Turner v. Com.

• Decision Date: 04 August 2009
• Docket Number: Record No. 1836-07-1.
• Citation: 680 S.E.2d 312,54 Va. App. 458
• Court: Virginia Court of Appeals
• Parties: Dustin Allen TURNER, Petitioner, v. COMMONWEALTH of Virginia, Respondent.

680 S.E.2d 312

54 Va. App. 458

Dustin Allen TURNER, Petitioner, v. COMMONWEALTH of Virginia, Respondent.

Record No. 1836-07-1.

Court of Appeals of Virginia.

August 4, 2009.

David B. Hargett (Hargett Law, PLC, on brief), Glen Allen, for petitioner.

Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for respondent.

Before ELDER and POWELL, JJ., and COLEMAN, Senior Judge.

Dustin Allen Turner (Turner) petitions this Court for a Writ of Actual Innocence Based Upon Non-biological Evidence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. Turner was convicted of the abduction with intent to defile and murder of Jennifer L. Evans in the Circuit Court of the City of Virginia Beach on September 5, 1996. In a prior proceeding, Billy Joe Brown was convicted of these same crimes, as well as attempted rape. In 2002, Brown gave a taped interview in which he confessed to acting alone in killing Evans. Brown signed an affidavit in 2003 memorializing his statements from the taped interview. Based on Brown's new confession, Turner claims he is innocent of the offenses for which he was convicted.

Upon consideration of Turner's petition, the Attorney General's motion to dismiss, Turner's reply thereto, and the record, this Court remanded the matter to the circuit court to certify findings of fact regarding factual issues in dispute. The circuit court conducted a hearing in this matter and supplied this Court with its certified findings of fact, including its finding that Brown was "credible in his assertion that he acted independently in murdering the victim and that ... Turner played no role in the murder or in the restraining of the victim." Applying the mandatory statutory standard to these findings and the non-conflicting evidence adduced at Turner's trial, we conclude no rational trier of fact could have found Turner guilty of murder or abduction with intent to defile. While Turner's conduct creates a suspicion of guilt, the evidence, viewed in the context of Brown's recantation, cannot support findings of guilt beyond a reasonable doubt. We therefore grant petitioner's request for a writ of actual innocence, vacate his convictions for murder and abduction with intent to defile, find him guilty of being an accessory after the fact, and remand the matter to the circuit court with instructions to modify the order of conviction accordingly, pursuant to Code § 19.2-327.13.

I. BACKGROUND

A. FACTS ADDUCED AT TRIAL

On June 18, 1995, while vacationing in Virginia Beach, Evans and two friends, Andria Burdette and Michelle McCammon, drove to a local nightclub called the Bayou. Turner and Brown, Navy SEAL trainees at the time, were also at the Bayou during a break in their training. Evans noticed Turner, whom she had not previously met, and the two struck up a conversation. Throughout the night, Evans alternated between talking with her friends and socializing with Turner. She briefly met Brown, but did not have a sustained conversation with him. From all appearances, Evans and Turner were getting along very well. Throughout the night, Brown drank considerable amounts of alcohol until he was on the verge of losing consciousness.

Around midnight, Burdette wanted to leave, but Evans expressed her desire to stay in order to continue talking with Turner. At 1:00 a.m., Evans agreed to leave with her friends and wrote her telephone number on a napkin that she gave to Turner. Burdette and McCammon went to the restroom before leaving and returned to find Turner sitting in a chair with Evans sitting on the armrest.

Burdette and McCammon left the club with Turner and Evans trailing behind. Burdette, McCammon, and Evans entered their vehicle, and Turner leaned against the back door to continue talking to Evans through the open window. Turner expressed his desire to continue socializing with Evans, and Burdette and McCammon eventually agreed to leave Evans at the club and return at 2:00 a.m. to take her home. Evans appeared happy with this arrangement and got out of the vehicle to return to the club with Turner.

Kristen Bishop, an ex-girlfriend of Brown, testified that she saw Turner and Brown at the club on June 18. She briefly socialized with Brown before leaving to go to another club. When she returned to the Bayou, she noticed Turner talking to Evans and her friends. At approximately 1:15 a.m., Turner approached Bishop and asked her to give Brown a ride home if he was not back by 2:00 a.m. Bishop reluctantly agreed. Between 1:25 and 1:30 a.m., the lights came on, announcing last call. At approximately 1:35 a.m., Bishop saw Turner and Evans leave the club holding hands. At approximately 1:45 a.m., Bishop told Brown she would give him a ride home but they had to first wait for Bishop's friend to return. Brown, who was noticeably intoxicated by this point, did not agree to this arrangement and left the club to find Turner. Bishop caught up with Brown in the parking lot and agreed to wait to make sure he had found Turner before leaving. Bishop did not see Brown again after this conversation and left a few minutes later.

Julio Fitzgibbons, a Navy SEAL commander, testified that he first met Turner and Brown at the Bayou on June 18. He talked briefly with them regarding the SEAL training process. He next met up with Turner at last call when the lights came on. He approached Turner to find out what he was doing that night after leaving the bar. Turner responded "that him and Brown ... were going to have a threesome." Brown was standing nearby as Turner made this remark. Evans approached Turner at this point, and he introduced her to Fitzgibbons. As Evans and Turner left, Fitzgibbons "gave him a thumbs up for good-bye and left." Turner responded by giving Fitzgibbons a "thumbs up" and smiling.

Officer K.C. Reilly was assigned to patrol the parking lot and general area surrounding the clubs to detect illegal activity including underage drinking, fighting, and public urination. At 1:24 a.m., Reilly left his vehicle to inspect the parking lot on foot for suspicious activity, specifically people lingering in their vehicles. Reilly did not make any arrests for illegal activity and signed back into his vehicle at 1:51 a.m. Bruce Moore also testified in his capacity as a contract security officer for the nearby hotel. He conducted a similar patrol of the parking lot and encountered no suspicious activity.

Burdette and McCammon returned to the club at approximately 1:50 a.m., but Evans was not in the parking lot where she had promised to meet them. They searched for several hours but could not find Evans. They filed a missing persons report with the police the next day. Bishop read about Evans' disappearance and contacted the authorities with the information she had regarding seeing Evans with Turner and Brown on the night of her disappearance.

The authorities interviewed Turner and Brown on multiple occasions in the subsequent week. Turner initially denied leaving the club with Evans but eventually agreed to lead the authorities to her body. He told the police that Brown choked Evans to death in his vehicle while they sat in the parking lot of the Bayou. When confronted with Turner's confession, Brown accused Turner of murdering Evans.

Both men were indicted for various crimes related to Evans' death. Brown was tried first in June 1996. He chose to take the stand and testified that he did not want to receive a ride back to the military base from Bishop, so he went outside to look for Turner. According to Brown, Turner leapt out of the vehicle as Brown approached and ordered him to get in. Brown testified, under oath, that Turner stated he had killed Evans in the vehicle and that it was solely Turner's idea to defile and dispose of Evans' body. Brown was subsequently convicted of abduction with intent to defile, attempted rape, and murder.

Turner's trial began in August 1996. Charlotte Lowe, the forensic supervisor who analyzed the crime scene, testified that Evans' body was in an advanced state of decomposition and skeletalization, such that many of the bones were exposed. Evans' vest had been pulled back around the shoulders and over the chest, and her bra was pushed up, exposing her breasts. Her shorts and underwear had been pulled down so that they were attached to only one leg. Lowe also examined Turner's car for semen, urine fingerprints, and other physical evidence, but could not find anything of forensic value in the car.

Dr. Leah Bush performed the autopsy on Evans' body and confirmed that the rate of decomposition was significantly accelerated by the heat and outdoor conditions. In her expert opinion, it was impossible to determine the exact cause of death due to the severe skeletalization, but manual strangulation was a possibility. Dr. Bush described the various chokeholds that could lead to death. Specifically, she said the carotid sleeper hold, commonly performed by squeezing the neck, causes death within three to five minutes by restricting blood flow to the brain. She also testified that the bar-arm chokehold—in which the assailant presses a solid object, such as a police baton or a forearm, against the windpipe—could cause death in less than a minute due to the heightened risk of crushing the airway. Dr. Bush further explained that bracing the victim's head against a solid object could assist an assailant in performing the bar-arm chokehold.

Dr. Bush conclusively ruled out a broken neck as a cause of death because the spinal cord did not show signs of fracture. Significant to Dr. Bush's conclusion was that the headrest in the car would have greatly hindered hyperextension of the neck. While she acknowledged that she relied only on x-rays of Evans' neck to form her conclusions, Dr. Bush stated that an extensive autopsy was unnecessary due to the decomposition fully exposing the spinal cord.

Todd Ehrlich testified as to Turner and Brown's...