COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank, Humphreys,
Clements, Felton, Kelsey and Haley
Argued at Richmond, Virginia
JANICE LARUE ORNDORFF
OPINION BY
v. Record No. 1325-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 14, 2005
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
William B. Moffitt; Henry W. Asbill, pro hac vice (Cozen
O’Connor, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Judith W. Jadgmann, Attorney General; Margaret
Reed, Assistant Attorney General, on briefs), for appellee.
This matter comes before the Court on a rehearing en banc from a divided panel opinion
rendered November 23, 2004. In that opinion, a panel of this Court considered Janice Larue
Orndorff’s (appellant) appeal of the trial court’s decision to deny her motion for a new trial
following her convictions for second-degree murder pursuant to Code § 18.2-32 and the use of a
firearm in the commission of murder pursuant to Code § 18.2-53.1. Appellant contends evidence
was discovered after the jury returned its verdict that established she suffered from Dissociative
Identity Disorder (DID) (formerly known as multiple personality disorder or MPD), that such a
disorder constitutes a legal defense to murder, and that she was, therefore, entitled to a new trial.
The panel agreed and reversed the trial court’s denial of her motion for a new trial, vacated her
convictions for second-degree murder and use of a firearm in the commission of murder, and
remanded for a new trial.
By order dated December 28, 2004, we granted the Commonwealth’s petition for a
rehearing en banc, stayed the mandate of the panel decision, and reinstated the appeal. Upon
rehearing en banc, we affirm the trial court’s denial of appellant’s motion for a new trial and
affirm her convictions.1
In accord with familiar principles of appellate review, we will view the evidence, and all
reasonable inferences flowing from the evidence, in a light most favorable to the Commonwealth
as the prevailing party in the trial court. Banks v. Commonwealth, 41 Va. App. 539, 543, 586
S.E.2d 876, 877 (2003).
I. Background
The evidence established that, in early 2000, appellant and her husband were having
severe marital problems. She believed that he was having an affair. She told her mother-in-law
that she would “see him dead before he [left her] for another woman.” She then contacted
Thomas George Underwood (Underwood), a lawyer, and requested him to represent her “if it
came to divorce.” He declined to do so and offered to refer her to another lawyer. Underwood
spoke to appellant again on March 20, 2000, the day of the murder, to inform her that the divorce
lawyer he contacted could not see her for several days. Appellant “sounded fine” and said she
was going to dinner with her husband for their anniversary. That same day, appellant’s husband
told his mother that “things are worse, I’ve had all I can take, I’m leaving [appellant] tonight.”
1
Appellant contends we lack jurisdiction to hear the case en banc because we failed to
order the en banc rehearing within twenty days of the panel decision as required by Rule 5A:34.
We disagree. Rule 5A:34 provides that “[a] rehearing en banc on motion of the Court of Appeals
shall be ordered no later than 20 days after the date of rendition of the order to be reheard.” By
its plain terms, Rule 5A:34 applies only when a rehearing en banc is scheduled by the Court on
its own motion. Here, the Court did not order a rehearing en banc on its own motion; rather, the
Commonwealth petitioned for the rehearing. Thus, the time limit prescribed by Rule 5A:34 does
not apply.
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After returning home from dinner, appellant shot and killed her husband. He was shot
five times: once in the top of his head, three times in his torso, and once in his left palm. He was
found dead on the kitchen floor with a baseball bat in his left hand and a knife in his right hand.
At 8:37 p.m., appellant called Underwood and told him that she shot her husband because
he attacked her with a baseball bat and knife. Underwood advised her to call 911 immediately
and request an ambulance. A few minutes later, appellant called 911 and told the operator that
her husband attacked her with a baseball bat and knife and that she had shot him. The 911 call
was tape recorded and entered into evidence at trial.
During the phone call to 911, appellant’s actions fluctuated among periods of lucidity,
hysteria, disorientation, and childishness. At times, she spoke calmly and slowly and called the
operator by name. At other times, she seemed unable to discern to whom she was speaking. She
requested to speak to her “mommy,” and at one point appeared to be speaking to her mother
directly. She also cried hysterically and stated, “He is going to kill me.” When the operator
asked her location in the house, appellant replied that she was unsure where she was. Later, she
told the operator that she was in the study. The operator also asked her where her husband was
located, and appellant replied that he was on the kitchen floor. Later, she claimed that she did
not know where he was. The operator asked appellant whether she had called Underwood before
she called 911.2 Appellant denied making the call. At times, she failed to answer the operator’s
questions.
While appellant was on the phone with the 911 operator, police officers gathered outside
her house. First Sergeant Robert J. McHale (McHale) tried to coax appellant out of the house.
She approached the front door and then returned to the residence. Eventually, appellant “bolted
out of the residence.” McHale ran to meet her and led her to his police cruiser. McHale stated
2
Underwood also called 911 to ensure an ambulance was sent to appellant’s residence.
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that appellant continuously yelled and screamed that her husband was trying to kill her as she
came out of the house. McHale, after detecting a “strong odor of alcohol,” asked her whether
she had been drinking. Appellant “very calmly” replied that she drank a “couple of glasses of
wine” with dinner, but “then went back into he’s trying to kill me.” McHale said he found the
sudden changes in appellant’s demeanor—from hysterical to calm and back to hysterical again—
“kind of strange.” Other witnesses on the scene—including Underwood, Bo Longston, a
paramedic, and appellant’s son, Kurt Bond—reported that appellant was “not making any sense”
and exhibited signs of disorientation and hysteria.
Before trial, defense counsel gave notice that appellant intended to present psychiatric
and psychological evidence to rebut the anticipated position of the Commonwealth that her
behavior the night of the murder was an act designed to deceive the police. Defense counsel
conceded that they were not raising a psychiatric defense. “We are not claiming . . . that she did
not understand right from wrong, nor are we contending that she suffered from an irresistible
impulse.” The Commonwealth moved to exclude the proffered evidence.
At the pretrial hearing on the Commonwealth’s motion to exclude this testimony, mental
health experts retained by defense counsel testified about appellant’s mental state. Dr. Susan
Fiester and Dr. Wilfred van Gorp diagnosed appellant as suffering from mental disorders,
including post-traumatic stress disorder (PTSD) and dissociative disorder not otherwise specified
(DD NOS). Dr. Fiester testified that DD NOS is the diagnosis indicated when the patient’s
symptoms meet “many of the criteria of one or the other specific dissociative disorders, but
doesn’t fit it exactly.” Dr. Fiester and Dr. van Gorp based the diagnosis of DD NOS, in part, on
appellant’s inability to remember the events surrounding her husband’s death, on her behavior
during the 911 call, on transcripts of her interviews with police, on a review of her prior history
-4-
revealing that she had experienced a dissociative event after a car accident, and on lengthy
personal interviews.
Neither Dr. Fiester nor Dr. van Gorp opined that appellant suffered from DID or any
other mental disorder that would be a legal defense to the charged offenses. Dr. Fiester stated
that she found no basis to conclude that appellant “was legally insane at the time of the offense.”
There was no evidence that she did not “know the difference between right and wrong” nor was
she impelled to act by an “irresistible impulse.” The trial court granted the Commonwealth’s
motion to exclude in part. The trial court allowed appellant’s experts to explain, in general
terms, the nature of dissociative amnesia, but they were not allowed to testify specifically about
appellant’s diagnosis.
At trial, the Commonwealth argued to the jury that appellant’s post-shooting demeanor
was a ruse designed “to conceal her guilt” and that appellant planted the baseball bat and knife
after her husband had died. The Commonwealth buttressed their contention that appellant
planted the baseball bat and knife with the testimony of Dr. Carolyn Revercomb, the medical
examiner who conducted the autopsy on appellant’s husband, and First Sergeant Robert C. Zinn,
a blood stain analysis expert.
Dr. Revercomb testified that the gunshot wound to the top of the husband’s head would
have caused “[i]mmediate unconsciousness” and that it was not “likely that one would be able to
hold onto any items such as bat or knife, having sustained such a wound.” She further testified
that the gunshot wound to the husband’s left hand was “consistent with someone putting their
hand out in [a defensive] posture” and that it was “very unlikely” that he “could hold a baseball
bat with [his] hand in such a position.” Furthermore, she opined that the gunshot wound to the
left side of the husband’s torso was consistent with his “being on the ground when it was
inflicted.”
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Sergeant Zinn testified that, based on his examination and analysis of the medical
examiner’s autopsy report and photographs, police photographs of the crime scene, the
husband’s clothing, and the baseball bat, the husband could not have been holding the bat at the
time he was shot.3
Dr. William Brownlee, an expert in the field of forensic medicine, testified for appellant
and countered the Commonwealth’s theory that she doctored the crime scene. Dr. Brownlee
opined that, because the bat held by the husband was small, it could have been “easily gripped in
the fingers” despite the bullet wound to the palm of his hand. Moreover, Dr. Brownlee testified
that it was physiologically possible for the husband to continue holding the bat after the gunshot
to the head.
Defense counsel argued that appellant shot her husband “because she was afraid . . . he
was going to hurt her” and that her unusual demeanor and behavior after the shooting was not an
attempt to conceal her guilt but rather occurred because she suffered from PTSD and was
dissociating as a result of the trauma she had just experienced. Appellant did not pursue an
insanity defense.
The jury found her guilty of second-degree murder and use of a firearm during the
commission of murder.
Shortly after the jury read its verdict in the guilt phase of the trial, appellant engaged in
unusual behavior at the jail. She apparently told jail personnel that she was only twelve years old
3
Other evidence presented to the jury included the testimony of appellant’s
mother-in-law, appellant’s son Kurt Bond, and appellant’s friend Maura Jill Workman
(Workman). Appellant’s mother-in-law said that appellant told her she would rather see the
husband “dead before he [left appellant] for another woman.” When told by her mother-in-law
not to “talk like that,” appellant replied, “I can’t help it, he’s my whole life and that’s what I live
for.” Kurt Bond said that, although his stepfather would get angry about “trivial things” and
threaten to hit him, he was never hit by him and he never saw him hit appellant. Workman said
that appellant offered her $10,000 to testify that she had seen appellant’s husband physically
abuse appellant. Workman stated that she had never seen such abuse and that she rejected
appellant’s offer.
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and did not belong in the “strict school” because she had done nothing wrong. Her actions
instigated further mental health evaluations.
After examining her, Dr. Fiester informed the court that appellant was unaware that she
was an adult or where she was. “Her understanding of the situation,” Dr. Fiester testified, “was
that she’s in dire fear because she’s a child and she’s done something wrong and she has no idea
what it is and why she’s where she is.” When asked whether appellant’s condition could “raise
the spectrum of other psychiatric illnesses” besides a dissociative episode, Dr. Fiester replied that
it could, explaining:
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 a dissociative disorder.
Dr. Fiester opined that appellant had a “severe mental illness” that rendered her incompetent to
assist counsel in her defense.
Immediately upon learning of appellant’s behavior at the jail, Dr. van Gorp wrote in a
letter to defense counsel as follows:
This abrupt change in [appellant’s] mental status is a very serious
matter. It is my firm opinion that this decline and abrupt change in
her 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.
-7-
Based on these evaluations, the trial court ruled that appellant was not competent at that
time to be sentenced and ordered her committed to Central State Hospital for a mental health
evaluation pursuant to Code §§ 19.2-169.1 and 19.2-176.4
Appellant remained at Central State Hospital for eight months. Dr. Greg Wolber, chief of
the forensic evaluation team at Central State Hospital, and Dr. Daniel Sheneman, a member of
the evaluation team, diagnosed her as having PTSD and bipolar disorder. Some members of the
treatment team thought she was malingering and questioned whether she was really dissociating
at all. They opined that “a lot of her behavior was strictly manipulative and controlling . . . and
did not give credence to a true dissociative identity.”
While appellant was at Central State, Dr. Wolber consulted on his own initiative Dr. Paul
Frederick Dell, a clinical psychologist and an authority on dissociative disorders. Dr. Dell
diagnosed appellant with DID. After consulting with Dr. Dell, Dr. Fiester and Dr. van Gorp
revised their diagnosis and concurred that appellant suffered from DID. After consideration of
all the evaluations, the trial court certified pursuant to Code §§ 19.2-169.1 and 19.2-176 that
appellant was competent to be sentenced.
As a result of the new diagnosis of DID offered by Dr. Dell, Dr. Fiester, and Dr. van
Gorp, defense counsel filed a motion for a new trial prior to the commencement of the
sentencing phase. Defense counsel asked that the judge defer his ruling on the motion until
evidence of the new diagnosis was presented to the jury during the sentencing phase as
mitigating evidence. Defense counsel noted that the same evidence presented in mitigation
4
Code § 19.2-169.1 authorizes the trial court, at any time “before the end of trial,” to
commit the defendant for a competency evaluation if “there is probable cause to believe that the
defendant . . . lacks substantial capacity to understand the proceedings against him or to assist his
attorney in his own defense.” The trial court is directed to determine the defendant’s
competency after receiving a competency report from the evaluating physicians. Code
§ 19.2-176 authorizes the trial court, at any time after conviction but before sentencing, to
commit the defendant for a mental health evaluation if the judge “finds reasonable ground to
question [the defendant’s] mental state.”
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would be used to support the motion for a new trial. The trial judge agreed to the defense request
and postponed his ruling until the trial was completed.
At sentencing, the jury received psychological as well as extensive factual information
about appellant’s new diagnosis. Appellant’s experts testified that the appropriate diagnosis for
her mental state was DID. Dr. Dell based his diagnosis, in part, on his observation of classic
DID symptoms, including the presence of alter personality states, unexplained periods of
amnesia, and episodes of deafness. Regarding alter personality states, Dr. Dell stated he had “a
very clear cut encounter with three different alter personalities”: “Jacob,” a strong, forceful male
identified as the “protector” personality; “Jean Bugineau,” a French speaking personality; and
“Janice Nanney,” a twelve-year-old child. Dr. Dell noted that appellant’s “switches into a child
state” were shown in the 911 call he had reviewed earlier. Dr. Dell also noted that, “in most any
sphere of the records that you look,” examples of appellant’s amnesia could be found. The same
could be said of examples of appellant’s deafness, which Dr. Dell described as a “not uncommon
dissociative sematic symptom[].” Moreover, based on his examinations of appellant, the results
of his own testing, and the results of certain tests given to appellant by Dr. van Gorp, Dr. Dell
did not believe appellant was malingering or faking her symptoms.
In summarizing why appellant had not been diagnosed with DID before trial, Dr. Dell
cited the other experts’ “profound lack of education and failure to ask questions and inability to
recognize diagnostic signs.” He noted that reaching a correct diagnosis of DID is partly “a
function of whether . . . the clinician [] has the eyes to see” the alter personalities.
After consultation with Dr. Dell, Dr. Fiester and Dr. van Gorp revised their diagnosis and
determined that appellant met the diagnostic criteria for DID delineated in the Diagnostic and
Statistical Manual for Mental Disorders (4th ed. 1994) (DSM-IV). According to Dr. van Gorp,
the four diagnostic criteria of DID are:
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(A) the 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) at least two of these identities or personality states
recurrently take control of the person’s behavior; (C) inability to
recall important personal information that is too extensive to be
explained by ordinary forgetfulness; and ([D]) the disturbance is
not due to the direct physiological effects of a substance, for
example, blackouts or chaotic behavior during alcohol
intoxication, or a general medical condition, for example, complex
seizures.
Dr. van Gorp stated he first considered the possibility of appellant having DID only when he
“heard more episodes of the child persona coming forth” after her conviction. He noted that DID
is “a very uncommon condition” and “is not a disorder that most clinical psychologists or
psychiatrists encounter that often and so . . . the psychologist or psychiatrist often tends to know
what category the person falls into, such as dissociation, but unless what are called alters, these
various personalities, emerge, the diagnosis can’t be reached.” He minimized the importance of
appellant’s apparent personality switches during the 911 call, stating that evidence of DID was
not “manifested in the 911 tape except [for appellant’s] calling the operator ‘mommy,’” which,
in retrospect, he considered “sort of a harbinger” or “a little tip of the iceberg” of “what later
appeared to be the child personality of a twelve-year-old.” Dr. van Gorp also stated that, based
on the results of testing designed to detect malingering, appellant was not feigning her
psychiatric symptoms of DID. Dr. Fiester’s conclusions mirrored those of Dr. van Gorp and
Dr. Dell.
Dr. Richard Joseph Loewenstein, a psychiatrist and authority in the fields of trauma
disorders and dissociative disorders retained by defense counsel, also evaluated appellant and
diagnosed her with DID. He examined appellant on March 3, 2002 and encountered three
distinct personalities: the “Janice persona,” which was the “usual baseline state”; a “childlike”
alter personality; and an aggressive, self-proclaimed “protector” alter personality that “refused to
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give its name.” Dr. Loewenstein ruled out any malingering by appellant despite his usual “high
index of suspicion . . . especially in a forensic context.”
Dr. Loewenstein confirmed that DID “is a disorder that . . . appear[s] to begin in
childhood” and that most people with DID “report a history of significant childhood trauma.”
Appellant “reported a history with her own mother of significant physical punishment,
whippings with a switch, being locked for long periods of time in a room where she was not
allowed out.”5 Dr. Loewenstein also testified that appellant’s sons, in discussing their mother’s
“prior history,” reported “a large number of symptoms” on the part of their mother that were
consistent with DID, including “chronic forgetfulness,” “being found by her children in a kind of
trance state,” and being “very changeable in her behavior, at times being a very meek,
church-going person . . . and other times swearing like a sailor.”
Based on his evaluation of appellant, Dr. Loewenstein stated that it was his opinion that,
“at the time of the murder,” appellant was “overwhelmed by symptoms of” DID and that,
therefore, “her mental state at the time of the act should lead to a finding of legal insanity by
Virginia law under the ‘irresistible impulse’ test of the insanity statutes.”
After defense counsel presented the testimony of Dr. Dell, Dr. Loewenstein, Dr. Fiester,
and Dr. van Gorp to the jury as outlined above, the Commonwealth called Dr. Daniel Sheneman,
“the attending psychiatrist for the behavioral unit” at Central State Hospital and a member of
appellant’s “treating team” at that facility, as a rebuttal witness. He stated that, “other than the
Janice Orndorff [he] knew as an adult,” appellant “presented herself” only “as a
twelve-year-old[,] Janice Nanney,” during her stay at the hospital. She did so “about eight
times.” Dr. Sheneman further testified, however, that appellant did “not meet the criteria” for
5
In her initial interviews with Dr. Fiester and Dr. van Gorp before trial, appellant
reported no such child abuse.
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DID and that her symptoms could “all be explained by . . . other diagnoses” and were “related to
her personality style.”
Explaining why appellant did not “meet the . . . criteria for [DID] as outlined in the
DSM-IV,” Dr. Sheneman said, among other things, that “[t]he only alter . . . was the
twelve-year-old and according to the diagnostic criteria, you have to have more than one, which
we did not observe.” On cross-examination, Dr. Sheneman conceded that he incorrectly stated
that the diagnostic criteria in the DSM-IV requires the presence of “more than one” alter
personality. However, he was not convinced that appellant’s presentation as a twelve year old
qualified as a “personality state” or “distinct identity.” He also did not believe that appellant’s
“inability to recall important personal information” was “too extensive to be explained by
ordinary forgetfulness” as required by the DSM-IV criteria. Dr. Sheneman further stated that the
incident of child abuse appellant informed him about—where appellant’s mother “placed [her] in
a closet when she was child and there was a rat in the closet”—did not “qualif[y] as the type of
[very severe sexual or physical] abuse you would see in most people with DID.” Furthermore,
Dr. Sheneman said that the DSM-IV “specifically states . . . that you have to be careful about
diagnosing [DID] in patients that have forensic [criminal] issues that may use it for secondary
gain.”6 Based on all the factors contained in the DSM-IV and their observations of appellant’s
behavior, Dr. Sheneman and “the other members of the treatment team[] did not feel that
[appellant] met the criteria for that diagnosis” of DID.
The court also heard from Angela Valentine (Valentine), who was appellant’s cellmate
both before she was sent to Central State Hospital and after she returned. Valentine testified that
appellant told her “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.”
6
He defined “secondary gain” as a benefit accruing to the patient as a result of the
diagnosis other than the benefit to be gained by treatment of the disorder.
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After considering all the evidence, the jury sentenced appellant to thirty-two years in
prison for the murder of her husband, a sentence far in excess of the statutory minimum. The
jury also sentenced her to three years in prison for using a firearm in the commission of murder.
The trial judge also denied appellant’s motion for a new trial. In reaching that decision,
the trial judge found that, while appellant showed the purported after-discovered evidence was
not merely cumulative, corroborative or collateral, she failed to show that she could not have
obtained that evidence, which was in her control, for use at trial through reasonable due
diligence. The trial judge also found that appellant failed to show that the purported
after-discovered evidence should produce the opposite result in another trial, stating as follows:
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 trial judge sentenced appellant, in accord with the jury’s verdict, to a total sentence
of thirty-five years.
II. The Trial Court Did Not Err in Denying Appellant’s Motion for a New Trial
The law governing review of motions for new trials is well settled.
“[M]otions for new trials based on after-discovered evidence are
addressed to the sound discretion of the trial judge, are not looked
upon with favor, are considered with special care and caution, and
are awarded with great reluctance.” A party who seeks a new trial
based upon after-discovered evidence “bears the burden to
establish that the 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 due 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.”
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Commonwealth v. Tweed, 264 Va. 524, 528-29, 570 S.E.2d 797, 800 (2002) (quoting Stockton
v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387 (1984); Odum v. Commonwealth,
225 Va. 123, 130, 301 S.E.2d 145, 149 (1983)).
Appellant contends the trial court abused its discretion in denying her motion for a new
trial. Specifically, appellant argues that the trial court incorrectly concluded: (1) that she could
have secured evidence before trial that she suffered from DID through the exercise of reasonable
due diligence, and (2) that the new DID diagnosis would not produce a different result upon
retrial. We find no error in the trial court’s ruling.
A. The Trial Court Did Not Err in Finding Appellant Failed to
Exercise Reasonable Due Diligence
The record in this case supports the trial court’s finding that evidence of appellant’s DID
was discernible and available at the time of trial through the exercise of reasonable due diligence.
Although appellant was unable to obtain an expert who diagnosed the specific type of
dissociative disorder until later in the case, this does not mean that the evidence was unavailable
at the time of trial. In effect, appellant asks us to allow a different post-trial diagnosis of a
preexisting mental illness to require a new trial. This is a continuum that the law does not
encourage.
The record is replete with examples of, and information about, appellant’s dissociative
conduct and the possibility that the purported correct diagnosis of DID could have been made
before trial. At the pretrial hearing, appellant presented two mental health experts who gave
detailed opinions concerning her mental health at the time of the shooting and thereafter.7 First,
Dr. Fiester testified that, based on her interviews with appellant, which lasted over sixteen hours,
her review of appellant’s records, and the 911 call, appellant met “many of the criteria of one or
7
They also testified after appellant’s conviction and used the same background in their
revised diagnosis.
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the other specific dissociative disorders.” Dr. Fiester discussed several of appellant’s
dissociative events, including the dissociation and amnesia she experienced after an automobile
accident and the dissociative behavior evident during the 911 call. Based in part on appellant’s
significant amnesia regarding the events surrounding her husband’s death, Dr. Fiester concluded
that appellant “was in a dissociative episode for a period of time subsequent to her husband’s
death.” Dr. Fiester specifically noted that “[o]ne can experience amnesia as a part of a
dissociative disorder, sometimes referred to as multiple personality disorder.” (Emphasis
added).
Dr. van Gorp reported that, during his examination of appellant before trial, he witnessed
“an episode of dissociation by [appellant] right in my office that very day when I interviewed
her.” Describing the incident of dissociation, Dr. van Gorp said that, when he asked appellant to
describe instances where someone tried to hurt her, she repeatedly said “I don’t hear the
question” and covered her ears with her hands. After a few moments, appellant “lowered her
hands and she said, ‘Did you ask me something.’” Dr. van Gorp classified the incident as a
“classic episode of dissociation.” Dr. van Gorp also found the 911 phone call to be “very
poignant and glaring” because “addressing the 911 operator as ‘mommy’ would be a classic
dissociation.” Although Dr. van Gorp did not state that the 911 call conclusively evidenced an
alter personality, he stated that it was a “harbinger” and “a little tip of the iceberg” of the twelve
year old alter. He stated that the alter did not clearly manifest itself in the tape “except [when
appellant] call[ed] the operator ‘mommy.’” (Emphasis added).
Testifying at sentencing, Dr. Dell and Dr. Loewenstein reported that appellant presented
symptoms of DID before trial. Dr. Dell explained that the “911 tape was a very clear example of
dissociative confusion, of switches into a child state[,]” because “[t]here were times during the
phone call where she was talking with the 911 operator where she was calling for mommy,
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quote, unquote.” (Emphasis added). He also stated that “instances of dissociation, amnesia,
switches to other personalities,” and deafness were “to be found in most any sphere of the
records that you look.”
Dr. Loewenstein also stated that it was likely that appellant’s DID manifested itself
before trial. Interviews with appellant’s sons confirmed his suspicion that she experienced
symptoms of the disorder in the past. Appellant’s sons
purported a large number of symptoms that would be, actually,
quite consistent with the dissociative [identity] disorder[,]
including chronic forgetfulness to the point of forgetting a couple
of times a week that she was cooking food at home and being
found by her children in a kind of trance state and not
remembering that she had started cooking food.
The sons reported further that her behavior changed unexpectedly; “at times [she was] a very
meek, church-going person . . . and at other times swearing like a sailor.” Her sons also said that
she acted in child-like fashion at times, particularly around her daughters. None of this was
“new” evidence but clearly existed prior to trial.
Additionally, all of the experts opined that DID is an illness that develops over a long
period of time and has its etiology in childhood. Dr. Dell, in describing the failure of the other
experts to properly diagnose appellant’s true condition, listed a “profound lack of education and
inability to recognize diagnostic signs” as the basis for any possible earlier misdiagnosis. He
testified that it was clear from the transcript of the 911 call that appellant’s “alters” were present
at that time. Similarly, Dr. van Gorp found the 911 call to be a clear harbinger of appellant’s
illness and cited a lack of education and training as the main barrier to diagnosing appellant’s
DID.
Thus, even though appellant’s symptoms became more pronounced and easier to
categorize after her conviction, that fact does not mean that appellant’s illness could not have
been discovered through the exercise of reasonable due diligence and does not require that we
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reach a result different from that of the trial court. The testimony from the doctors provides clear
evidence that, if appellant does indeed suffer from DID, she exhibited the clinical symptoms of
that disease (albeit in varied forms) necessary for a correct diagnosis before trial. Such
symptoms either were present and unrecognized by appellant’s experts as significant or could
have been discovered by asking the right questions or interviewing the right people. In any
event, the diagnosis of DID was really just a different diagnosis of a known condition. We
decline to hold that affixing a new label to a known set of behavioral patterns constitutes newly
discovered “evidence.” To hold otherwise would leave the door open for a new trial with each
new diagnosis and, thus, dispense with the finality that a trial on the merits requires.
While we have not earlier addressed this specific issue, two of our sister states have
reached the same conclusion. In State v. Fosnow, 624 N.W.2d 883 (Wis. Ct. App. 2000), a
prison psychiatrist diagnosed the defendant with DID after his conviction on several felonies.
When he received the diagnosis, the defendant filed a motion to withdraw his pleas of no contest
because the new diagnosis would show he was not criminally responsible for his acts. Id. at 885.
He argued that the new diagnosis constituted newly discovered evidence that entitled him to
withdraw his earlier no contest plea. Id. However, The Court of Appeals of Wisconsin noted
that, as in the instant case, extensive psychiatric information about the defendant was available at
the time of the plea and indicated dissociative personality features and other possible DID
symptoms. Id. at 888. In other words, the main factors underlying the new diagnosis existed and
were available at the time of defendant’s initial mental examinations. Accordingly, the court
held that the new diagnosis was merely the new appreciation of the importance of existing
evidence. Id. at 887, 888. Because “[n]ewly discovered evidence . . . does not include ‘the new
appreciation of the importance of evidence previously known but not used,’” id. at 886 (quoting
State v. Bembenek, 409 N.W.2d 432, 435 (Wis. Ct. App. 1987)), the court denied defendant’s
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motion for a new trial. See also People v. McSwain, 676 N.W.2d 236, 253 (Mich. Ct. App.
2003) (“Failure to recognize a reasonably discoverable mental illness is not enough to require a
grant of postjudgment relief.”); State v. Williams, 631 N.W.2d 623, 627 (Wis. Ct. App. 2001)
(noting that an expert’s assessment of preexisting information represents a “new appreciation of
the importance of evidence previously known but not used,” not newly discovered evidence),
overruled on other grounds by State v. Morford, 674 N.W.2d 349, 362 (Wis. 2004).
In Sellers v. State, 889 P.2d 895 (Okla. Crim. App. 1995), the appellant was convicted of
three counts of murder. Id. at 896. In an application for post-conviction relief, appellant argued
that he was diagnosed after conviction with Multiple Personality Disorder (MPD) and that this
newly discovered evidence required a new trial. Id. at 897. The court held that, “[t]hough at that
time MPD was perhaps a relatively new mental disease, this fact does not provide a sufficient
explanation . . . for defense counsel’s failure to explore it” before trial because it was a
recognized diagnosis at the time of trial. Id. “Trial counsel could have, with due diligence,
discovered evidence of [appellant’s] . . . MPD prior to trial. Accordingly it was not ‘newly
discovered’ and would not warrant a new trial.” Id. at 897 n.11.
Guided by the holdings in Fosnow and Sellers, the high standard of scrutiny to be applied
to motions for a new trial based on after-discovered evidence, the broad discretion afforded the
trial judge, and the facts of this case viewed in the light most favorable to the Commonwealth,
we hold that the record here clearly supports the trial court’s determination that a diagnosis of
DID could have been made before trial with the exercise of reasonable due diligence. Because
the record supports the trial court’s ruling, we will not disturb it on appeal.
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B. The Trial Court Did Not Err in Finding Appellant Failed to Demonstrate the
Materiality of the DID Diagnosis
We also agree with the trial court that appellant failed to show the new diagnosis of DID
would have produced an opposite result at a new trial because the jury heard the evidence during
the sentencing phase and rejected it.
Pursuant to the law governing motions for a new trial, appellant must demonstrate that
the evidence in question 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. It is not enough that the evidence in
question might produce a different result. Rather, “[b]efore setting aside a verdict, the trial court
must have evidence before it to show in a clear and convincing manner ‘as to leave no room for
doubt’ that the after-discovered evidence, if true[,] would produce a different result at another
trial.” Carter v. Commonwealth, 10 Va. App. 507, 513, 393 S.E.2d 639, 642 (1990) (quoting
Powell v. Commonwealth, 133 Va. 741, 756, 112 S.E. 657, 661 (1922)).
The unique procedural posture of this case shows that appellant failed to carry her
burden. When defense counsel filed a motion requesting a new trial based on appellant’s new
diagnosis, he asked the trial court to defer ruling on the motion until after the jury could consider
the information and recommended a sentence. The evidence presented to the jury, as outlined
above, was extensive. Several psychologists and psychiatrists described in great detail the nature
of DID, appellant’s background, why her diagnosis was not made earlier, and that one of her
“alters” was responsible for the murder of her husband. Appellant’s doctors opined that
appellant was not feigning her illness. Dr. Sheneman, on the other hand, testified he thought
appellant’s behavior could be motivated by “secondary gain” and that appellant did not meet the
criteria for DID. Angela Valentine, appellant’s cellmate, testified that appellant stated she could
manipulate her behavior at will. Thus, evidence for and against the DID diagnosis, which was
simply a new label affixed to earlier known behavior patterns, was presented to the jury during
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the sentencing phase of the trial, and they found it unconvincing even as possible mitigation of
punishment. In short, the jury discounted the new diagnosis of DID and sentenced her to far in
excess of the minimum sentence for the offense. Therefore, the jury resolved the question of
whether the additional evidence would produce a different result at a new trial.
We acknowledge that the “materiality” prong of the after-discovered evidence test asks
whether the new evidence would produce a different verdict “at another trial.” The test is framed
in this manner because it is designed around the normal course of events and presumes that no
jury has weighed or considered the proffered after-discovered evidence. However, the
procedural course of this case, as dictated by the appellant’s request to allow the evidence in the
same trial, precludes the argument that the evidence should be heard by another jury in another
trial. Appellant requested this procedure and should not now be heard to challenge it.
Additionally, the materiality requirement assumes that the newly discovered evidence, is, in fact,
discovered after trial and is unavailable for the initial fact finder to consider. We agree with the
trial judge who succinctly stated that appellant failed to prove that the new evidence would
produce a different verdict at another trial because the jury heard all of the evidence underlying
her claim and discounted it. A new trial presenting the same evidence to a new jury would not
produce a different result. See Odum, 225 Va. at 130, 301 S.E.2d at 149.
III. The Trial Court Did Not Err in Ruling that Appellant’s Experts Could Not Testify that
Her Mental Illnesses Was the Basis for Inconsistencies in Her Behavior
Appellant next contends the trial court erred by failing to allow her experts to testify that
her mental illness was a basis for several inconsistencies in her behavior, including the 911 call
made on the night of the murder. We disagree.
“The admission of expert testimony is committed to the sound discretion of the trial
judge, and we will reverse a trial court’s decision only where that court has abused its
discretion.” Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992). “It is well settled
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that an expert may not express an opinion as to the veracity of any witness.” Davison v.
Commonwealth, 18 Va. App. 496, 504, 445 S.E.2d 683, 688 (1994) (internal quotations
omitted). “An expert witness may not express an opinion as to the veracity of a witness because
such testimony improperly invades the province of the jury to determine the reliability of the
witness.” Pritchett v. Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208 (2002).
The appellant proffered that her experts would give an explanation other than “intentional
fabrication” for several of her actions subsequent to her husband’s death. In effect, as the trial
court found, appellant wished to put on expert testimony “that she [was] in a dissociative state
and that she’s suffering from amnesia and it is not because she’s lying.” Although the trial court
allowed the experts to testify as to the general effect of trauma and that some lay observers might
consider a dissociative act to be faking, he would not allow expert testimony which would
comment on the credibility of the appellant’s statements. See id. (“[A]n expert may testify to a
witness’s or defendant’s mental disorder and the hypothetical effect of that disorder on a person
in the witness’s or defendant’s situation, so long as the expert does not opine on the truth of the
statement at issue.”). This ruling was consistent with law and preserved the issue of the
credibility of appellant’s statements for the jury. We find no error in the trial court’s ruling.
IV. The Trial Court Did Not Err in Finding Appellant Competent for Sentencing
Lastly, appellant contends that the trial court erred in sentencing her because she was
incompetent. We disagree.
The party alleging incompetency has the burden to prove it by a preponderance of the
evidence. See Code § 19.2-169(E). The United States Supreme Court has held that “the
standard for competency to stand trial is whether the defendant has ‘sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as
well as factual understanding of the proceedings against him.’” Godinez v. Moran, 509 U.S.
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389, 396 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). The trial court’s
competency finding is a question of fact and is reviewed under a plainly wrong standard. See
Delp v. Commonwealth, 172 Va. 564, 570-71, 200 S.E. 594, 596 (1939); see also Naulty v.
Commonwealth, 2 Va. App. 523, 524, 346 S.E.2d 540, 542 (1986). The evidence, viewed in a
light most favorable to the Commonwealth, establishes that appellant was competent to be
sentenced.
Appellant was sent to Central State Hospital for a post-trial evaluation pursuant to Code
§§ 19.2-169.1 and 19.2-176. Dr. Wolber and the Central State treatment team submitted a report
stating that appellant was competent to be sentenced. Two of the doctors involved in the report
were called by defense counsel and questioned at length. The doctors pointed out that the
dissociative episodes appellant demonstrated were generally quite brief, lasting from just five to
six minutes. They also stated that appellant could be easily refocused and that she could avoid
dissociative episodes by not putting her head down. The doctors also opined that a “lot of her
behavior was strictly manipulative and controlling” and that there was a volitional component to
her dissociative episodes. Although appellant’s experts put on evidence supporting a different
conclusion, the trial court was free to accept or reject their opinions in whole or in part. Miller v.
Cox, 44 Va. App. 674, 680, 607 S.E.2d 126, 129 (2005). Credible evidence supports the trial
court’s finding of competency, and we will not disturb it on appeal.
IV. Conclusion
We hold that the trial court did not abuse its discretion in denying appellant’s motion for
a new trial because she failed to show that the new diagnosis of DID could not have been made
through the exercise of reasonable due diligence and because she failed to show that the new
diagnosis would have resulted in a different verdict. We further hold that the trial court did not
err in prohibiting appellant’s experts from testifying regarding the veracity of her statements and
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in finding appellant competent for sentencing. Accordingly, we affirm appellant’s convictions
for second-degree murder and use of a firearm in the commission of murder.
Affirmed.
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Clements, J., with whom Benton and Elder, JJ., join, dissenting.
For the reasons that follow, I would hold the trial court abused its discretion in denying
appellant’s motion for a new trial based on after-discovered evidence that the psychiatric
disorder from which she suffered, namely, dissociative identity disorder, rendered her legally
insane at the time of the killing. Specifically, I would hold the trial court erred in concluding that
appellant could have secured that evidence for use at trial through the exercise of reasonable
diligence and that the admission of that evidence at another trial would not produce an opposite
result. Accordingly, I respectfully dissent from the majority’s holdings to the contrary.
Our Supreme Court has consistently held that
[m]otions for new trials based on after-discovered evidence are
addressed to the sound discretion of the trial judge, are not looked
upon with favor, are considered with special care and caution, and
are awarded with great reluctance. The applicant bears the burden
to establish that the 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 v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983) (citation omitted); see
also Commonwealth v. Tweed, 264 Va. 524, 528-29, 570 S.E.2d 797, 800 (2002). “The burden
is on the moving party to show that all four of these requirements have been met in order to
justify a new trial.” Johnson v. Commonwealth, 41 Va. App. 37, 43, 581 S.E.2d 880, 883
(2003). As the majority points out, only the second and fourth requirements are at issue in this
appeal.
Because the granting of a motion for a new trial based on after-discovered evidence is
addressed to the sound discretion of the trial court, the court’s “decision will not be reversed
except for an abuse of discretion.” Carter v. Commonwealth, 10 Va. App. 507, 514, 393 S.E.2d
639, 643 (1990). A trial court may be found to have abused its discretion if the court uses “an
- 24 -
improper legal standard in exercising its discretionary function,” Thomas v. Commonwealth, 263
Va. 216, 233, 559 S.E.2d 652, 661 (2002), or “makes factual findings that are plainly wrong or
without evidence to support them,” Congdon v. Congdon, 40 Va. App. 255, 262, 578 S.E.2d 833,
836 (2003).
A. Reasonable Diligence
As previously mentioned, a new trial will not be granted on the basis of after-discovered
evidence “unless such evidence could not have been discovered by the exercise of reasonable
diligence in time for use at the former trial[].” McClung v. Folks, 126 Va. 259, 266, 101 S.E.
345, 347 (1919). Thus, the party seeking a new trial on the ground of after-discovered evidence
must submit evidence (1) showing “that [s]he used reasonable diligence to secure [the
after-discovered] evidence before the earlier trial” and (2) “explaining why [s]he was prevented
from securing it.” Fulcher v. Whitlow, 208 Va. 34, 38, 155 S.E.2d 362, 365 (1967).
“Reasonable diligence always depends upon the facts and circumstances of the case.” McClung,
126 Va. at 266, 101 S.E. at 347.
Here, the trial court determined that appellant failed to show that the evidence that she
suffered from dissociative identity disorder at the time of the killing could not have been
discovered for use at trial through the exercise of reasonable diligence. The record, however,
does not support that determination. Indeed, the record reveals that appellant did everything that
was reasonably possible prior to trial to discover grounds for entering a plea of not guilty by
reason of insanity and that, despite those efforts, evidence supporting a diagnosis of dissociative
identity disorder did not present itself to defense counsel or the psychiatrists and psychologists
involved in appellant’s treatment and evaluation until after the guilt phase of the trial had ended.
The undisputed evidence establishes that, well before trial, appellant’s counsel retained
Dr. Fiester, a forensic psychiatrist and authority on personality disorders, and Dr. van Gorp, a
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clinical psychologist and neuropsychologist and an authority on malingering, to examine and
evaluate appellant to determine if she had any psychiatric or psychological disorders that were
relevant to her defense. Both doctors thoroughly examined and evaluated appellant and the
materials related to the case, including the tape of appellant’s 911 call. While both doctors
diagnosed appellant as having a propensity to dissociate and opined that the amnesia she
experienced regarding her husband’s murder was the result of a dissociative episode caused by
the trauma of her husband’s death, neither doctor found any evidence that would support a
diagnosis of dissociative identity disorder or any other mental illness that would permit the
reasonable assertion of an insanity defense. Thus, despite the exercise of reasonable diligence,
appellant was precluded from entering an insanity defense at trial.
As the evidence further establishes, it was not until appellant entered into a childlike state
after the jury rendered its verdict that Drs. Fiester and van Gorp encountered evidence that
indicated she might be suffering from dissociative identity disorder. Soon after observing
appellant in that state, Dr. Fiester testified that appellant’s condition raised the possibility that
appellant could have dissociative identity disorder. Upon learning of the incident, Dr. van Gorp
immediately wrote that “a multiple personality disorder must be seriously considered and
psychologically and psychiatrically ruled out.” Explaining why he had not considered the
possibility of appellant having dissociative identity disorder before then, Dr. van Gorp testified
that a diagnosis of dissociative identity disorder “can only be made when [the patient’s] various
alters, or separate personalities, emerge.” Similarly, Dr. Fiester testified that dissociative identity
disorder cannot be diagnosed “without the presence of a separate identity.” Hence, Dr. Fiester
explained, she did not have “enough information to . . . make the diagnosis” of dissociative
identity disorder until appellant presented “as a twelve-year-old girl” after her conviction.
Moreover, the evidence indicates that dissociative identity disorder is not easily diagnosed.
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Dr. Dell, who consulted with the staff at Central State Hospital during appellant’s treatment,
testified that diagnosing dissociative identity disorder is difficult because the various alter
personalities are “cautious, distrusting and hidden” and are not easily discernible, particularly to
the untrained or inexperienced eye. Thus, the record contains uncontradicted explanations as to
why the doctors earlier had not considered the possibility of appellant having dissociative
identity disorder.
The evidence also shows that appellant did not have control over the timing of the
emergence of her symptoms of dissociative identity disorder. Both Drs. Fiester and Loewenstein
testified that people with dissociative identity disorder cannot control the switching that occurs
between their alter personalities. Moreover, no psychologist or psychiatrist involved in
appellant’s treatment or evaluation found that she was malingering or otherwise had control over
the emergence of her symptoms. In fact, Dr. van Gorp, an expert in the detection of malingering,
testified that, based on the normal slow evolution of the presentation of appellant’s symptoms
and the results of specialized tests he gave her that were designed to detect malingering, he was
“convinced” appellant was not feigning her psychiatric symptoms of dissociative identity
disorder.
In relying on various “dissociative” episodes experienced by appellant before the trial as
proof that appellant “exhibited the clinical symptoms of [dissociative identity disorder] necessary
for a correct diagnosis before trial,” the majority appears to ignore the manifest distinction
between mere “dissociation” and the much more serious condition of “dissociative identity
disorder.” As Dr. Fiester testified, “dissociation,” by itself, “simply means the person doesn’t
recall” because “[t]here’s a disconnect between the emotions and actions and the conscious
awareness of [those emotions and actions.]” This was the diagnosis the doctors made before the
trial. Dissociative identity disorder, on the other hand, is, according to Dr. Fiester, a distinctive,
- 27 -
severe dissociative disorder that involves “the emergence of another part of the personality that
seems like almost a different person.”
The majority also relies on (1) Dr. Fiester’s pretrial allusion to “multiple personality
disorder” in a wide-ranging discussion of the “variety of conditions” that can “trigger amnesia,”
(2) Dr. Dell’s claim that he was able after appellant’s multiple personalities had already emerged
to retrospectively discern evidence of appellant’s alter personalities from the transcript of the 911
call, and (3) Dr. Loewenstein’s statements that some aspects of appellant’s reported behavioral
history were consistent with a diagnosis of dissociative identity disorder as grounds for
concluding that Drs. Fiester and van Gorp should have been able, prior to trial, to diagnose
appellant as suffering from dissociative identity disorder. In doing so, however, the majority
appears to inappropriately place the responsibility for exercising the requisite diligence under
Odum’s second requirement on Drs. Fiester and van Gorp, rather than on appellant and her trial
counsel, and to inappropriately employ an extraordinary, rather than reasonable, standard of
diligence. See Odum, 225 Va. at 130, 301 S.E.2d at 149 (“The applicant bears the burden to
establish that the [after-discovered] evidence . . . could not have been secured for use at the trial
in the exercise of reasonable diligence by the movant . . . .” (emphasis added)). It is
uncontroverted that the two doctors hired by appellant’s counsel to examine and evaluate
appellant before the trial were both accomplished mental health professionals who were
eminently suited for performing the task at hand. Indeed, Dr. Fiester was an authority on
personality disorders and was, in fact, a member of the “work group” that prepared the DSM-IV
“in the area of personality disorders specifically.” It is also clear from the record that Dr. van
Gorp’s and Dr. Fiester’s pretrial examinations and evaluations of appellant and the 911 call were
thorough and extensive. Moreover, Drs. Dell and Loewenstein examined appellant and the
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transcript of the 911 call after, and with knowledge of, the post-conviction emergence of
appellant’s alter personalities, a benefit Drs. Fiester and van Gorp did not have before trial.
Furthermore, the majority’s reliance on the out-of-state decisions it cites is, in my
opinion, misplaced. The Wisconsin cases cited by the majority, State v. Fosnow, 624 N.W.2d
883 (Wis. Ct. App. 2000), and State v. Williams, 631 N.W.2d 623 (Wis. Ct. App. 2001),
overruled on other grounds by State v. Morford, 674 N.W.2d 349, 362 (Wis. 2004), are factually
dissimilar from this case, and the Oklahoma and Michigan cases cited by the majority, Sellers v.
State, 889 P.2d 895 (Okla. Crim. App. 1995), and People v. McSwain, 676 N.W.2d 236 (Mich.
Ct. App. 2003), are likewise inapposite.
In Fosnow, where the defendant had a lengthy history of mental illness and it was known
prior to his guilty plea that he heard “voices,” had significant “memory lapses,” suffered from
“traumatic” childhood abuse, and had “imaginary friends” who made him “do bad things,” the
court concluded that “Fosnow and his trial counsel were aware of a possible [dissociative
identity disorder] diagnosis from [one of the examining psychiatrist’s] report and did not choose
to obtain additional evaluations that might have supported it [prior to entry of the guilty plea].”
624 N.W.2d at 889-91. In Williams, the purported newly discovered evidence was “simply [the
psychologist’s] assessment of pre-existing information, the same information [previously
reported and] utilized by [the physician who originally examined the petitioner].” 631 N.W.2d at
627. In each case, unlike in this case, the purported newly discovered evidence was “previously
known but not used.” Fosnow, 624 N.W.2d at 886. In other words, it was merely a reassessment
of the same evidence that had been discovered earlier, which is not the case here.
In McSwain, where the defendant was diagnosed with having dissociative identity
disorder more than eight years after her conviction, the court concluded that, while there was
considerable evidence in the record regarding the defendant’s “current mental condition,” the
- 29 -
record failed to establish she suffered from dissociative identity disorder at the time of the
offense or trial. 676 N.W.2d at 254-55. In Sellers, the defendant claimed in his application for
post-conviction relief based on newly discovered evidence solely that his multiple personality
disorder could not have been discovered prior to trial because the disorder was “greatly
misunderstood and often misdiagnosed.” 889 P.2d at 897. Summarily rejecting Sellers’s claim
without setting forth or addressing any evidence relative thereto, the court simply ruled that,
while “perhaps a relatively new mental disease,” multiple personality disorder was a “recognized
illness which defense counsel could have investigated.” Id. Neither of the issues upon which
these cases turned is on point here.
Because the record conclusively demonstrates that appellant used reasonable diligence
prior to trial in seeking evidence that could reasonably serve as a basis for an insanity plea and
explains why, despite that reasonable diligence, she was prevented from securing such evidence
until after her conviction, I would hold that the trial court abused its discretion in finding
appellant failed to meet her burden of establishing that the evidence that she suffered from
dissociative identity disorder “could not have been secured for use at the trial in the exercise of
reasonable diligence by [her].” Odum, 225 Va. at 130, 301 S.E.2d at 149.
B. Materiality and Effect at Another Trial of the After-Discovered Evidence
Pursuant to the fourth requirement for obtaining a new trial based on after-discovered
evidence, the defendant must establish that such evidence “is material, and such as should
produce opposite results on the merits at another trial.” Id. (emphasis added). This
“well-settled” standard has also been stated to require that the evidence be such that it “‘ought to
produce opposite results on the merits’” at another trial. Lewis v. Commonwealth, 209 Va. 602,
608-09, 166 S.E.2d 248, 253 (1969) (emphasis added) (quoting Reiber v. Duncan, 206 Va. 657,
663, 145 S.E.2d 157, 162 (1965)). It is not enough, therefore, for the defendant to simply show
- 30 -
that the evidence in question might produce an acquittal. Indeed, “[b]efore setting aside a
verdict, the trial court must have evidence before it to show in a clear and convincing manner ‘as
to leave no room for doubt’ that the after-discovered evidence, if true[,] would produce a
different result at another trial.” Carter, 10 Va. App. at 513, 393 S.E.2d at 642 (quoting Powell
v. Commonwealth, 133 Va. 741, 756, 112 S.E. 657, 661 (1922)).8
Here, the trial judge, observing that the jury recommended a heavy sentence for
appellant, concluded that the purported after-discovered evidence “would not produce opposite
results on the merits at another trial” because the jury heard at the penalty phase the
after-discovered evidence, including that appellant “had [dissociative identity disorder], that
8
I cite to Carter because it is a prior opinion from this Court concerning after-discovered
evidence. I note, however, that the efficacy of this quotation may be problematic when the issue
does not involve perjury. This quotation in Carter is based upon the following language in
Powell, which concerned new evidence being offered to establish perjury:
The courts properly require that it shall be made to appear
affirmatively that the new evidence tending to show the mistake or
the perjury, beyond question exists and is not a mere matter of
belief or opinion, before they will grant the relief in such cases.
Where the ground is perjury, the old rule was that the witness must
appear of record to have been convicted of the perjury or his death
must have rendered conviction impossible, before it could be
regarded as good ground for the new trial. The modern rule is not
so strict. By the preponderance of authority it seems to be
sufficient if the court has evidence before it which establishes the
existence of the evidence relied on to show the perjury or mistake,
in such a clear and convincing manner as to leave no room for
doubt as to the existence of the evidence so relied on, and the court
is satisfied that the evidence is not collusive, that it seems to be
true, and ought, if true, to produce on another trial an opposite
result on the merits.
133 Va. at 755-56, 112 S.E. at 661 (emphases added). In short, the Powell opinion concerns
evidence to “show . . . perjury,” and it uses the “clear and convincing” standard to refer “to the
existence of the evidence” that is offered to support the request for a new trial. Id. at 756, 112
S.E. at 661 (emphasis added).
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there were multiple personalities, [and that] . . . another personality is the one that committed the
murder.”
Initially, I would hold the trial court abused its discretion in relying on the jury’s apparent
rejection of appellant’s mitigating evidence at sentencing as grounds for concluding that such
evidence would not produce a different result at the guilt phase. The correct standard is not
whether the jury that convicted the defendant without benefit of the after-discovered evidence
would, after hearing the new evidence, recommend a lenient sentence, but, rather, whether the
new evidence “is material, and such as should produce opposite results on the merits at another
trial,” with a new jury. Odum, 225 Va. at 130, 301 S.E.2d at 149 (emphasis added).
The circumstances of this case exemplify the underlying rationale and merits of that
distinction. Before sentencing, the jury heard no evidence regarding appellant’s psychological
state at the time of the killing. Because the evidence that later supported a diagnosis of
dissociative identity disorder had not been discovered, appellant’s experts were limited during
the guilt phase of the trial to providing a general discussion of the nature of dissociative amnesia
as a possible explanation of appellant’s unusual post-killing behavior. Rejecting that explanation
and appellant’s claim of self-defense in favor of the Commonwealth’s argument that appellant’s
unusual post-killing behavior was an attempt to cover up a malicious killing, the jury convicted
her of murder. After appellant’s alter personalities emerged, she filed a motion requesting a new
trial based on the after-discovered evidence. She asked that the trial court defer ruling on the
motion for a new trial until after presentation of her evidence in mitigation of the offense since
the same evidence would be used to support the motion. The trial judge agreed that his ruling on
the motion should be deferred “until the trial is completed.” Having previously found appellant
to be a murderer and a liar, the jury, not unsurprisingly, found her belated mitigating evidence of
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insanity unpersuasive.9 Indeed, the change in appellant’s theory of defense might itself have
adversely affected the jury’s perception of her character. Regardless, the jury’s sentencing
verdict clearly is not a reliable indicator of how a new, untarnished fact finder would view such
evidence “at another trial” where insanity was at issue in the guilt phase. Id.
Evidence reasonably offered to support a defendant’s claim that he or she was legally
insane at the time of the alleged offense has long been recognized in Virginia as being material
to the issue of the defendant’s guilt. See Boswell v. Commonwealth, 61 Va. (20 Gratt.) 860,
874-76 (1871) (“If [the defendant] relies on the defence of insanity, he must prove it to the
satisfaction of the jury. If, upon the whole evidence, they believed he was insane when he
committed the act, they will acquit him on that ground.”); Evans-Smith v. Commonwealth, 5
Va. App. 188, 196, 361 S.E.2d 436, 441 (1987) (“Evidence is material if it relates to a matter
properly at issue.”).
Virginia law recognizes two tests by which an accused can
establish criminal insanity, the M’Naghten Rule and the irresistible
impulse doctrine. The irresistible impulse defense is available
when “the accused’s mind has become ‘so impaired by disease that
he is totally deprived of the mental power to control or restrain his
act.’”
9
The majority points out that the jury heard testimony during the sentencing phase of the
trial from Dr. Sheneman that appellant did not meet the criteria for dissociative identity disorder
and from appellant’s cellmate that appellant said she could manipulate her apparent personalities
at will. However, the jury also heard Dr. Sheneman testify that he had only experienced one of
appellant’s alter personalities and had mistakenly believed that dissociative identity disorder
required two alter personalities in addition to the host personality. Dr. Sheneman also testified
that neither he nor the other member of appellant’s treatment team specialized in dissociative
disorders and that they did not perform any psychological testing on appellant during her stay at
Central State Hospital, relying instead on Dr. van Gorp’s testing. Moreover, the jury heard
Dr. Fiester testify that she would not be surprised to learn that someone suffering from
dissociative identity disorder had told others that she could manipulate her alter personalities,
because people who have dissociative identity disorder are frightened by the effects of the
disorder and, as a means of coping with their fear, want to believe they “have control over this
process” when, in actuality, they do not. Dr. Fiester further testified that some alter personalities,
particularly the protective ones, feel they are in control even though, in actuality, they cannot
“control switching.”
- 33 -
Bennett v. Commonwealth, 29 Va. App. 261, 277, 511 S.E.2d 439, 446-47 (1999) (quoting
Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d 368, 370 (1986) (quoting Thompson
v. Commonwealth, 193 Va. 704, 716, 70 S.E.2d 284, 292 (1952))).
The after-discovered evidence in this case consists of substantive information, in the form
of expert-witness testimony and proffered evidence, indicating that appellant suffered from
dissociative identity disorder at the time of the shooting and that one or more of her alter
personalities, other than the host or baseline personality of Janice Orndorff, was responsible for
committing the charged offenses. The after-discovered evidence also indicates that appellant
was not malingering in her presentation of dissociative identity disorder symptoms, that she was
unable to control the switching between the alter personalities within her, that her alter
personalities recurrently took control of her behavior, and that her host personality of Janice had
no memory of her husband’s murder. Dr. Loewenstein testified that one of appellant’s protector
alter personalities admitted to killing appellant’s husband to protect the host personality.
Dr. Loewenstein stated in his affidavit that, upon his forensic evaluation of appellant, he
concluded that, at the time of the killing, appellant “suffered from an impulse that was sudden,
spontaneous, and unpremeditated.” Dr. Loewenstein further concluded that appellant was so
“overwhelmed” by symptoms of dissociative identity disorder and other less severe mental
disorders and “so impaired by these diseases of the mind[,] that she was deprived of the mental
power to control or restrain her acting to harm [her husband].” Dr. Loewenstein also concluded
that appellant was suffering from an irresistible impulse when she shot her husband and was,
thus, legally insane at the time of the killing.
Although it is within the province of the fact finder to decide whether appellant’s mind
was “‘“so impaired by disease that [she was] totally deprived of the mental power to control or
restrain”’” herself from acting at the time of the offenses, if true, Dr. Loewenstein’s testimony
- 34 -
and affidavit, in combination with the other after-discovered evidence presented in this case,
present a viable defense of legal insanity under the doctrine of irresistible impulse. Bennett, 29
Va. App. at 277, 511 S.E.2d at 447 (quoting Godley, 2 Va. App. at 251, 343 S.E.2d at 370
(quoting Thompson, 193 Va. at 716, 70 S.E.2d at 292)). I would hold, therefore, that the
after-discovered evidence is material to the issue of appellant’s guilt and is sufficient to “show in
a clear and convincing manner ‘as to leave no room for doubt’ that the after-discovered evidence,
if true[,] would produce a different result at another trial.” Carter, 10 Va. App. at 513, 393
S.E.2d at 642 (quoting Powell, 133 Va. at 756, 112 S.E. at 661).
The Commonwealth argues that, as a matter of law, the after-discovered evidence does
not provide a valid defense of legal insanity under the irresistible impulse doctrine because “the
evidence overwhelmingly established that subsequent to the alleged irresistible impulse the
defendant doctored the scene of the crime . . . and called her attorney for assistance.” I disagree.
While it is true, generally, that, as logic dictates, “the lack of restraint inherent in an
impulsive act is inconsistent with a contemporaneous concealment of the impulsive act,” Vann v.
Commonwealth, 35 Va. App. 304, 314, 544 S.E.2d 879, 883 (2001), here, given the volatile,
“switching” nature of appellant’s mental disorder, the fact that appellant called her attorney and
“doctored the scene of the crime” after the shooting does not mean that she was not acting
pursuant to an irresistible impulse when she shot her husband. As previously noted, people with
dissociative identity disorder cannot restrain their alter personalities from recurrently taking and
relinquishing control of their behavior. The shifts between and among the alter personalities can
occur very quickly. Furthermore, as Dr. Loewenstein testified, the switching by the alter
personalities tends to increase when the host personality is frightened.
Thus, the record supports the finding that, as the Commonwealth appears to concede, the
phone call to appellant’s attorney and any manipulation of the crime scene by appellant occurred
- 35 -
“subsequent to the . . . irresistible impulse” that resulted in the killing. That is to say, after
killing appellant’s husband, appellant’s alter personalities relinquished control of her behavior,
leaving her “behind to attempt to deal with what happened.” The post-shooting phone call and
any manipulation of the scene do not change the fact that, having had her behavior taken over by
one or more of her protector alter personalities at the time of the shooting, appellant herself was
not responsible for shooting her husband. Hence, as a matter of logic, Vann would not apply.
The record also supports the converse finding that, as Drs. Loewenstein’s and Dell’s
testimony appears to suggest, appellant’s alter personalities continued to control her behavior
following the shooting. According to Dr. Loewenstein, one of appellant’s protector alter
personalities stated that he directed appellant to call her attorney after the shooting. Dr. Dell
testified that appellant was still being controlled by her alter personalities well after the shooting
during the 911 call. Clearly, appellant may not be held accountable under Vann for the phone
call to her attorney and for doctoring the crime scene if, as during the shooting, her actions were
still being controlled by her alter personalities at the time. Like the shooting itself, such actions
would be the product of an irresistible impulse.
Thus, under either interpretation of the facts, the evidence of appellant’s post-shooting
phone call to her attorney and doctoring of the crime scene does not alter my conclusion that the
after-discovered evidence provides appellant a valid defense of legal insanity under the
irresistible impulse doctrine. To conclude otherwise would defy logic and elevate form over
substance.
Hence, I would hold that appellant met her burden of establishing that the
after-discovered evidence “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.
- 36 -
C. Conclusion
Having concluded that appellant met the requirements necessary to obtain a new trial
based on after-discovered evidence, I would hold the trial court abused its discretion in refusing
to grant appellant a new trial. Accordingly, I would reverse the trial court’s denial of the motion
for a new trial, vacate appellant’s convictions for murder in the second degree and use of a
firearm in the commission of murder, and remand this case for retrial.10
10
Because it is unlikely they would arise again on retrial in the same context, if at all, I
find it unnecessary to address the other issues raised in this appeal.
- 37 -
Tuesday 28th
December, 2004.
Janice Larue Orndorff, Appellant,
against Record No. 1325-02-4
Circuit Court Nos. CR47787 and CR47788
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner,
Frank, Humphreys, Clements, Felton and Kelsey
On December 7, 2004 came the appellee, by the Attorney General of Virginia, and filed a
petition praying that the Court set aside the judgment rendered herein on November 23, 2004, and grant
a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered
herein on November 23, 2004 is stayed pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve
additional copies of the appendix previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Alexandria, Virginia
JANICE LARUE ORNDORFF
OPINION BY
v. Record No. 1325-02-4 JUDGE JEAN HARRISON CLEMENTS
NOVEMBER 23, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
William B. Moffitt; Henry W. Asbill, pro hac vice (Asbill Moffitt &
Boss, Chtd., on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Margaret Reed, Assistant Attorney General, on
brief), for appellee.
Janice Larue Orndorff was convicted in a jury trial of murder in the second degree, 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. On appeal, Orndorff contends the trial court erred in (1) denying her motion
for a new trial based on after-discovered evidence that she suffered from a psychiatric disorder
that rendered her legally insane at the time of the offenses, (2) limiting her opportunity to present
expert-witness testimony on her post-homicide conduct, and (3) proceeding to the sentencing
phase of the trial despite evidence showing she was incompetent to stand trial. Finding the trial
court abused its discretion in not granting Orndorff a new trial based on after-discovered
evidence that, at the time of the killing, she suffered from an irresistible impulse resulting from
dissociative identity disorder, formerly known as multiple personality disorder, we reverse the
trial court’s denial of the motion for a new trial, vacate the convictions, and remand for a new
trial. Because it is unlikely they will arise again on retrial in the same context, if at all, our
decision makes it unnecessary to address the other issues raised in this appeal.
I. BACKGROUND
“Under familiar principles of appellate review, we view the evidence and all reasonable
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d
876, 877 (2003).
Orndorff was indicted by a Prince William County grand jury for the first-degree murder
of her husband, Goering Orndorff, in violation of Code § 18.2-32, and the use of a firearm during
the commission of murder, in violation of Code § 18.2-53.1.
Pretrial, defense counsel notified the Commonwealth that Orndorff intended “to
introduce psychiatric and psychological evidence concerning [her] amnesia” to rebut the
Commonwealth’s anticipated position that Orndorff’s post-shooting demeanor and conduct on
the night of the homicide was an act intended to deceive both the investigators of the alleged
crime and the jury. Such evidence, defense counsel stated, was not intended for the purpose of
raising a psychiatric defense. “We are not claiming,” defense counsel continued, “that she did
not understand right from wrong, nor are we contending that she suffered from an irresistible
impulse.” The Commonwealth moved to exclude Orndorff’s psychiatric and psychological
evidence.
At a pretrial hearing on the Commonwealth’s motion, Drs. Susan J. Fiester and
Wilfred G. van Gorp, mental-health experts retained by defense counsel to perform psychiatric
and psychological evaluations of Orndorff to determine if she had any psychiatric or
psychological disorders relevant to the charged offenses, opined, based on their separate
examinations of Orndorff and materials related to this case, including the tape of Orndorff’s call
-2-
to 911, that Orndorff had a propensity to dissociate her emotions and actions from her conscious
awareness and experienced, among other mental-health-related conditions, a “dissociative state”
subsequent to and precipitated by the trauma of her husband’s death. That dissociative state, the
doctors further testified, caused her inability to recall her prior actions that evening, including the
shooting. Dr. van Gorp, a clinical psychologist and neuropsychologist, testified that
a person who is experiencing a dissociative episode in the moment
will get somewhat confused. They will be regressed, and regressed
is a term of art meaning somewhat immature or infantile in their
presentation, and they may or may not have some recall of events
that happened five minutes ago, but they will be overall confused.
So they will come across as a confused person, and may be
inconsistent in their recall.
Dr. Fiester, a forensic psychiatrist, testified that “[d]issociation doesn’t mean the person’s not
capable of directed action. It simply means the person doesn’t recall. There’s a disconnect
between the emotions and actions and the conscious awareness of [those emotions and actions.]”
Neither expert diagnosed Orndorff as suffering from dissociative identity disorder or any other
mental disorder that rose to the level of a stand-alone defense to the criminal charges brought
against her. Dr. Fiester testified that she found “no evidence that [Orndorff] was legally insane
at the time of the offense,” including no evidence of either irresistible impulse or Orndorff’s
inability to “know the difference between right and wrong” at the time of the killing. The trial
court ruled that the doctors would be permitted to explain generally at trial the nature of
dissociative amnesia but not to testify that they had actually examined or diagnosed Orndorff.
During the guilt phase of the jury trial, the following evidence was presented: Orndorff
married her husband in 1993. In early 2000, the marriage began to unravel. At that time,
Orndorff began calling her mother-in-law “a couple of times a week complaining about
[Orndorff’s husband].” Orndorff told her mother-in-law that “she thought he had a girlfriend,
thought he was running around with a woman.” During one of their conversations, Orndorff told
-3-
her mother-in-law she knew he was “out with that woman again” and she would “see him dead
before he [left her] for another woman.” Orndorff’s mother-in-law did not take Orndorff’s
statement seriously, believing instead that Orndorff was simply trying to “scare him into not
leaving her.” When told by her mother-in-law not to “talk like that,” Orndorff replied, “I can’t
help it, he’s my whole life and that’s what I live for.” Orndorff “consistently told [her
mother-in-law] that she loved Goering” and “Goering told [his mother] he loved [Orndorff],
too.”
During that same time period, Orndorff contacted Thomas George Underwood, a friend
and local attorney who was representing her concerning a “property related problem” and who
had previously represented her husband in traffic and financial matters. Orndorff asked
Underwood if he could represent her “if it came to divorce.” Orndorff “reported to [Underwood]
that Goering had started drinking again and she was concerned about his activities,” including
his going away for a weekend without telling her where he was going. She was also concerned
“for the safety of [her] boys,” who were living with them. According to Underwood, Orndorff
was “so concerned” about how her husband’s activities “would affect her,” she had Underwood
prepare a will for her on March 1, 2004, leaving everything to her three children. He suggested
she hire a private detective if she was concerned about her husband having an affair. However,
believing his “representation of [Orndorff’s husband] was close enough that [he] shouldn’t get
involved in [the divorce],” Underwood told Orndorff he could not represent her in the divorce
action but could refer her to a divorce lawyer.
During the afternoon of March 20, 2000, Underwood called Orndorff and told her the
divorce lawyer to whom he had referred her could not see her “for a week or ten days.” Orndorff
told Underwood that “would be all right” because her pregnant daughter was “scheduled to be
induced” in two days and she was going to be in Baltimore, Maryland for the birth. Orndorff
-4-
told the lawyer that “she was going out for dinner for her anniversary with Goering” that night.
According to Underwood, Orndorff was not upset or angry at the time and “sounded fine.”
That same day, Orndorff’s mother-in-law called Orndorff’s husband at work and asked
how he and Orndorff were doing, because she “knew they had been having problems.”
Orndorff’s husband responded, “[M]om, . . . things are worse, I’ve had all I can take, I’m leaving
tonight.”
Testifying on his mother’s behalf, Judd Lee Bond, Orndorff’s teenage son who lived with
Orndorff and her husband at their house in Manassas, Virginia, stated that, later that evening, he
heard his mother and stepfather return home after going out for their anniversary dinner. When
they entered the house, Judd Bond heard his stepfather yelling and angrily “stomping around.”
Frightened and unable to “stand it anymore,” he left and went to a friend’s house.
Judd Bond also testified that, in January 2000, his stepfather had begun to drink alcohol
after abstaining from doing so for many years. Judd Bond also testified that his stepfather was
“becoming more violent” and that he and his brother “were terrified of him.” Recounting an
episode in which, during a physical confrontation, his stepfather had threatened to kill him, Judd
Bond testified that, sometime between January 2000 and March 2000, he had removed the
bullets from his stepfather’s automatic pistol because he “was afraid to have a loaded gun in the
house that he owned.”
At 8:37 p.m. on March 20, 2000, Orndorff called Underwood. She reported that she had
shot her husband, saying he had come at her with a knife and a baseball bat. She said her
husband was still alive and asked the lawyer to come to the house. When he asked her if she had
called for an ambulance, she said she had not. He told her to call for one right away. The call
lasted “[l]ess than a minute.” Because Orndorff sounded “hysterical” and “appeared to be
upset,” Underwood called 911 to make sure an ambulance was sent to the house.
-5-
After talking to Underwood, Orndorff called 911 at 8:39 p.m. She told the 911 operator
her husband had come after her with a baseball bat and a knife and she had shot him. She also
told the operator she was afraid to come out of hiding in the house because her husband was still
alive, had gained possession of the gun, and was trying to kill her. At numerous points during
the call, Orndorff cried hysterically without responding to the operator’s questions and
repeatedly and rapidly asked for help, stating, “He is going to kill me.” At other times during the
call, she spoke slowly and more calmly, telling the operator that “he” took her knife and a
baseball bat and was going to kill her and that she did not know whether she was sitting down
but she could feel the carpet with her hands and her legs. Several times during the call, she
asked for her mother and appeared to be speaking directly to her mother on one occasion. On
several occasions, she appeared not to know with whom she was speaking. Other times, she
called the operator by name. At times, she spoke loudly; other times, she whispered and said she
could not talk because “he” would hear her. Asked by the operator whether she had called
Underwood earlier, Orndorff said she knew Underwood but had not called him. Asked by the
operator where in the house Orndorff’s husband was, Orndorff initially indicated he was on the
“kitchen floor” and later said she did not know where he was. Asked where in the house she
was, Orndorff indicated it was dark and said she did not know where she was. Later, she
indicated she was in the study and that she could hear the front door being opened. After further
discussion about her fear of being killed by her husband, Orndorff indicated she had started to go
to the front door but then returned to her hiding place. At approximately 9:25 p.m., Orndorff
went to the front door and exited the house. First Sergeant Robert J. McHale, who had been
waiting behind his cruiser on the road in front of the house, ran to her and led her up the street to
a police cruiser.
-6-
The 911 operator who handled Orndorff’s call, Constance Palmore, testified that, while
she was on the phone with Orndorff, she “had no reason to doubt [Orndorff’s] claims of being
afraid.” She further testified that Orndorff’s call was unlike any other call she had received in
her fifteen years of taking calls for the police department because Orndorff could not “pinpoint
where she was in her own home.” She also found it “a little odd” that Orndorff had called
Underwood before calling 911.
First Sergeant McHale testified that, before Orndorff came out of the house through the
front door, another police officer had approached the house and opened the front door. McHale
further testified that, approximately a minute before Orndorff eventually came out of the house,
he saw her approach the open front door with a cordless telephone in her hand. McHale
motioned with his hands for her to come out. Rather than leaving the house, however, Orndorff
turned around and disappeared from McHale’s sight. McHale further testified that, the next time
Orndorff approached the front door, she “bolted out of the residence.” According to McHale,
when he met her and guided her away from the house, Orndorff was “screaming” that her
husband was going to kill her. She was “hysterical” and “continued,” McHale testified, “to yell
and scream.” However, McHale further testified, when, after noticing a “strong odor of alcohol”
coming from her, he asked if she had been drinking that night, she “very calmly” stated that she
had had a “couple of glasses of wine” with dinner and “then went back into he’s trying to kill
me.” McHale testified he found the sudden changes in Orndorff’s demeanor—from hysterical to
calm and back to hysterical again—“kind of strange.”
After talking to Orndorff and calling 911, Underwood went to Orndorff’s house, arriving
“shortly after 9:00 p.m.” He saw “police officers all over the place.” When he first saw
Orndorff, she was “on the floor of the back seat” in a police car that had been driven partway
down the street away from the house. Underwood observed that she was “crying” and “shaking
-7-
and whimpering.” She was unresponsive when he spoke to her. After Orndorff received
medical treatment from a paramedic at the scene, Underwood observed that “[s]he was still
hysterical and not making sense.” According to Underwood, Orndorff was still in that condition
when he left shortly after 11:00 p.m.
Bo Longston, the paramedic who rendered medical treatment to Orndorff that night,
testified Orndorff was “freaking out” at the time. He also testified she was “agitated” and
“visibly upset.” “She was,” Longston testified, “scared like you would see on TV, as opposed to
what I’ve seen in the past.”
Testifying on his mother’s behalf, Kurt Bond, Orndorff’s other teenage son who lived
with Orndorff and her husband, stated that, when he first saw his mother that night upon
returning home from a meeting, she was in the back of a police car in “a fetal position, crying
and shaking.” He further testified that, when the police allowed him to join his mother in the
police car, she did not initially recognize him and was “hysterical, just crying and not making
any sense, screaming, ‘Help me. Help me. He’s going to hurt me. He’s going to hurt me.’”
Kurt Bond noticed that his mother had bruises on “the inside of her thigh” and “on [her] left
arm.” He further testified that, when one of the detectives told Orndorff later that night that her
husband was dead, she “broke down again” and “accuse[d] the police of killing him.”
Kurt Bond also testified that, when he left the house shortly after 7:00 p.m. on March 20,
2000, to attend a meeting, he observed that the telephone book on the table near the kitchen was
open, although he did not know to which page. He further testified that, between January 2000
and March 2000, he was “frightened” of his stepfather because he had started drinking and
would get angry about “trivial things” and “threaten to hit” him. According to Kurt Bond,
however, his stepfather never hit him and he never saw him hit Orndorff.
-8-
After Orndorff left the house, the police unsuccessfully attempted “to establish contact
with anybody that may have been in the residence at that point.” Concerned that “somebody
may have . . . a weapon inside,” the police “deploy[ed] gas into the residence.” After allowing
time for the gas to take effect, the police SWAT team entered the house around 1:00 a.m. Inside,
they found Orndorff’s husband dead, lying on the kitchen floor with a baseball bat in his left
hand. He had been shot five times, once in his left palm, thrice in his torso, and once in the top
of his head. The police also observed a handgun on the table in the kitchen and a telephone book
on a nearby table open to the page that included Underwood’s telephone number. Later, after
lifting the body, the police discovered a knife in the decedent’s right hand. The police also
subsequently recovered Orndorff’s will “torn in half in the family room.”
Dr. Carolyn Revercomb, the medical examiner who conducted the autopsy on the
decedent, testified that the wound to the top of his head would have caused “[i]mmediate
unconsciousness” and that it was not “likely that one would be able to hold onto any items such
as a bat or knife, having sustained such a wound.” Dr. Revercomb further testified that the
gunshot wound to the decedent’s left hand was “consistent with someone putting their hand out
in [a defensive] posture” and that it was “very unlikely” that he “could hold a baseball bat with
[his] hand in such a position.” Dr. Revercomb also testified that the gunshot wound to the left
side of the decedent’s torso was consistent with his “being on the ground when it was inflicted.”
First Sergeant Robert C. Zinn, a blood-stain-analysis expert with the Prince William
County Police Department, testified that, based on his examination and analysis of the medical
examiner’s autopsy report and photographs, the police’s photographs of the crime scene, the
decedent’s clothing, and the baseball bat, the decedent could not have been holding the bat at the
time he was shot.
-9-
Testifying on behalf of Orndorff, Dr. William Brownlee, an expert in the field of forensic
medicine, opined that, because the bat found in the decedent’s left hand was small, it could
“easily be gripped in the fingers,” thus, exposing the palm of the hand to a bullet wound.
Dr. Brownlee further testified that one holding a bat in such a manner would not necessarily drop
the bat if a bullet entered the palm because the bullet would irritate the muscles in the forearm
causing the fingers to go into spasm and strongly grasp the bat. Dr. Brownlee also opined that it
was physiologically possible for the decedent to continue to grasp the knife in his right hand
despite being shot in the head and falling to the floor and that inserting the knife in his hand after
he had been shot would have “left physical evidence of someone doing that on the floor.”
The evidence also established that, during their marriage, Orndorff and her husband were
motorcycle enthusiasts who participated in a number of “charity rides” sponsored by Payne’s
Biker Bar in Leesburg, Virginia. Maura Jill Workman, a former owner and manager of the bar,
testified that she knew Orndorff and her husband from the “charity rides” and that both were
friends of hers. She further testified that, in July 2000, Orndorff came to the bar, told Workman
that she was facing life imprisonment, and offered to pay Workman $10,000 to testify that she
had seen her husband physically abuse her. Workman testified that she had never seen such
abuse and rejected the offer.
At one point in the trial, when the bat and knife were being displayed to the jury,
Orndorff “became visibly upset.” She began to shake and weep uncontrollably, fell to the floor,
and said repeatedly, “[K]eep him away from me. He’s going to kill me.”
In closing argument to the jury, counsel for the Commonwealth argued, inter alia, that
Orndorff’s post-shooting demeanor was a ruse designed “to conceal her guilt.” Defense counsel
argued, inter alia, that Orndorff shot the decedent “because she was afraid . . . he was going to
hurt her” and that Orndorff’s unusual demeanor after the shooting was not an attempt to conceal
- 10 -
her guilt but occurred because she was dissociating as a result of the trauma she had just
experienced. After deliberating, the jury found Orndorff guilty of second-degree murder and of
using a firearm during that murder.
A few days later, as the penalty-determination phase of the trial was about to begin,
defense counsel informed the court that it had been reported to them that, almost immediately
after the conviction, Orndorff had engaged in unusual behavior at the jail. She had apparently
told jail personnel that she was only twelve years old and did not belong in the “strict school”
because she had done nothing wrong.
After examining Orndorff, Dr. Fiester testified that Orndorff was not aware that she was
an adult or of where she was. “Her understanding of the situation,” Dr. Fiester testified, “was
that she’s in dire fear because she’s a child and she’s done something wrong and she has no idea
what it is and why she’s where she is.” When asked whether Orndorff’s condition could “raise
the spectrum of other psychiatric illnesses” besides a dissociative episode, Dr. Fiester replied that
it could, explaining:
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 a dissociative disorder.
Dr. Fiester opined that Orndorff had a “severe mental illness” that rendered her incompetent to
assist counsel in her defense.
Immediately upon learning of Orndorff’s behavior at the jail, Dr. van Gorp wrote in a
letter to defense counsel as follows:
This abrupt change in Ms. Orndorff’s mental status is a
very serious matter. It is my firm opinion that this decline and
abrupt change in her 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
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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.
The trial court found Orndorff to be incompetent to stand trial and ordered her committed
to Central State Hospital for a mental health evaluation. Orndorff remained in treatment at
Central State Hospital for eight months, at which point, the trial court agreed with the doctors at
the hospital that Orndorff was competent to stand trial.
Prior to the recommencement of the trial, Orndorff filed a motion requesting a new trial
due to after-discovered evidence. At the beginning of the penalty-determination phase of the
trial, defense counsel asked that the trial court defer ruling on the motion for a new trial until
after presentation of Orndorff’s evidence in mitigation of the offense since the same evidence
would be used to support the motion. The trial judge agreed that his ruling on the motion should
be deferred “until the trial is completed.”
After the Commonwealth represented that Orndorff had no criminal record, the following
evidence was presented to the jury: Toward the end of Orndorff’s stay at Central State Hospital,
Dr. Greg Wolber, the Chief of the Forensic Evaluation Team at the hospital, consulted, on his
own initiative, with Dr. Paul Frederick Dell, a clinical psychologist and an authority on
dissociative disorders. Based on his examination of Orndorff, Dr. Dell diagnosed her as
suffering from dissociative identity disorder. During subsequent examinations, Dr. Dell had “a
very clear-cut encounter with three different alter personalities” of Orndorff. “The first,”
according to Dr. Dell, “was a personality named Jacob who is apparently male and who was very
strong, forceful, given to speaking constantly with cuss words and who . . . [was] angry,
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confronting, challenging, tough.” According to Dr. Dell, Jacob was Orndorff’s “angry
protector,” the alter personality that is usually “created in childhood” as a result of abuse and has
“the job . . . of coming out and absorbing physical punishment that was more than the child could
take.” The second alter personality encountered by Dr. Dell was “a character named Jean
Bugineau,” who “insisted on speaking French.” The third alter personality was “a part” named
“Janice Nanney” who was “twelve-and-a-half years old.”
Dr. Dell also testified that dissociative identity disorder is difficult to diagnose because
the different alter personalities “do not generally go around advertising their presence. They are
cautious, distrusting and hidden.” Dr. Dell explained that, “if parts come out that do not say,
hello, you know, I’m Fred, and instead just come out and talk and don’t visibly appear to be
particularly different from the host personality, you won’t pick them out.” Dr. Dell further
explained that dissociative identity disorder “arises as a result of recurrent childhood trauma,
usually at the hands of a parent, and what you’re dealing with is the long-term aftereffect of child
abuse.” Thus, Dr. Dell continued,
[b]y the time an individual shows up in therapy as an adult, we
now have somebody who is in their 20s or 30s or 40s or 50s where
the original multiplicity originated somewhere around the age of
five, give or take a year or two, and this person has been
functioning as a covert, hidden person with multiple personality
disorder for decades, but parts are very used to being hidden.
Dr. Dell further testified that it was evident to him from the transcript of the tape of
Orndorff’s call to 911 on the night of the shooting that “switches” between Orndorff’s alter
personalities were “occurring during the conversation so that at times there is a child alter
speaking to the 911 operator” and, “during much of the tape, [she] is not aware that her husband
is dead” and has “no idea where she is.” Dr. Dell also testified that, based on his examinations of
Orndorff, the results of his own testing, and the results of certain tests given to Orndorff by
Dr. van Gorp, he did not believe Orndorff was malingering or faking her symptoms.
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After consultation with Dr. Dell, Drs. van Gorp and Fiester concurred in his diagnosis
that Orndorff suffered from dissociative identity disorder.
Relying on the Diagnostic and Statistical Manual for Mental Disorders (4th ed. 1994)
(DSM-IV), Dr. van Gorp testified that the four diagnostic criteria of dissociative identity disorder
are:
(A) the 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) at least two of these identities or personality states
recurrently take control of the person’s behavior; (C) inability to
recall important personal information that is too extensive to be
explained by ordinary forgetfulness; and ([D]) the disturbance is
not due to the direct physiological effects of a substance, for
example, blackouts or chaotic behavior during alcohol
intoxication, or a general medical condition, for example, complex
seizures.
Dr. van Gorp explained that, with dissociative identity disorder, “there is a host
personality and this is usually the person who’s been the lifelong person that most people know;
but there are alternate personalities.” The alter personalities, Dr. van Gorp further explained, are
“walled off usually from the conscious experience of the host personality,” but “[a]s the person
becomes more and more stressed and symptomatic, . . . they can intrude [on the host personality]
and the person will switch into another personality.” Each of these alter personalities,
Dr. van Gorp explained, “has his or her own basic memories and so forth.”
Dr. van Gorp further testified that he first considered the possibility of Orndorff having
dissociative identity disorder only when he “heard more episodes of the child persona coming
forth” after her conviction. Dr. van Gorp explained that dissociative identity disorder is “a very
uncommon condition” and “is not a disorder that most clinical psychologists or psychiatrists
encounter that often and so . . . the psychologist or psychiatrist often tends to know what
category the person falls into, such as dissociation, but unless what are called alters, these
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various personalities, emerge, the diagnosis can’t be reached.” A diagnosis of dissociative
identity disorder, Dr. van Gorp emphasized, “can only be made when these various alters, or
separate personalities, emerge.” Additionally, Dr. van Gorp testified, “it’s very common for a
person with dissociative identity disorder to not exhibit the complex of symptoms until you see
the person over time and many contacts and the symptoms often evolve.” Thus, Dr. van Gorp
explained, while the tape of the 911 call clearly contained indications of dissociation, evidence of
dissociative identity disorder was not “manifested in the 911 tape except [for Orndorff’s] calling
the operator ‘mommy,’” which, in retrospect, was “sort of a harbinger” or “a little tip of the
iceberg” of “what later appeared to be the child personality of a twelve-year-old.” Dr. van Gorp,
an authority in the field of malingering detection, also testified, that, based on the results of
specialized tests designed to detect malingering and the slow evolution of the presentation of her
symptoms, he was “convinced” Orndorff was not feigning her psychiatric symptoms of
dissociative identity disorder.
Dr. Fiester, an authority on personality disorders, testified that she reached the diagnosis
of dissociative identity disorder only after seeing Orndorff present “as a twelve-year-old girl”
after her conviction and learning of the subsequent reemergence of the same alter personality
“soon after that.” Only then, Dr. Fiester testified, did she have “enough information to . . . make
the diagnosis.” Dissociative identity disorder, Dr. Fiester explained, cannot be diagnosed
“without the presence of a separate identity.” Dr. Fiester further testified that, in addition to
Orndorff’s “host state” and the twelve-year-old girl alter personality, at least two other alter
personalities have since emerged, a “hostile” alter personality and a “French” alter personality.
Dr. Fiester also testified that are several types of dissociative disorders, each with its own
“specific set[] of symptoms.” One type, according to Dr. Fiester, are dissociative states, which
are “limited” and occur simply when “[t]he person can dissociate, say, be driving . . . and end up
- 15 -
somewhere and have no idea how they got there.” Dissociative identity disorder, on the other
hand, Dr. Fiester testified, involves “the emergence of another part of the personality that seems
like almost a different person.” “[P]ersonality disorders,” Dr. Fiester explained, unlike episodic
mental illnesses such as “significant depression,” are “ongoing, enduring” disorders that are
“traits of the person, sort of characteristics of the person’s style and functioning,” and “are
present over years, ever since adulthood.”
Dr. Fiester further testified that she would not be surprised to learn that someone
suffering from dissociative identity disorder told others that “she could make herself be twelve
years old,” because people who have dissociative identity disorder are frightened by the effects
of the disorder and, as a means of coping with their fear, want to believe they “have control over
this process” when, in actuality, they do not. Furthermore, Dr. Fiester testified, some alter
personalities, particularly the protective ones, feel they are in control even though, in actuality,
they cannot “control switching.”
Dr. Richard Joseph Loewenstein, a psychiatrist and authority in the fields of trauma
disorders and dissociative disorders, testified that he was retained by defense counsel to evaluate
Orndorff and that, in performing a psychiatric examination of her on March 3, 2002, he
encountered three distinct personalities within Orndorff: the “Janice persona,” which was the
“usual baseline state”; a “childlike” alter personality; and an aggressive, self-proclaimed
“protector” alter personality that “refused to give its name.” According to Dr. Loewenstein, the
protector alter personality that refused to give its name called the Janice personality “The Kid”
and the childlike alter personality “Squirt.” The unnamed protector alter personality also
referred to another alter personality named “Jean” as “Frenchman” or “Frog” and stated that
there were other alter personalities but “the rules” prevented it from telling Dr. Loewenstein who
they were. That reluctance to share information, Dr. Loewenstein testified, was “quite typical of
- 16 -
bona fide [dissociative identity disorder] individuals,” as there are “often various kinds of codes
of secrecy with the dissociative identity disorder individual.” Dr. Loewenstein further testified
that, based on his examination, he diagnosed Orndorff as suffering from dissociative identity
disorder, among a number of other less severe psychiatric disorders. Dr. Loewenstein stated that,
despite his usual “high index of suspicion for [malingering] especially in a forensic context,” he
was able to rule out any malingering by Orndorff.
Dr. Loewenstein also stated that people with dissociative identity disorder
experience themselves . . . like a collection of people, sort of like
the bleachers at [a baseball] [s]tadium where there are different
people kind of jumping across each other, leaping out, grabbing the
hot dog vendor, and so they may experience themselves as several
entities at the same time who control each other or say things that
another part of them experiences as they are saying it, but they
have no control over it and then they feel that their thoughts are
being withdrawn or that, in fact, their body is controlled by another
entity.
The “shifts in personality,” Dr. Loewenstein testified, can “range . . . from seconds occasionally
to minutes.” Dr. Loewenstein further explained that “research and clinical works suggest that
it’s unusual for full control to exist for long periods of time without at least other alter identities
manifesting themselves indirectly through the one that is out.”
Dr. Loewenstein further testified that people with dissociative identity disorder “are often
very sensitive to violent situations, cues that will remind them of traumas that they have
experienced” in the past. Thus, Dr. Loewenstein testified, “in frightening or violent or dangerous
environments, they may begin to switch much more, . . . becom[ing] increasingly ill in the sense
that they’re switching uncontrollably or in ways that are very maladaptive for them.”
Dr. Loewenstein further stated that dissociative identity disorder “is a disorder that . . .
appear[s] to begin in childhood” and that most people with dissociative identity disorder “report
a history of significant childhood trauma.” Orndorff, Dr. Loewenstein testified, “reported a
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history with her own mother of significant physical punishment, whippings with a switch, being
locked for long periods of time in a room where she was not allowed out.” Dr. Loewenstein also
testified that, in discussing their mother’s “prior history,” Orndorff’s sons reported “a large
number of symptoms” on the part of their mother that were consistent with dissociative identity
disorder, including “chronic forgetfulness,” “being found by her children in a kind of trance
state,” and being “very changeable in her behavior, at times being a very meek, church-going
person . . . and other times swearing like a sailor.”
Dr. Loewenstein further testified on cross-examination that, although the Janice
personality had no memory of the shooting, the protector alter personality that would not identify
itself appeared to have “a very clear recollection at least of its own of what happened that night”
and “described in detail the shooting episode as a narrative event.” According to
Dr. Loewenstein, the unnamed protector alter personality told him that
there was a terrible fight that was going on between her and her
deceased husband; that he was drunk; that he was confronting
her. . . .
. . . “The Kid” was attempting to fight back. She never
fought back. She poured beer on him but she didn’t throw the beer
bottle. . . . [T]he Frenchman, Jean, . . . and [the unnamed protector
alter personality] both fought back against the husband; . . . they
found a gun that had been hidden behind a bread box in the kitchen
. . . [by] the Defendant. . . .
. . . [The unnamed protector alter personality] and Jean
were standing between the deceased husband and the Defendant;
. . . the Defendant was being “protected by them”; . . . [the
unnamed protector alter personality] and Jean shot the husband;
. . . Janice came back and told the husband to stop; . . . he kicked
her.
Then the personality Jean and [the unnamed protector alter
personality] continued to shoot the husband and . . . he continued
to come after her with his knife and later with a baseball bat
despite having been shot repeatedly and . . . he still lay on the floor
bleeding for some time and then . . . [the unnamed protector alter
personality] and Jean left and left “The Kid” behind to attempt to
deal with what happened[;] . . . “The Kid” still didn’t know her
husband was dead.
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Dr. Loewenstein further testified that the unnamed protector alter personality also told
him that
[the unnamed protector alter personality] shot [the husband] in the
hand; that despite that he was able to clutch his knife; that he
switched the knife from hand to hand and later on picked up the
baseball bat and . . . was threatening to kill her still, even though he
was bleeding and[;] . . . that she had not altered the position of the
body.
Dr. Loewenstein also testified that the Janice personality did not tell him about calling
her attorney after the shooting but told him that, because “she was anticipating some kind of
trouble,” she opened the telephone book before she and her husband went out for their
anniversary dinner, pointed Underwood’s number out to her sons, and told them to call him if
there were any problems. According to Dr. Loewenstein, the unnamed protector alter personality
told him that, after the shooting, “the Janice personality was confused about what happened,” so
the unnamed protector alter personality “pointed out the number in the book, indicated it for her
to look at,” and told her to call her lawyer, who then told her to call 911.
Testifying as a rebuttal witness for the Commonwealth, Dr. Daniel Sheneman, “the
attending psychiatrist for the behavioral unit” at Central State Hospital and a member of
Orndorff’s “treating team” at that facility, stated that, “other than the Janice Orndorff [he] knew
as an adult,” Orndorff “presented herself” only “as a twelve-year-old; Janice Nanney” during her
stay at the hospital. She did so, Dr. Sheneman testified, “about eight times.” Dr. Sheneman
further testified, however, that Orndorff did “not meet the criteria” for dissociative identity
disorder and that her symptoms could “all be explained by . . . other diagnoses” and were
“related to her personality style.” Explaining why Orndorff did not “meet the . . . criteria for
dissociative identity disorder as outlined in the DSM-IV,” Dr. Sheneman stated that “[t]he only
alter . . . was the twelve-year-old and according to the diagnostic criteria, you have to have more
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than one, which we did not observe.” However, during cross-examination, Dr. Sheneman
responded to defense counsel’s questioning as follows:
[DEFENSE COUNSEL]: Now, you suggested that the
DSM criteria for dissociative identity disorder required three
personalities?
[WITNESS]: I said more than one. I think you have to
have two or more.
[DEFENSE COUNSEL]: Well, Ms. Orndorff as Ms.
Orndorff is one personality; is she not?
[WITNESS]: Yes.
[DEFENSE COUNSEL]: And Ms. Orndorff as a
twelve-year-old is another distinct personality; is it not?
[WITNESS]: If you are under the opinion that that is an
alter; yes.
[DEFENSE COUNSEL]: So, it only requires one alter, am
I right? That’s what the diagnosis requires, not two?
[WITNESS]: Two or more distinct identities. So, I guess
technically that is correct.
[DEFENSE COUNSEL]: So, if you said that it required
more than one alter, you would be wrong, am I right?
[WITNESS]: It requires two or more personalities.
[DEFENSE COUNSEL]: If you said it required two alters,
you would be wrong, right?
[WITNESS]: I guess that is correct.
Dr. Sheneman further testified on cross-examination that he was not convinced that
Orndorff’s presentation as a twelve year old was a “personality state” or “distinct identity” and
that he did not believe that Orndorff’s “inability to recall important personal information” was
“too extensive to be explained by ordinary forgetfulness.” Dr. Sheneman also testified that
neither he nor the other member of Orndorff’s treatment team specialized in dissociative
- 20 -
disorders and that they did not perform any psychological testing on Orndorff during her stay at
Central State Hospital, relying instead on Dr. van Gorp’s testing. Dr. Sheneman further stated
that Orndorff told him about an incident during her childhood in which her mother “placed [her]
in a closet when she was child and there was a rat in the closet.” Such conduct, Dr. Sheneman
opined, constituted “significant” child abuse but did not “qualif[y] as the type of [very severe
sexual or physical] abuse you would see in most people with [dissociative identity disorder].”
Angela Marie Valentine, who shared a cell with Orndorff at the Prince William Detention
Center before Orndorff was sent to Central State Hospital and after Orndorff returned from the
hospital, also testified as a witness for the Commonwealth. She testified that Orndorff told her
that “at any God given time she could be five or twelve, whenever she wanted to be, and she was
going to beat the[] doctors at Central State.” Valentine further testified that, while she never
heard Orndorff “talk like a twelve-year-old,” she did see “her act like she [did not] know what
was going on and then a few seconds later she was back to herself.” According to Valentine,
Orndorff would “be hysterical one minute and then all of sudden” she would “c[o]me right back
to her senses.” Valentine also recounted a time when, to Valentine’s surprise, Orndorff
“changed up on her,” meaning that “all of a sudden,” Orndorff became “aggressive and angry”
and “was uttering expletives,” which Valentine had never seen her do before.
After argument by counsel, the jury fixed Orndorff’s punishment at thirty-two years for
the second-degree-murder conviction and three years for the use-of-a-firearm conviction.
Soon thereafter, Orndorff refiled her motion for a new trial on the basis of
after-discovered evidence of a mental illness that would sustain an insanity defense. In an
affidavit submitted with that motion, Dr. Loewenstein stated that, based on his March 3, 2002
and March 17, 2002 interviews and testing of Orndorff, his review of “the case materials,”
collateral interviews he performed, and his “education, training, knowledge, and experience,” it
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was his opinion within a reasonable degree of medical and psychiatric certainty that Orndorff
met the “diagnostic criteria” for dissociative identity disorder, among other less severe
psychiatric disorders. Dr. Loewenstein further stated in the affidavit as follows:
Dissociative Identity Disorder (DID): She manifests “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)” (DSM-IV). In fact, I have encountered 7
distinct alter identities in Ms. Orndorff, including the “Janice”
identity that is nominally the “host” alter. In addition, “at least two
of these identities or personality states recurrently take control of
the person’s behavior” (DSM-IV). I have seen switching, that is, a
transition of “executive control” of the human being, by multiple
alters during the clinical interviews and testing. Finally,
Ms. Orndorff describes and manifests dissociative amnesia,
“inability to recall important personal information that is too
extensive to be explained by ordinary forgetfulness.” (DSM-IV).
She described amnesia for a variety of life experiences and times
in her past, including segments of her legal hearing, as well as
demonstrating amnesia during clinical interviews.
* * * * * * *
2. Janice Orndorff’s Mental State at the Time of the Crime: Based
on my review of materials and interviews with Ms. Orndorff, it is
my opinion that, at the time of the murder of Goering G. Orndorff,
Ms. Orndorff suffered from an impulse that was sudden,
spontaneous, and unpremeditated. At the time of the crime,
Ms. Orndorff was overwhelmed by symptoms of dissociative
identity disorder and personality disorder NOS, and, possibly, by
acute and/or chronic posttraumatic stress disorder and depression
NOS as well. Accordingly, she was so impaired by these diseases
of the mind that she was totally deprived of the mental power to
control or restrain her acting to harm Goering Orndorff. Therefore,
her mental state at the time of the act should lead to a finding of
legal insanity by Virginia law under the “irresistible impulse” test
of the insanity statutes.
At the hearing on Orndorff’s motion for a new trial based on after-discovered evidence,
the trial judge accepted Dr. Loewenstein’s affidavit as a proffer of evidence. After argument by
counsel, the trial judge denied Orndorff’s motion for a new trial. In reaching that decision, the
trial judge found that, while Orndorff showed that the purported after-discovered evidence was
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not merely cumulative, corroborative or collateral, she failed to show that she could not have
obtained that evidence, which was in her control, for use at the trial through due diligence. The
trial judge also found that Orndorff failed to show that the purported after-discovered evidence
should produce the opposite result in another trial, stating as follows:
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 [dissociative identity disorder], that there
were multiple personalities, in fact, . . . another personality is the
one that committed the murder . . . .
Despite expressing “some doubt” about the timing of the behavior that led to the dissociative
identity disorder diagnosis, the trial judge further implicitly found that Orndorff showed that the
evidence in question appeared to have been discovered after the guilt phase of the trial. “It was
not until she actually had been convicted by the jury,” the trial judge stated, “that apparently she
acted in such a manner that [dissociative identity disorder] was even possibly considered.”
Thereafter, the judge continued, “apparently her symptoms became more severe and the
diagnosis of [dissociative identity disorder] was made and the alters started coming out.”
The trial judge subsequently entered an order sentencing Orndorff, consistent with the
jury’s verdict, to thirty-two years’ imprisonment for the murder of her husband and three years’
imprisonment for using a firearm in the commission of that murder, for a total sentence of
thirty-five years.
This appeal followed.
II. ANALYSIS
On appeal, Orndorff contends the trial court abused its discretion in denying her motion
for a new trial based on after-discovered evidence that she suffered from dissociative identity
disorder and that, as a result of that disorder, her mind was so impaired at the time of the
shooting that she was totally deprived of the mental power to control or restrain her act.
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Specifically, she contends the trial court erred in concluding that she could have secured that
evidence through the exercise of reasonable diligence for use at trial and that the admission of
that evidence at another trial would not produce an opposite result because the jury heard and
rejected that evidence at the sentencing phase of her trial. In response, the Commonwealth
contends the trial court correctly determined that Orndorff failed to show that the purported
after-discovered evidence was reasonably unobtainable for use at the original trial and would be
material and produce an opposite result upon retrial. We agree with Orndorff.
Our Supreme Court has consistently held that
[m]otions for new trials based on after-discovered evidence are
addressed to the sound discretion of the trial judge, are not looked
upon with favor, are considered with special care and caution, and
are awarded with great reluctance. The applicant bears the burden
to establish that the 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 v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983) (citation omitted); see
Commonwealth v. Tweed, 264 Va. 524, 528-29, 570 S.E.2d 797, 800 (2002). “The burden is on
the moving party to show that all four of these requirements have been met in order to justify a
new trial.” Johnson v. Commonwealth, 41 Va. App. 37, 43, 581 S.E.2d 880, 883 (2003).
Here, the trial judge specifically found that the evidence that Orndorff suffered from
dissociative identity disorder at the time of the murder was not cumulative, corroborative, or
collateral. The judge also implicitly found that the evidence came to light after the guilt-phase
verdict when Orndorff’s “alters started coming out” and “the diagnosis of [dissociative identity
disorder] was made.” The Commonwealth argues on appeal, as the trial judge found, that the
second and fourth requirements were not met. Thus, in determining whether the trial court
abused its discretion in denying Orndorff’s motion for a new trial based on after-discovered
- 24 -
evidence, we will limit our consideration to the question of whether Orndorff satisfied her
burden of showing that the second and fourth requirements were met.
Because the granting of a motion for a new trial based on after-discovered evidence is
addressed to the sound discretion of the trial court, the court’s “decision will not be reversed
except for an abuse of discretion.” Carter v. Commonwealth, 10 Va. App. 507, 514, 393 S.E.2d
639, 643 (1990). A trial court may be found to have abused its discretion if the court uses “an
improper legal standard in exercising its discretionary function,” Thomas v. Commonwealth, 263
Va. 216, 233, 559 S.E.2d 652, 661 (2002), or “makes factual findings that are plainly wrong or
without evidence to support them,” Congdon v. Congdon, 40 Va. App. 255, 262, 578 S.E.2d 833,
836 (2003).
A. Discoverability of the After-Discovered Evidence
It is well established in Virginia that a new trial will not be granted on the basis of
after-discovered evidence “unless such evidence could not have been discovered by the exercise
of reasonable diligence in time for use at the former trial[].” McClung v. Folks, 126 Va. 259,
266, 101 S.E. 345, 347 (1919). Thus, “it must appear . . . that the evidence . . . is such, that by
the exercise of reasonable diligence on the part of the applicant it could not have been procured
for the trial.” Id. at 267, 101 S.E. at 347. It is not enough, however, “merely to say that the
evidence could not have been discovered by the use of due diligence.” Fulcher v. Whitlow, 208
Va. 34, 38, 155 S.E.2d 362, 365 (1967). The party seeking a new trial on the ground of
after-discovered evidence must submit evidence showing “that [s]he used reasonable diligence to
secure [the after-discovered] evidence before the earlier trial” and “explaining why [s]he was
prevented from securing it.” Id. “Reasonable diligence always depends upon the facts and
circumstances of the case.” McClung, 126 Va. at 266, 101 S.E. at 347.
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Here, the trial court determined that Orndorff failed to show that the evidence she
suffered from dissociative identity disorder at the time of the murder could not have been
discovered for use at trial through the exercise of reasonable diligence. The record, however,
does not support that determination. Indeed, the record reveals that Orndorff did everything that
was reasonably possible prior to trial to discover grounds for a plea of not guilty by reason of
insanity and that, despite those efforts, evidence supporting a diagnosis of dissociative identity
disorder did not present itself to defense counsel or the psychiatrists and psychologists involved
in Orndorff’s treatment and evaluation until after the guilt phase of Orndorff’s trial had ended.
The undisputed evidence establishes that, well before trial, Orndorff’s counsel retained
Dr. Fiester, a forensic psychiatrist and authority on personality disorders, and Dr. van Gorp, a
clinical psychologist and neuropsychologist and an authority on malingering, to examine and
evaluate Orndorff to determine if she had any psychiatric or psychological disorders that were
relevant to her defense. Both doctors examined Orndorff and the materials related to the case,
including the tape of Orndorff’s 911 call. While both doctors diagnosed Orndorff as having a
propensity to dissociate and opined that the amnesia she experienced regarding her husband’s
murder was the result of a dissociative episode caused by the trauma of her husband’s death,
neither doctor found any evidence that would support a diagnosis of dissociative identity
disorder or of any other mental illness that would permit the reasonable assertion of an insanity
defense. Thus, Orndorff was precluded from asserting an insanity defense at trial.
The Commonwealth argues that, because there “was substantial evidence of dissociation
available before trial,” the exercise of reasonable diligence required that Orndorff examine the
possibility of dissociative identity disorder at that point. In making that argument, however, the
Commonwealth fails to heed the manifest distinction between mere dissociation and dissociative
identity disorder. As Dr. Fiester testified, “dissociation,” by itself, “simply means the person
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doesn’t recall” because “[t]here’s a disconnect between the emotions and actions and the
conscious awareness of [those emotions and actions.]” This was the diagnosis the doctors made
before the trial. Dissociative identity disorder, on the other hand, is, according to Dr. Fiester, a
distinctive, severe dissociative disorder that involves “the emergence of another part of the
personality that seems like almost a different person.”
As the evidence further establishes, it was not until Orndorff entered into a childlike state
after the jury rendered its verdict that Drs. Fiester and van Gorp encountered evidence that
indicated she might be suffering from dissociative identity disorder. Soon after observing
Orndorff in that state, Dr. Fiester testified that Orndorff’s condition raised the possibility that
Orndorff could have dissociative identity disorder. Upon learning of the incident, Dr. van Gorp
immediately wrote that “a multiple personality disorder must be seriously considered and
psychologically and psychiatrically ruled out.” Explaining why he had not considered the
possibility of Orndorff having dissociative identity disorder before then, Dr. van Gorp testified
that a diagnosis of dissociative identity disorder “can only be made when [the patient’s] various
alters, or separate personalities, emerge.” Similarly, Dr. Fiester testified that dissociative identity
disorder cannot be diagnosed “without the presence of a separate identity.” Hence, Dr. Fiester
explained, she did not have “enough information to . . . make the diagnosis” of dissociative
identity disorder until Orndorff presented “as a twelve-year-old girl” after her conviction. Thus,
the record contains uncontradicted explanations as to why the doctors earlier had not considered
the possibility of Orndorff having dissociative identity disorder.1
1
We need not analyze the differences, if any, between Wisconsin or Oklahoma law and
Virginia law on this point. We merely note that the two Wisconsin cases cited by the dissent,
Williams v. State, 631 N.W.2d 623 (Wis. Ct. App. 2001), and State v. Fosnow, 624 N.W.2d 883
(Wis. Ct. App. 2000), are factually dissimilar from this case and that the Oklahoma case cited by
the dissent, Sellers v. State, 889 P.2d 895 (Okla. Crim. App. 1995), is likewise inapposite. In
Williams, the purported newly discovered evidence was “simply [the psychologist’s] assessment
of pre-existing information, the same information [previously reported and] utilized by [the
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Moreover, the evidence indicates that dissociative identity disorder is not easily
diagnosed. Dr. Dell, who consulted with the staff at Central State Hospital during Orndorff’s
treatment, testified that diagnosing dissociative identity disorder is difficult because the various
alter personalities are “cautious, distrusting and hidden” and are not easily discernible,
particularly to the untrained or inexperienced eye.2
physician who originally examined the petitioner].” 631 N.W.2d at 627. In Fosnow, where the
defendant had a lengthy history of mental illness and it was known prior to his guilty plea that he
heard “voices,” had significant “memory lapses,” suffered from “traumatic” childhood abuse,
and had “imaginary friends” who made him “do bad things,” the court ruled that “Fosnow and
his trial counsel were aware of a possible [dissociative identity disorder] diagnosis from [one of
the examining psychiatrist’s] report and did not choose to obtain additional evaluations that
might have supported it [prior to entry of the guilty plea].” 624 N.W.2d at 889-91. In each case,
unlike in Orndorff’s case, the purported newly discovered evidence was “previously known but
not used.” Id. at 886. In other words, it was merely a reassessment of the same evidence that
had been discovered earlier, which is not the case here. In Sellers, the appellant claimed in his
application for post-conviction relief based on newly discovered evidence solely that his multiple
personality disorder could not have been discovered prior to trial because the disorder was
“greatly misunderstood and often misdiagnosed.” 889 P.2d at 897. Summarily rejecting
Sellers’s claim without setting forth or addressing any evidence relative thereto, the court simply
ruled that, while “perhaps a relatively new mental disease,” multiple personality disorder was a
“recognized illness which defense counsel could have investigated.” Id. The newness of
dissociative identity disorder is not at issue here.
2
We note that, in relying on (1) a mere explanatory allusion by Dr. Fiester to “multiple
personality disorder” in a wide-ranging discussion of the “variety of conditions” that can “trigger
amnesia” generally and (2) Dr. Dell’s statement that he was able to discern evidence of
Orndorff’s alter personalities from the transcript of Orndorff’s 911 call as grounds for
concluding that Drs. Fiester and van Gorp should have been able, prior to trial, to diagnose
Orndorff as suffering from dissociative identity disorder, the dissent appears to inappropriately
place the responsibility for exercising reasonable diligence under Odum’s second requirement on
Drs. Fiester and van Gorp, rather than on Orndorff and her trial counsel. See Odum, 225 Va. at
130, 301 S.E.2d at 149 (“The applicant bears the burden to establish that the [after-discovered]
evidence . . . (2) could not have been secured for use at the trial in the exercise of reasonable
diligence by the movant . . . .” (Emphasis added.)). It is uncontroverted that Drs. Fiester and
van Gorp were both accomplished mental health professionals and that Dr. Fiester was an
eminent authority on personality disorders. Indeed, Dr. Fiester was a member of the “work
group” that prepared the DSM-IV “in the area of personality disorders specifically.” Moreover,
unlike Drs. Fiester and van Gorp when they performed their pretrial evaluations of Orndorff,
Dr. Dell had the benefit of examining Orndorff and the transcript of Orndorff’s 911 call after,
and with the knowledge of, the post-conviction emergence of Orndorff’s alter personalities.
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The evidence also shows that Orndorff did not have control over the timing of the
emergence of her symptoms of dissociative identity disorder. Both Drs. Fiester and Loewenstein
testified that people with dissociative identity disorder cannot control the switching that occurs
between their alter personalities. Moreover, no psychologist or psychiatrist involved in
Orndorff’s treatment or evaluation found that she was malingering or otherwise had control over
the emergence of her symptoms. In fact, Dr. van Gorp, an expert in the detection of malingering,
testified that, based on the normal slow evolution of the presentation of Orndorff’s symptoms
and the results of specialized tests he gave her that were designed to detect malingering, he was
“convinced” Orndorff was not feigning her psychiatric symptoms of dissociative identity
disorder.
Because the record conclusively demonstrates that Orndorff used reasonable diligence
prior to trial in seeking evidence that could reasonably serve as a basis for an insanity plea and
explains why, despite that reasonable diligence, she was prevented from securing such evidence
until after her conviction, we hold that the trial court abused its discretion in finding Orndorff
failed to meet her burden of establishing that the evidence that she suffered from dissociative
identity disorder “could not have been secured for use at the trial in the exercise of reasonable
diligence by [her].” Odum, 225 Va. at 130, 301 S.E.2d at 149.
B. Materiality and Effect at Another Trial of the After-Discovered Evidence
Pursuant to the fourth requirement for obtaining a new trial based on after-discovered
evidence, the defendant must establish that such evidence “is material, and such as should
produce opposite results on the merits at another trial.” Id. (emphasis added). This
“well-settled” standard has also been stated to require that the evidence be such that it “‘ought to
produce opposite results on the merits’” at another trial. Lewis v. Commonwealth, 209 Va. 602,
608-09, 166 S.E.2d 248, 253 (1969) (emphasis added) (quoting Reiber v. Duncan, 206 Va. 657,
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663, 145 S.E.2d 157, 162 (1965)). It is not enough, therefore, for the defendant to simply show
that the evidence in question might produce an acquittal. Indeed, “[b]efore setting aside a
verdict, the trial court must have evidence before it to show in a clear and convincing manner ‘as
to leave no room for doubt’ that the after-discovered evidence, if true[,] would produce a
different result at another trial.” Carter, 10 Va. App. at 513, 393 S.E.2d at 642 (quoting Powell
v. Commonwealth, 133 Va. 741, 756, 112 S.E. 657, 661 (1922)).3
Here, the trial judge, observing that the jury recommended a heavy sentence for Orndorff,
concluded that the purported after-discovered evidence “would not produce opposite results on
the merits at another trial” because the jury heard at the penalty phase the after-discovered
3
We cite to Carter because it is a prior opinion from this Court concerning
after-discovered evidence. We note, however, that the efficacy of this quotation may be
problematic when the issue does not involve perjury. This quotation in Carter is based upon the
following language in Powell, which concerned new evidence being offered to establish perjury:
The courts properly require that it shall be made to appear
affirmatively that the new evidence tending to show the mistake or
the perjury, beyond question exists and is not a mere matter of
belief or opinion, before they will grant the relief in such cases.
Where the ground is perjury, the old rule was that the witness must
appear of record to have been convicted of the perjury or his death
must have rendered conviction impossible, before it could be
regarded as good ground for the new trial. The modern rule is not
so strict. By the preponderance of authority it seems to be
sufficient if the court has evidence before it which establishes the
existence of the evidence relied on to show the perjury or mistake,
in such a clear and convincing manner as to leave no room for
doubt as to the existence of the evidence so relied on, and the court
is satisfied that the evidence is not collusive, that it seems to be
true, and ought, if true, to produce on another trial an opposite
result on the merits.
133 Va. at 755-56, 112 S.E. at 661 (emphases added). In short, the Powell opinion concerns
evidence to “show . . . perjury,” and it uses the “clear and convincing” standard to refer “to the
existence of the evidence” that is offered to support the request for a new trial. Id. at 756, 112
S.E. at 661 (emphasis added).
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evidence, including that Orndorff “had [dissociative identity disorder], that there were multiple
personalities, [and that] . . . another personality is the one that committed the murder.”
Initially, we hold the trial 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. The correct standard is not
whether the jury that convicted the defendant without benefit of the after-discovered evidence
would, after hearing the new evidence, recommend a lenient sentence, but, rather, whether the
new evidence “is material, and such as should produce opposite results on the merits at another
trial,” with a new jury. Odum, 225 Va. at 130, 301 S.E.2d at 149 (emphasis added).
The circumstances of this case exemplify the underlying rationale and merits of that
distinction. Before sentencing, the jury heard no evidence regarding Orndorff’s psychological
state at the time of the killing. Because the evidence that later supported a diagnosis of
dissociative identity disorder had not been discovered, Orndorff’s experts were limited during
the guilt phase of the trial to providing a general discussion of the nature of dissociative amnesia
as a possible explanation of Orndorff’s unusual post-killing behavior. Rejecting that explanation
and Orndorff’s claim of self-defense in favor of the Commonwealth’s argument that Orndorff’s
unusual post-killing behavior was an attempt to cover up a malicious killing, the jury convicted
her of murder. It is of no surprise, then, that, having found Orndorff to be a murderer and a liar,
the jury apparently found her belated mitigating evidence of insanity unpersuasive. Clearly, the
jury’s sentencing verdict is not a reliable indicator of how a new, untarnished fact finder would
view such evidence “at another trial” where insanity was at issue in the guilt phase. Id.
Evidence reasonably offered to support a defendant’s claim that he or she was legally
insane at the time of the alleged offense has long been recognized in Virginia as being material
to the issue of the defendant’s guilt. See Boswell v. Commonwealth, 61 Va. (20 Gratt.) 860,
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874-76 (1871) (“If [the defendant] relies on the defence of insanity, he must prove it to the
satisfaction of the jury. If, upon the whole evidence, they believed he was insane when he
committed the act, they will acquit him on that ground.”); Evans-Smith v. Commonwealth, 5
Va. App. 188, 196, 361 S.E.2d 436, 441 (1987) (“Evidence is material if it relates to a matter
properly at issue.”).
Virginia law recognizes two tests by which an accused can
establish criminal insanity, the M'Naghten Rule and the irresistible
impulse doctrine. The irresistible impulse defense is available
when “the accused’s mind has become ‘so impaired by disease that
he is totally deprived of the mental power to control or restrain his
act.’”
Bennett v. Commonwealth, 29 Va. App. 261, 277, 511 S.E.2d 439, 446-47 (1999) (quoting
Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d 368, 370 (1986) (quoting Thompson
v. Commonwealth, 193 Va. 704, 716, 70 S.E.2d 284, 292 (1952))).
As the Commonwealth notes in its appellate brief, the after-discovered evidence in this
case consists of substantive information, in the form of expert-witness testimony and proffered
evidence, indicating that Orndorff suffered from dissociative identity disorder at the time of the
shooting and that one or more of her alter personalities, other than the host or baseline
personality of Janice Orndorff, was responsible for committing the charged offenses. The
after-discovered evidence also indicates that Orndorff was not malingering in her presentation of
dissociative identity disorder symptoms, that she was unable to control the switching between the
alter personalities within her, that her alter personalities recurrently took control of her behavior,
and that her host personality of Janice had no memory of her husband’s murder.
Dr. Loewenstein testified that one of Orndorff’s protector alter personalities admitted to killing
Orndorff’s husband to protect the host personality. Dr. Loewenstein stated in his affidavit that,
upon his forensic evaluation of Orndorff, he concluded that, at the time of the killing, Orndorff
“suffered from an impulse that was sudden, spontaneous, and unpremeditated.” Dr. Loewenstein
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further concluded that Orndorff was so “overwhelmed” by symptoms of dissociative identity
disorder and other less severe mental disorders and “so impaired by these diseases of the mind[,]
that she was deprived of the mental power to control or restrain her acting to harm [her
husband].” Dr. Loewenstein also concluded that Orndorff was suffering from an irresistible
impulse when she shot her husband and was, thus, legally insane at the time of the killing.
Although it is within the province of the fact finder to decide whether Orndorff’s mind
was “‘“so impaired by disease that [she was] totally deprived of the mental power to control or
restrain”’” herself from acting at the time of the offenses, if true, Dr. Loewenstein’s testimony
and affidavit, in combination with the other after-discovered evidence presented in this case,
present a viable defense of legal insanity under the doctrine of irresistible impulse. Bennett, 29
Va. App. at 277, 511 S.E.2d at 447 (quoting Godley, 2 Va. App. at 251, 343 S.E.2d at 370
(quoting Thompson, 193 Va. at 716, 70 S.E.2d at 292)). We conclude, therefore, that the
after-discovered evidence is material to the issue of Orndorff’s guilt and is sufficient to “show in
a clear and convincing manner ‘as to leave no room for doubt’ that the after-discovered evidence,
if true[,] would produce a different result at another trial.” Carter, 10 Va. App. at 513, 393
S.E.2d at 642 (quoting Powell, 133 Va. at 756, 112 S.E. at 661).
The Commonwealth argues that, as a matter of law, the after-discovered evidence does
not provide a valid defense of legal insanity under the irresistible impulse doctrine because “the
evidence overwhelmingly established that subsequent to the alleged irresistible impulse the
defendant doctored the scene of the crime . . . and called her attorney for assistance.” We
disagree.
While it is true, generally, that, as logic dictates, “the lack of restraint inherent in an
impulsive act is inconsistent with a contemporaneous concealment of the impulsive act,” Vann v.
Commonwealth, 35 Va. App. 304, 314, 544 S.E.2d 879, 883 (2001), here, given the volatile,
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“switching” nature of Orndorff’s mental disorder, the fact that Orndorff called her attorney and
“doctored the scene of the crime” after the shooting does not mean that she was not acting
pursuant to an irresistible impulse when she shot her husband. As previously noted, people with
dissociative identity disorder cannot restrain their alter personalities from recurrently taking and
relinquishing control of their behavior. The shifts between and among the alter personalities can
occur very quickly. Furthermore, as Dr. Loewenstein testified, the switching by the alter
personalities tends to increase when the host personality is frightened.
Thus, the record supports the finding that, as the Commonwealth appears to concede, the
phone call to Orndorff’s attorney and any manipulation of the crime scene by Orndorff occurred
“subsequent to the . . . irresistible impulse” that resulted in the killing. That is to say, after
killing Orndorff’s husband, Orndorff’s alter personalities relinquished control of her behavior,
leaving her “behind to attempt to deal with what happened.” The post-shooting phone call and
any manipulation of the scene do not change the fact that, having had her behavior taken over by
one or more of her protector alter personalities at the time of the shooting, Orndorff herself was
not responsible for shooting her husband. Hence, as a matter of logic, Vann would not apply.
The record also supports the converse finding that, as Drs. Loewenstein’s and Dell’s
testimony appears to suggest, Orndorff’s alter personalities continued to control her behavior
following the shooting. According to Dr. Loewenstein, one of Orndorff’s protector alter
personalities stated that he directed Orndorff to call her attorney after the shooting. Dr. Dell
testified that Orndorff was still being controlled by her alter personalities well after the shooting
during the 911 call. Clearly, Orndorff may not be held accountable under Vann for the phone
call to her attorney and for doctoring the crime scene if, as during the shooting, her actions were
still being controlled by her alter personalities at the time. Like the shooting itself, such actions
would be the product of an irresistible impulse.
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Thus, under either interpretation of the facts, the evidence of Orndorff’s post-shooting
phone call to her attorney and doctoring of the crime scene does not alter our conclusion that the
after-discovered evidence provides Orndorff a valid defense of legal insanity under the
irresistible impulse doctrine. To conclude otherwise would defy logic and elevate form over
substance.
We hold, therefore, that Orndorff met her burden of establishing that the after-discovered
evidence “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.
III. CONCLUSION
Having found that Orndorff met the requirements necessary to obtain a new trial based on
after-discovered evidence, we hold the trial court abused its discretion in refusing to grant
Orndorff a new trial. Accordingly, we reverse the trial court’s denial of the motion for a new
trial, vacate Orndorff’s convictions for murder in the second degree and use of a firearm in the
commission of murder, and remand this case for retrial, if the Commonwealth be so advised.
Reversed and remanded.
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Fitzpatrick, C.J., dissenting.
I respectfully dissent and would affirm appellant’s convictions. I would hold that the
evidence in this case failed to meet the requisite standard to order a new trial based on
after-discovered evidence.
There is no dispute as to the applicable law.
“[M]otions for new trials based on after-discovered evidence are
addressed to the sound discretion of the trial judge, are not looked
upon with favor, are considered with special care and caution, and
are awarded with great reluctance.” A party who seeks a new trial
based upon after-discovered evidence “bears the burden to
establish that the 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 due 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.”
Commonwealth v. Tweed, 264 Va. 524, 528-29, 570 S.E.2d 797, 800 (2002) (quoting Stockton
v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387 (1984); Odum v. Commonwealth,
225 Va. 123, 130, 301 S.E.2d 145, 149 (1983)). I agree with the trial court that appellant failed
to establish both the second and fourth prongs of this test.
I. Due Diligence
The majority holds that the record in this case does not support the trial court’s finding
that evidence of appellant’s Dissociative Identity Disorder (DID) was discernible and available at
the time of trial through the exercise of reasonable diligence. I disagree. The record is replete
with examples of, and information about, appellant’s dissociative conduct and the possibility of
the purported correct diagnosis of DID. While appellant was unable to obtain an expert who
diagnosed the specific type of dissociative disorder until later in the case, this does not mean that
the evidence was unavailable at the time of trial. In effect, appellant asks us to allow a different
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post-trial diagnosis of a possible mental illness to require a new trial. This is a continuum that
the law does not encourage.
While we have not addressed this specific issue, two of our sister states have provided
guidance. In State v. Fosnow, 624 N.W.2d 883 (Wisc. Ct. App. 2000), after the defendant’s
conviction on several felonies, a prison psychiatrist diagnosed him with DID. After the
diagnosis, he filed a motion to withdraw his pleas of no contest because the new diagnosis would
show he was not criminally responsible for his acts. He argued that the new diagnosis
constituted newly discovered evidence that entitled him to withdraw his earlier no contest plea.
The Court of Appeals of Wisconsin, in affirming the trial court, held that the new diagnosis was
merely the new appreciation of the importance of existing evidence. As in the instant case,
extensive psychiatric information about Fosnow was available at the time of the plea and
indicated dissociative personality features and other possible DID symptoms. The main factors
underlying the new diagnosis existed and were available at the time of defendant’s initial mental
examinations. “Newly discovered evidence, however, does not include the new appreciation of
the importance of evidence previously known but not used.” Id. at 886 (internal citations
omitted). See also State v. Williams, 631 N.W.2d 623, 627 (Wisc. Ct. App. 2001) (an expert’s
assessment of pre-existing information represents a “new appreciation of the importance of
evidence previously known but not used,” not newly discovered evidence).
In Sellers v. State, 889 P.2d 895 (Okla. Crim. App. 1995), the appellant was convicted of
three counts of murder. In an application for post-conviction relief, appellant alleged that he was
diagnosed after conviction with Multiple Personality Disorder (MPD) and that this newly
discovered evidence required a new trial. The court held that “[t]hough at that time MPD was
perhaps a relatively new mental disease,” this fact does not provide a sufficient explanation for
its failure to be addressed earlier because it was a recognized diagnosis at the time of trial. Id. at
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897. “Trial counsel could have, with due diligence, discovered evidence of [appellant’s] . . .
MPD prior to trial. Accordingly it was not ‘newly discovered’ and would not warrant a new
trial.” Id. Fosnow and Sellers are factually analogous to the instant case, and I would adopt their
reasoning.
At a pretrial hearing, appellant presented two mental health experts who gave detailed
opinions concerning her mental health at the time of the shooting and thereafter.4 Dr. Feister
testified that in September 2000, she personally met with appellant for over sixteen hours and
spoke to her on additional occasions by phone. She had reviewed appellant’s psychological
testing results, the 911 call and transcript, transcripts of earlier interviews with the police and
other police reports. In response to counsel’s questions, she opined that appellant suffered from
“Major Depression Disorder, Recurrent, Post Traumatic Stress Disorder,” and discussed several
of appellant’s dissociative events including her involvement in an earlier automobile accident
and the description of her conduct during the 911 call to police. Dr. Fiester stated that
“[appellant] was in a dissociative episode for a period of time subsequent to her husband’s
death.” In discussing the relationship of appellant’s “amnesia” resulting from the traumatic
event of the murder, Dr. Fiester specifically noted that “[o]ne can experience amnesia as a part of
a dissociative disorder, sometimes referred to as multiple personality disorder.” (Emphasis
added.) The information on her psychological makeup was clearly available and capable of
4
At the pretrial hearings on appellant’s mental state, two mental health experts were
retained by appellant, Dr. Susan J. Fiester, a forensic psychiatrist, and Dr. Wilfred G. van Gorp, a
clinical psychologist and neuropsychologist. Neither could state that appellant met the test for
insanity based on their extensive evaluations. At the sentencing stage the following additional
mental health experts testified, Dr. Greg Wolber, Chief of the Forensic Team at Central State
Hospital where appellant was sent for post-trial evaluation, Dr. Paul Frederick Dell, the clinical
psychologist who diagnosed appellant as suffering from DID, Dr. Richard Joseph Loewenstein, a
defense retained psychiatrist, and Dr. Daniel Sheneman, the attending psychiatrist for appellant
at Central State who testified for the Commonwealth in rebuttal.
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being analyzed in determining any potential diagnosis. In fact, this was the later diagnosis that
appellant now asserts is newly discovered.
Additionally, the fact that after the jury’s finding of guilt, appellant’s symptoms became
more pronounced and easier to categorize does not require a different result. All of the experts
opined that DID is an illness that develops over a long period of time and has its etiology in
childhood. Dr. Dell, in describing the failure of the other experts to properly diagnose
appellant’s true condition earlier, listed a “profound lack of education and inability to recognize
diagnostic signs” as the basis for any possible earlier misdiagnosis. He testified that it was clear
from the transcript of the 911 call that appellant’s “alters” were present at that time. Even
assuming that appellant’s acute episodes after the guilty verdict made a diagnosis of DID easier,
this later diagnosis was really just a different diagnosis of a known condition. To hold otherwise
would leave the door open for a new trial with each new diagnosis and, thus, dispense with the
finality that a trial on the merits requires. I would hold that this evidence was available in the
exercise of due diligence at trial. Accordingly, the new diagnosis does not warrant a new trial.
II. Materiality
I also would hold that appellant failed to establish that the “new” DID diagnosis was
“such as should produce opposite results on the merits at a new trial.” Odum, 225 Va. at 130,
301 S.E.2d at 149. The standard for a new trial based on after-discovered evidence also includes
the admonition that “[b]efore setting aside a verdict, the trial court must have evidence before it
to show in a clear and convincing manner ‘as to leave no room for doubt’ that the
after-discovered evidence, if true[,] would produce a different result at another trial.” Carter v.
Commonwealth, 10 Va. App. 507, 513, 393 S.E.2d 639, 642 (1990).
The unique procedural posture of this case clearly shows that appellant failed to meet this
criteria. Initially it is important to note, that the “after discovered” evidence, which is actually a
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new diagnosis of earlier behavior indicators, was presented to the jury during the sentencing
phase of the trial, yet they found it unconvincing even as possible mitigation of punishment.
When defense counsel filed a motion requesting a new trial based on appellant’s new diagnosis,
he asked the trial court to defer ruling on the motion until after the jury could consider the
information and recommended a sentence. Thus, the jury actually heard all the newly discovered
evidence. The evidence, as outlined in the majority opinion, was extensive. Several
psychologists and psychiatrists described in great detail the nature of DID, appellant’s
background, why her diagnosis was not made earlier, that one of her “alters” was responsible for
the murder of her husband and even opined that she was not a malingerer. Simply put, the jury
discounted the new diagnosis of DID and sentenced her to far in excess of the minimum sentence
for the offense. This resolves the question of whether this additional evidence would produce a
different result at a retrial.
It is true, as noted by the majority, that a part of the “materiality” prong of the
after-discovered evidence test is that the new evidence would produce a different verdict “at
another trial.” They contend that because the jury heard the new evidence as a part of the same
proceeding, it does not meet the “other trial” requirement. The procedural course of this case as
dictated by the appellant’s request to allow the evidence in the same trial precludes this
argument. She requested it and should not now be heard to challenge it. Additionally this
requirement assumes that the newly discovered evidence is, in fact, discovered after trial and is
unavailable for the fact finder to consider. I agree with the trial judge who succinctly stated that
appellant failed to prove that the new evidence would produce a different verdict at another trial
because the jury heard all of the evidence underlying her claim and discounted it. A new trial
presenting the same evidence to a new jury would not produce a different result. Thus, I would
affirm her convictions.
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III. Additional Questions
Appellant raises two additional questions on appeal that were not addressed by the
majority as they did not consider them likely to arise on retrial. I would also affirm the trial
court on these issues. First, she contends that the trial court erred in sentencing her because she
was incompetent.
The party alleging incompetency has the burden to prove it by a preponderance of the
evidence. See Code § 19.2-169(E). The trial court’s competency finding is a question of fact
and is reviewed under a plainly wrong standard. See Delp v. Commonwealth, 172 Va. 564,
570-71, 200 S.E. 594, 596 (1939). The evidence, properly viewed, established that appellant was
competent to be sentenced.
Appellant was sent to Central State Hospital for a post-trial evaluation pursuant to Code
§§ 19.2-169.1 and 19.2-176. Dr. Wolber and the Central State treatment team found her to be
competent and opined that a “lot of her behavior was strictly manipulative and controlling . . .
and did not give credence to a true dissociative identity.” While appellant’s experts put on
evidence supporting a different conclusion, I cannot say that the evidence, when properly
viewed, did not sustain the trial court’s finding or was plainly wrong.
Appellant also contends the trial court erred by failing to allow her experts to testify that
her mental illness was a basis for several inconsistencies in her behavior, including the 911 call
made on the night of the murder.
“The admission of expert testimony is committed to the sound discretion of the trial
judge, and we will reverse a trial court’s decision only where that court has abused its
discretion.” Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992). “It is well settled
that an expert may not express an opinion as to the veracity of any witness.” Davison v.
Commonwealth, 18 Va. App. 496, 504, 445 S.E.2d 683, 688 (1994) (internal quotations
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omitted). “An expert witness may not express an opinion as to the veracity of a witness because
such testimony improperly invades the province of the jury to determine the reliability of the
witness.” Pritchett v. Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208 (2002).
The appellant proffered that her experts would offer an explanation other than
“intentional fabrication” for several of her actions subsequent to her husband’s death. In effect
as the trial court found, appellant wished to put on expert testimony “that she [was] in a
dissociative state and that she’s suffering from amnesia and it is not because she’s lying.” The
trial court allowed the experts to testify as to the general effect of trauma and that some lay
observers might consider a dissociative act to be faking. However, he would not allow expert
testimony commenting on the credibility of the appellant’s statements. I find no error in that
ruling.
Accordingly, I would affirm the convictions.
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