
[circuit] court abused its discretion in relying on the jury’s
apparent rejection of Orndorff’s mitigating evidence at
sentencing as grounds for concluding that such evidence would
not produce a different result at the guilt phase.” Id. at 401-
02, 605 S.E.2d at 324. The panel stated that it is “no surprise
[that already] having found Orndorff to be a murderer and a
liar, the jury apparently found her belated mitigating evidence
of insanity unpersuasive.” Id. at 402, 605 S.E.2d at 324. The
16
panel then assumed the truth and accuracy of Orndorff’s after-
discovered evidence and held that such evidence “present[s] a
viable defense of legal insanity under the doctrine of
irresistible impulse” and would produce opposite results on the
merits at another trial. Id. at 404, 605 S.E.2d at 325.
In reaching a different result on rehearing en banc, the
Court of Appeals first concluded that the circuit court did not
err in holding that Orndorff was competent to stand trial in the
sentencing phase. Orndorff, 45 Va. App. at 845-46, 613 S.E.2d
at 887-88. Second, the Court observed that Orndorff had
exhibited symptoms of DID prior to trial, including the “911”
telephone conversation in which she asked for her “mommy” while
speaking to an operator. Thus, the Court held that the post-
trial “diagnosis of DID was really just a different diagnosis of
a known condition” that could have been made before trial in the
exercise of reasonable diligence. Id. at 841-42, 613 S.E.2d at
885-86.
Finally, the Court of Appeals concluded that the circuit
court did not abuse its discretion in relying on the jury’s
apparent rejection of the after-discovered evidence at
sentencing as the basis for concluding that Orndorff failed to
show that the new evidence should produce opposite results at
another trial. Id. at 844, 613 S.E.2d at 887. The Court
observed that the jury heard conflicting expert testimony
17
concerning whether Orndorff met the diagnostic criteria for DID,
as well as testimony from Valentine, Orndorff’s cellmate, that
Orndorff bragged about being able to manipulate her behavior at
will. Id. at 843, 613 S.E.2d at 886. Concluding that “the jury
discounted the new diagnosis of DID and sentenced [Orndorff] to
far in excess of the minimum sentence for the offense,” the
Court of Appeals held that “[a] new trial presenting the same
evidence to a new jury would not produce a different result.”
Id. at 843-44, 613 S.E.2d at 886-87. We awarded Orndorff an
appeal.
IV.
We first consider whether the circuit court erred in
holding that Orndorff was competent to stand trial in the
sentencing phase after being treated at Central State. Orndorff
argues that the evidence showed that she was not competent at
this point in the trial, and that the dissociative episodes she
experienced during the sentencing phase further support this
conclusion. We disagree with Orndorff’s arguments.
Under Code § 19.2-169.1(E), the party alleging that a
criminal defendant is incompetent to participate in her defense
bears the burden of proof on this issue by a preponderance of
the evidence. The determination whether a defendant is
competent is based on whether the defendant lacks substantial
capacity to understand the criminal proceedings against her or
18
is incapable of assisting counsel in her defense. Id.; Burns v.
Commonwealth, 261 Va. 307, 336, 541 S.E.2d 872, 891 (2001). The
United States Supreme Court has explained in greater detail that
the standard for competency to stand trial “is whether the
defendant has ‘sufficient present ability to consult with [her]
lawyer with a reasonable degree of rational understanding’ and
has ‘a rational as well as factual understanding of the
proceedings against [her].’ ” Godinez v. Moran, 509 U.S. 389,
396 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam)).
The determination whether a criminal defendant is competent
to stand trial is a question of fact that will not be disturbed
on appeal unless plainly wrong. See United States v. Robinson,
404 F.3d 850, 856 (4th Cir. 2005); United States v. Verduzco-
Martinez, 186 F.3d 1208, 1211 (10th Cir. 1999); see also Bailey
v. Commonwealth, 259 Va. 723, 746, 529 S.E.2d 570, 583-84
(2000). In conducting our review, we consider the evidence in
the light most favorable to the Commonwealth, the prevailing
party on this issue in the circuit court. Dixon v.
Commonwealth, 270 Va. 34, 37, 613 S.E.2d 398, 399 (2005); Tucker
v. Commonwealth, 268 Va. 490, 492, 604 S.E.2d 66, 67 (2004).
We hold that the circuit court’s competency determination
is supported by the evidence and is not plainly wrong. The
court received evidence from Dr. Wolber and Dr. Sheneman, who
19
each concluded that Orndorff did not suffer from DID but had
several less serious conditions, including post-traumatic stress
disorder, which did not render her unable to understand the
proceedings or to assist counsel in her defense. These
witnesses reached their conclusions during extensive contact
with Orndorff over the eight-month period that she remained at
Central State. After assessing the progress of Orndorff’s
treatment at Central State, they determined that they had been
successful in “desensitizing” her to certain topics, such as
crime scene photographs and accounts of the shooting, which
would be most likely to cause her to dissociate in the
courtroom.
Dr. Wolber and Dr. Sheneman also stated that Orndorff could
exercise some volitional control over the timing and duration of
her dissociative episodes. Dr. Sheneman further explained that
he had identified methods that could be used to stop these
episodes should they occur during trial. Based on all these
observations and assessments, Dr. Wolber and Dr. Sheneman both
concluded that Orndorff was competent to participate in the
sentencing phase of her trial.
Although there was conflicting testimony regarding the
issue of Orndorff’s competency, the circuit court chose to rely
on the testimony of Dr. Wolber and Dr. Sheneman. Based on this
20
evidentiary support for the circuit court’s finding, we will not
disturb that finding on appeal.
V.
We next consider Orndorff’s argument that the Court of
Appeals erred in approving the circuit court’s denial of her
motion for a new trial based on after-discovered evidence. Such
a motion 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. Commonwealth v. Tweed, 264 Va. 524,
528, 570 S.E.2d 797, 800 (2002); Stockton v. Commonwealth, 227
Va. 124, 149, 314 S.E.2d 371, 387 (1984); Fulcher v. Whitlow,
208 Va. 34, 37, 155 S.E.2d 362, 365 (1967).
A moving party’s burden of proof before the circuit court
on a motion for a new trial based on after-discovered evidence
is well established. The moving party must 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.
In the circuit court and on appeal, the Commonwealth has
not disputed that Orndorff has met the first and third
21
requirements set forth above. The Commonwealth instead has
asserted that Orndorff has failed to prove the second and fourth
requirements of the Odum test, namely, those of “reasonable
diligence” and “materiality.” Because both the circuit court
and the Court of Appeals confined their review of Orndorff’s new
trial motion to these two requirements, we likewise limit our
consideration to the same requirements.
A. Reasonable Diligence
Orndorff argues that the circuit court’s failure to award
her a new trial denied her the constitutional right to present a
defense. She asserts that she exercised reasonable diligence
before trial in securing the opinions of qualified medical
expert witnesses to determine whether she had a mental condition
that might support an insanity defense. Orndorff contends that
the circuit court and the Court of Appeals did not adequately
consider the fact that these expert witnesses were unable to
render a diagnosis of DID until the appearance of her “alter”
personalities after the guilt phase of the trial. Orndorff
further maintains that the DID diagnosis was only one part of
the after-discovered evidence, which also showed that at the
time of the shooting one of her “alter” personalities committed
the offense.
In response, the Commonwealth argues that Orndorff failed
to exercise reasonable diligence in considering the implications
22
of the evidence already known to her before trial. The
Commonwealth contends that because this evidence, including the
“911” conversation in which she asked for her “mommy,” showed
that Orndorff had experienced dissociative episodes, her expert
witnesses could have reached a diagnosis of DID before the trial
began. We disagree with the Commonwealth’s arguments.
We previously have discussed the scope of the reasonable
diligence requirement as it pertains to a motion for a new trial
based on after-discovered evidence. In Mason v. Commonwealth,
154 Va. 890, 894-95, 153 S.E. 684, 685 (1930), we stated that
[w]hat is reasonable diligence depends upon the facts
and circumstances of each particular case; the burden
is on the mover to show to the court that he has
exercised due or reasonable diligence to ascertain
relevant facts before trial, and that such diligence
did not reveal the existence of, nor show the
probability of the existence of, the evidence now
relied upon.
We conclude that the same definition of reasonable
diligence applies to a moving party’s duty to ascertain relevant
expert opinions based on the facts of a case. Thus, in the
present case, it was insufficient for Orndorff merely to prove
that she could not have discovered the evidence of her DID by
the exercise of reasonable diligence. She also was required to
show that she actually attempted to secure such evidence in a
diligent and timely manner but was prevented from obtaining the
evidence for a particular reason. See Lewis v. Commonwealth,
23
209 Va. 602, 609, 166 S.E.2d 248, 253 (1969); Fulcher, 208 Va.
at 38, 155 S.E.2d at 365.
We hold that the Court of Appeals erred in concluding that
Orndorff failed to exercise such reasonable diligence in
obtaining psychiatric and psychological evidence for her
defense. Orndorff consulted Dr. Fiester, a forensic
psychiatrist and authority on personality disorders, and Dr. van
Gorp, a clinical psychologist, neuropsychologist, and an
authority on malingering. Both experts were asked to determine
whether Orndorff had any psychiatric or psychological disorders
that might be relevant to her defense.
These medical experts performed a thorough analysis based
on the available facts, including the “911” telephone
conversation and their personal interviews and testing of
Orndorff, and submitted their findings to Orndorff’s counsel.
Dr. Fiester and Dr. van Gorp specifically concluded that
although Orndorff had experienced dissociative episodes, she did
not suffer from DID or any other mental disorder that could
potentially support an insanity defense.
According to these witnesses, Orndorff’s disorder was not
fully revealed until after she manifested the personality of a
12-year-old child following the jury verdict in the guilt phase
of the trial. When asked to explain why he had not identified
this condition earlier, Dr. van Gorp testified that a diagnosis
24
of DID “can only be made when [a patient’s] various alters, or
separate personalities, emerge.” Dr. Fiester likewise stated
that DID can only be diagnosed when there is “the presence of a
separate identity.”
The Court of Appeals, however, held that Orndorff did not
meet the reasonable diligence component of the Odum test because
her experts could have discovered earlier the several symptoms
of DID that they later identified. We disagree with this
holding because it improperly shifted the focus of the
reasonable diligence inquiry by effectively assigning to
Orndorff’s counsel the responsibility for reaching a different
medical diagnosis.
The reasonable diligence inquiry addresses the sufficiency
of counsel’s actions, not the actions of medical professionals
retained by counsel. Thus, although counsel may be required
under the facts of a given case to obtain additional or
different expert opinions to satisfy counsel’s duty of due
diligence, defense counsel’s efforts here were sufficient. The
particular areas of specialty held by Dr. Fiester and Dr. van
Gorp directly involved the medical issues presented in this
case, and they both conducted a thorough and well-reasoned
analysis of those issues in their evaluations of Orndorff’s
condition.
25
While Dr. Dell and Dr. Lowenstein testified at the
sentencing phase that Orndorff exhibited clear symptoms of DID
before trial, their suggestion that the DID illness could have
been diagnosed earlier did not shift that duty of evaluating the
various symptoms from Orndorff’s medical experts to her counsel.
Therefore, we conclude that when presented with Dr. Fiester’s
and Dr. van Gorp’s opinions that Orndorff did not have a mental
disorder that might support an insanity defense, Orndorff’s
counsel reasonably relied on those opinions and were not
required to seek the opinions of other experts. Accordingly, we
hold that the Court of Appeals erred in concluding that Orndorff
failed to meet the “reasonable diligence” requirement for a new
trial based on after-discovered evidence.
B. Materiality
We next consider the Court of Appeals’ holding that
Orndorff failed to satisfy the “materiality” requirement of the
Odum test. Orndorff contends that the circuit court abused its
discretion in denying her motion for a new trial by relying on
the failure of the jury to mitigate her punishment after hearing
evidence of her mental illness in the sentencing phase of the
trial. Orndorff maintains that the correct standard for
determining whether to grant a new trial is whether a new,
unbiased jury would have accepted her evidence of an insanity
defense.
26
The Commonwealth replies that the circuit court and the
Court of Appeals properly relied on the jury’s apparent
rejection of the DID evidence at the sentencing phase in
determining whether another jury would reach a different result
on the merits at a new trial. The Commonwealth also notes that
it presented substantial testimony at the sentencing phase to
counter Orndorff’s evidence, and that this evidence further
supports the circuit court’s denial of the new trial motion. We
disagree with the Commonwealth’s arguments.
As stated above, under the “materiality” requirement of the
Odum test, Orndorff was required to prove that the evidence in
question 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. This established standard has also been
expressed as requiring that the evidence be such that it “ought
to produce opposite results on the merits” at another trial.
Lewis v. Commonwealth, 209 Va. at 608-09, 166 S.E.2d at 253
(quoting Reiber v. James M. Duncan, Jr. & Assocs., Inc., 206 Va.
657, 663, 145 S.E.2d 157, 162 (1965)).
When, as here, 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 the
evidence presented in determining whether the moving party has
27
satisfied the materiality standard articulated in Odum. See
Fulcher, 208 Va. at 38, 155 S.E.2d at 365; Independent Cab Ass’n
v. LaTouche, 197 Va. 367, 377-78, 89 S.E.2d 320, 327 (1955);
Henry v. Commonwealth, 195 Va. 281, 294, 77 S.E.2d 863, 871
(1953); Zimmerman v. Commonwealth, 167 Va. 578, 586-87, 189 S.E.
144, 148 (1937); Holmes v. Commonwealth, 156 Va. 963, 969, 157
S.E. 554, 556 (1931). Thus, when a circuit court is presented
with conflicting evidence in considering a motion for a new
trial, 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. See Zimmerman,
167 Va. at 587, 189 S.E. at 148; Holmes, 156 Va. at 969, 157
S.E. at 556.
In the present case, the circuit court did not weigh the
conflicting evidence at issue but instead relied on the jury’s
apparent rejection of the mitigation evidence presented during
the sentencing phase. We conclude that the circuit court’s
reliance on the jury’s sentencing decision was error because the
court substituted in place of its own judgment the reaction of a
jury that had already resolved crucial credibility issues
against Orndorff in the guilt phase of trial. Under the Odum
test, the circuit court was required to make its own
determination whether a new jury that had not previously
considered the evidence in the case should reach a different
28
result on the merits at a new trial. 225 Va. at 130, 301 S.E.2d
at 149.
We further conclude that the Court of Appeals erred in
approving the circuit court’s judgment on the same basis as that
articulated by the circuit court. Because the circuit court
employed an improper legal standard in exercising its
discretionary function, the standard of appellate review
examining whether the court abused its discretion could not be
applied. See Thomas v. Commonwealth, 263 Va. 216, 233, 559
S.E.2d 652, 661 (2002). Instead, the proper remedy for the
circuit court’s error was to remand the case to that court for
proper application of the Odum materiality test based on the
conflicting evidence already offered regarding the new trial
motion. Thus, we now direct that this case be remanded to the
circuit court so that the court may take this action to
determine whether Orndorff, the moving party on the new trial
motion, has met her burden of satisfying the Odum materiality
requirement.2
We decline the Commonwealth’s request that we also decide
the question of law whether a defendant who suffers from DID and
commits an act allegedly performed by one of the defendant’s
2
In light of our holding, we need not address Orndorff’s
additional contention that the Court of Appeals construed her
introduction of mitigating evidence at the sentencing phase as
an implied waiver of her right to present that evidence to a new
jury in a new trial.
29
“alter” personalities may assert an insanity defense at a
criminal trial on those charges. Because the circuit court did
not rule on this issue, we will not resolve it here, nor will we
speculate whether the circuit court will be required to reach
that issue in conducting its “materiality” analysis on remand.
We emphasize, however, that the appellate courts of this
Commonwealth have not yet decided this issue. In addition, we
note that our review of the decisions of other jurisdictions
reveals an absence of any consensus regarding the recognition of
a DID-based insanity defense. See, e.g., United States v.
Denny-Shaffer, 2 F.3d 999, 1016 (10th Cir. 1993) (insanity
defense should have been submitted to jury based on evidence
that defendant’s “host” personality was not in control of
“alter” personality and was not aware of “alter” personality’s
control of defendant’s physical actions); Kirkland v. State, 304
S.E.2d 561, 564 (Ga. Ct. App. 1983) (criminal responsibility of
defendant must be assessed according to defendant’s state of
mind under personality acting at time crime committed); State v.
Halcomb, 510 N.W.2d 344, 351 (Neb. Ct. App. 1993) (defendant
criminally responsible for actions because irrespective whether
“alter” personality acted in commission of crimes, defendant
alone committed those acts and there was no evidence that he met
criteria for insanity defense); State v. Grimsley, 444 N.E.2d
1071, 1075-76 (Ohio Ct. App. 1982) (criminal responsibility of
30
defendant is determined based on whether defendant was aware of
actions of “alter” personality controlling her behavior so as to
render those actions product of her own volition); State v.
Greene, 984 P.2d 1024, 1029 (Wash. 1999) (declining to adopt
specific legal standard for assessing sanity of criminal
defendant suffering from DID due to inadequacy of legal
authority on subject and insufficiency of record before court);
State v. Lockhart, 542 S.E.2d 443, 455 (W. Va. 2000) (refusing
to adopt any specific test for admission of expert testimony in
DID cases and holding that such testimony must be evaluated on
case-by-case basis).
VI.
In conclusion, we hold that the Court of Appeals did not
err in approving the circuit court’s determination that Orndorff
was competent to stand trial in the sentencing phase of the
proceedings. We further hold, however, that the Court of
Appeals erred in approving the part of the circuit court’s
judgment holding that Orndorff failed to meet her burden of
proving the “reasonable diligence” component of the Odum test.
We also hold that the Court of Appeals erred in approving the
part of the circuit court’s judgment that misapplied the
“materiality” component of the Odum test. For these reasons, we
will affirm in part, and reverse in part, the Court of Appeals’
judgment. We will remand the case to the Court of Appeals for
31
further remand to the circuit court for application of the
“materiality” component of the Odum test and any other
proceedings as may be necessary in accordance with the
principles expressed in this opinion.
Affirmed in part,
reversed in part,
and remanded.
32