Turner v. Commonwealth Of Va.

• Decision Date: 29 June 2010
• Docket Number: Record No. 1836-07-1.
• Citation: 56 Va.App. 391,694 S.E.2d 251
• Parties: Dustin Allen TURNER, Petitioner,v.COMMONWEALTH of Virginia, Respondent.
• Court: Virginia Court of Appeals

56 Va.App. 391

694 S.E.2d 251

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

Record No. 1836-07-1.

Court of Appeals of Virginia.

June 29, 2010.

COPYRIGHT MATERIAL OMITTED

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

Robert H. Anderson, III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for respondent.

Before Chief Judge FELTON, Judges ELDER, FRANK, KELSEY, McCLANAHAN, HALEY, PETTY, POWELL, and ALSTON.

Upon a Rehearing En Banc

Upon a Petition for a Writ of Actual Innocence

Dustin Allen Turner petitioned this Court for a writ of actual innocence based upon newly-discovered, non-biological evidence, pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia, alleging that his 1996 convictions for the abduction with intent to defile and murder of Jennifer L. Evans should be vacated because in 2002 Billy Joe Brown, who was convicted of these same crimes,¹ confessed that he acted alone in killing Evans. This Court remanded the matter to the circuit court to certify findings 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 ... Turner played no role in the murder or in the restraining of the victim.”

A divided panel of this Court held that Turner met his burden of proving, by clear and convincing evidence, that the recantation was truthful and that, had the statement been produced at trial, “no rational trier of fact could have found proof of guilt [of felony murder and abduction with intent to defile] beyond a reasonable doubt[,]” granted his petition for a writ of actual innocence, vacated Turner's convictions for first-degree murder and abduction with intent to defile, and remanded the matter to the circuit court with instructions to modify the order of conviction to reflect Turner's conviction for being an accessory after the fact. See Turner v. Commonwealth, 54 Va.App. 458, 680 S.E.2d 312 (2009). We granted the Commonwealth's petition for rehearing en banc and stayed that order.

On rehearing en banc, we hold that Brown's credible recantation does not provide this Court with clear and convincing evidence that no rational fact finder could have found that Turner used deception to abduct Evans with the intent to have sexual intercourse with her against her will. Therefore, we dismiss Turner's petition for a writ of actual innocence and vacate the August 4, 2009 order issued by a panel of this Court.

I. Background

On June 18, 1995, Brown, a Navy SEAL trainee, spent much of the day drinking. Over the course of the day, Brown consumed six beers and eight to ten shots of Jim Beam in his room at the barracks. That night, Brown decided to go to a Virginia Beach nightclub called The Bayou with Turner, a fellow trainee. While Turner drove to the nightclub, Brown drank six more beers.

That same night, Jennifer Evans, who was vacationing in Virginia Beach with her friends, Michelle McCammon and Andria Burdette, decided around 11:00 p.m. to go to The Bayou. While at the nightclub, Evans noticed Turner, whom she had not previously met, and began talking with him. Throughout the remainder of the night, she alternated between socializing with her friends and speaking with Turner. Though Evans met Brown briefly, she did not spend time talking with him.

Around midnight, Burdette wanted to leave, but Evans stalled to continue talking with Turner. Turner and Evans appeared to be getting along very well, so well that at one point Turner sat in a chair while Evans perched on the armrest. About an hour later, Evans finally agreed to leave but not before writing the phone number at the home where she was staying on a napkin for Turner.

Burdette and McCammon then left the nightclub with Turner and Evans trailing behind. As the women entered their vehicle, Turner leaned against the back door and continued talking to Evans through the open window. Turner offered to drive Evans home, but Burdette refused. Burdette and McCammon eventually agreed to leave Evans at the nightclub and return at 2:00 a.m. to take her home. After this agreement was reached, Turner opened Evans' door with “surprising force.” Evans appeared happy with this arrangement and returned to the nightclub with Turner.

Around 1:15 a.m., Turner approached Karen Bishop, Brown's ex-girlfriend, and asked her to give Brown a ride home if Turner did not return to the bar before it closed. Bishop reluctantly agreed. Between 1:15 and 1:30 a.m., the lights came on signaling that it was almost closing time. After the lights came on, Julio Fitzgibbons, a Navy SEAL who had met Brown and Turner that night, approached Turner to see whether Turner had any plans for that night.² Turner said that he and Brown were going to have a threesome with Evans. Evans was approximately fifteen yards away at this time. Within a few seconds of this, Evans approached and Turner introduced her to Fitzgibbons as she stood next to Brown. Fitzgibbons then gave them the thumbs up sign, which Turner returned with a smile on his face.

At approximately 1:35 a.m., Bishop saw Turner and Evans, who were holding hands, leave the nightclub. Brown was with Bishop and one of her friends at this time. At approximately 1:45 a.m., Brown indicated that he wanted to leave, but Bishop told him that she needed to wait a few minutes for her friend.

Brown had consumed an additional eight to ten beers, eight to ten shots, and twelve mixed drinks while at the nightclub. He was noticeably intoxicated and on the verge of losing consciousness.

Brown, indicating an unwillingness to wait for Bishop's friend, left the nightclub. Bishop followed him out of the bar at approximately 1:50 a.m. and told him that she would wait for a few minutes to give him a ride home in case he was unable to find Turner. Around 2:10 or 2:15 a.m., Bishop went back inside the bar, found her friend, and went to her car. Bishop and her friend drove around the parking lot looking for Brown but left after not seeing him.

When Burdette and McCammon returned to the nightclub at approximately 1:50 a.m., Evans was not in the parking lot where she had promised to meet them. They searched for several hours but could not find Evans. The women filed a missing persons report with the police the next day. After reading about Evans' disappearance, Bishop contacted the police to tell them that she had seen Turner and Brown with Evans on the night Evans disappeared.

At approximately 9:00 p.m. on June 21, 1995, Special Agents Thomas L. Carter and Robert Elliott of the Federal Bureau of Investigation interviewed Turner to try to determine what Turner did the weekend Evans disappeared. Notably, Turner told the agents that on Sunday night, he and Brown went to The Bayou where they stayed until closing time before returning to the barracks by themselves. When asked for more details, Turner said he had a conversation with some other SEAL trainees that he met there. He also told the agents that he met two women that evening: one was a tall woman whose name he could not recall and the other was a woman, who the agents later learned was Evans, who was at the nightclub with two female friends. The agents specifically asked Turner about the second woman, and he said he could not recall her name but that they talked for a while. He said that her two companions decided to leave and return around closing time to pick her up. Turner said he continued to talk with her for a while before he left to speak with other people that he knew. He told the agents that he spoke to her again around last call. The woman told him that she would be there for the week and wanted him to call her. She wrote her name and phone number on a cocktail napkin for him. Turner said that he and Brown left while she was waiting for her friends.

After the agents suggested several possible names for the woman, Turner said he might be able to provide her name because he thought that he still had the cocktail napkin in his barracks. Then, Turner and Special Agent Elliott went to Turner's barracks so that Turner could retrieve the napkin. The napkin had the name Jennifer and a phone number written on it.

Once the agents verified that Turner had spent time with Evans, they continued to question him about her, and he repeated that he had met her and her friends at the bar. He told the agents that at some point in the evening, he believed that Evans might agree to leave the bar with him. Based on this belief, he asked Brown to ride home with Bishop so that he was free to leave with Evans. Turner said that Brown told him that he did not want to ride home with Bishop. Turner told investigators that when he realized that he would not be able to be alone with Evans that night, he told her that he would try to contact her later in the week. He stated that he left Evans standing at the bar and returned to the barracks with Brown. Turner told the investigators that neither man had been drinking. He stated that they woke up around 9:00 a.m. on Monday and jointly signed a lease on an apartment before driving back to the base. During the entire interview, the agents thought that Turner was very calm and collected and that his answers seemed very forthright.

Sergeant Thomas Baum, a member of the Virginia Beach Police Department's homicide unit, participated in a subsequent interview of Turner at FBI headquarters in Richmond, Virginia. During that interview, Turner said he and Brown went to The Bayou, where he saw some other SEALS and spent most of the night talking with one of them, a Mexican or Puerto Rican man whose name Turner did not know. Turner also said that Bishop and one of her friends were there. He said he didn't start talking to Evans until around midnight or 12:30 a.m. Turner told the sergeant that he...