Orndorff v. Commonwealth , 45 Va. App. 822 ( 2005 )

613 S.E.2d 876 (2005) 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 ... 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 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.

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 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:

(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 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 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."

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."

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 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, 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 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, 240 Wis. 2d 699, 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, 140 Wis. 2d 248, 409 N.W.2d 432, 435 (Wis.Ct.App.1987)), the court denied defendant's motion for a new trial. See also People v. McSwain, 259 Mich.App. 654, 676 N.W.2d 236, 253 (2003) ("Failure to recognize a reasonably discoverable mental illness is not enough to require a grant of post-judgment relief."); State v. Williams, 246 Wis.2d 722, 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, 268 Wis. 2d 300, 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.

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 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 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. 389, 396, 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824 (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.

V. 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 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.

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 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 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. 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, 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 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, 240 Wis. 2d 699, 624 N.W.2d 883 (Wis.Ct.App.2000), and State v. Williams, 246 Wis. 2d 722, 631 N.W.2d 623 (Wis.Ct.App.2001), overruled on other grounds by State v. Morford, 268 Wis. 2d 300, 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, 259 Mich.App. 654, 676 N.W.2d 236 (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 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 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 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 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.'"

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 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 "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.

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]

NOTES

[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.

[2] Underwood also called 911 to ensure an ambulance was sent to appellant's residence.

[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.

[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."

[5] In her initial interviews with Dr. Fiester and Dr. van Gorp before trial, appellant reported no such child abuse.

[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.

[7] They also testified after appellant's conviction and used the same background in their revised diagnosis.

[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).

[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."

[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.