Orndorff v. Com.

• Decision Date: 23 November 2004
• Docket Number: Record No. 1325-02-4.
• Court: Virginia Court of Appeals
• Parties: Janice Larue ORNDORFF v. COMMONWEALTH of Virginia.

605 S.E.2d 307

44 Va. App. 368

Janice Larue ORNDORFF v. COMMONWEALTH of Virginia.

Record No. 1325-02-4.

Court of Appeals of Virginia, Alexandria.

November 23, 2004.

William B. Moffitt; Henry W. Asbill, Washington, DC, 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.

Present: FITZPATRICK, C.J., BENTON and CLEMENTS, JJ.

CLEMENTS, Judge.

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 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 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 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.

After talking to Underwood, Orndorff called 911 at 8:39 p.m. She told the 911 operator her...