Orndorff v. Com.

• Decision Date: 14 June 2005
• Docket Number: Record No. 1325-02-4.
• Citation: 613 S.E.2d 876,45 Va. App. 822
• Parties: Janice Larue ORNDORFF v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

613 S.E.2d 876

45 Va. App. 822

Janice Larue ORNDORFF v. COMMONWEALTH of Virginia.

Record No. 1325-02-4.

Court of Appeals of Virginia, Richmond.

June 14, 2005.

William B. Moffitt; Henry W. Asbill, pro hac vice (Cozen O'Connor, on brief), Washington, District of Columbia, 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.

Present: FITZPATRICK, C.J., and BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY and HALEY, JJ.

UPON REHEARING EN BANC

FITZPATRICK, Chief Judge.

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."

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 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 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."

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 ... ...