Turner v. Commonwealth

Citation282 Va. 227,717 S.E.2d 111
Decision Date16 September 2011
Docket NumberRecord No. 101457.
PartiesDustin Allen TURNER v. COMMONWEALTH of Virginia.
CourtSupreme Court of Virginia

OPINION TEXT STARTS HERE

David B. Hargett (Mary Fitzgerald Kelly, on briefs) for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief) for appellee.

Present: KINSER, C.J., LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, LACY, and KOONTZ, S.JJ.

Opinion By Justice DONALD W. LEMONS.

In this appeal, we consider whether the Court of Appeals erred when it dismissed Dustin Allen Turner's (“Turner”) petition for a writ of actual innocence based on non-biological evidence.

I. Facts and Proceedings Below

On Sunday, June 18, 1995, Turner and Billy Joe Brown (“Brown”), both Navy SEAL trainees, went to The Bayou, a nightclub in Virginia Beach. Brown had spent the afternoon drinking heavily, and he and Turner left for The Bayou around 10:30 p.m. Brown estimated that he drank six beers and eight to ten shots of liquor during the afternoon, as well as an additional six beers on the way to the nightclub and eight to ten beers, eight to ten shots, and twelve mixed drinks while at the nightclub.

That same night, Jennifer Evans (“Evans”), who was vacationing in Virginia Beach, decided to go to the nightclub around 11:00 p.m. with her two friends, Andria L. Burdette (“Burdette”) and Michelle McCammon (“McCammon”). Evans noticed Turner, whom she had not previously met, and commented to her friends about him. Evans and Turner began talking and continued socializing on and off for the remainder of the night. Evans also met Brown briefly, but she did not continue socializing with him. According to Brown, Evans [s]parked no interest” and he continued to purposefully drink excessive amounts of alcohol.

Around midnight, Burdette, who was the designated driver for the women, wanted to go home. Evans was still talking with Turner, and she wrote her phone number on a napkin and gave it to him. While Burdette and McCammon were waiting to leave, Evans stalled to continue talking to Turner. Turner and Evans seemed to be getting along very well, and at one point Turner sat in a chair while Evans perched on the armrest. Evans wanted to invite Turner back to their house, but Burdette refused.

Burdette and McCammon then walked out of the nightclub with Turner and Evans trailing behind them. The women entered their car, and while Evans sat in the back seat, Turner leaned against the back door and continued to talk with Evans through the open window. Turner offered to drive Evans home but Burdette refused the offer. Evans wanted to stay out longer, so Burdette and McCammon eventually agreed to leave Evans at the nightclub and return at 2:00 a.m. to take her home. Turner then “open[ed] the door with surprising force,” and Evans got out of the car and walked back toward the nightclub with Turner.

Around 1:15 a.m., Turner approached Kristen H. Bishop (“Bishop”), Brown's ex-girlfriend, who worked as a waitress at The Bayou but was off-duty that night and socializing with friends. Turner asked Bishop if she could give Brown a ride home if Turner did not return to the bar before it closed, and Bishop agreed. Bishop understood this to mean that [Turner] was planning on taking [Evans] home.”

Between 1:15 and 1:30 a.m., the lights came on at the nightclub, signaling that it was almost time to close. Around this time, Julio C. Fitzgibbons (“Fitzgibbons”), a Navy SEAL who had met Brown and Turner that night, spoke with Brown and Turner about their plans for the rest of the evening. Fitzgibbons testified that Turner said that he and Brown “were going to have a threesome” with Evans. Shortly thereafter, Evans approached and Turner introduced her to Fitzgibbons. Fitzgibbons “gave [Turner] a thumbs up,” and Turner returned the “thumbs up” and [h]ad a smile on his face.”

At approximately 1:35 a.m., Bishop saw Turner and Evans leave the nightclub holding hands. About ten minutes later, Brown told Bishop that he wanted to leave, but Bishop told him that she needed to wait a few minutes for her friend. At approximately 1:50 a.m., Brown became impatient and indicated an unwillingness to wait, so he left the nightclub and Bishop followed him outside. Bishop told him that she would wait for a few minutes to give him a ride home if Brown was not able to find Turner, and she waited on a bench outside of the nightclub for approximately five minutes. At approximately 2:10 or 2:15 a.m., Bishop went back inside the bar, found her friend, and walked back out to her car. Bishop and her friend drove around the parking lot looking for Brown, and she left the premises after she did not find 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 her around the parking lot and oceanfront area until around 6:00 a.m. but were unable to find her. Later that day, they filed a missing persons report with the Virginia Beach police. On the following Wednesday morning, after reading about Evans' disappearance in the newspaper, Bishop contacted the police and told them that she had seen Turner and Brown with Evans on the night Evans disappeared.

On June 21, 1995, at approximately 9:00 p.m., Special Agents Thomas L. Carter (“Agent Carter”) and Robert Elliot (“Agent Elliot”) of the Federal Bureau of Investigation (“FBI”) interviewed Turner at Fort A.P. Hill near Fredericksburg, Virginia. Turner told the agents that on Sunday night, he and Brown went to The Bayou, stayed until closing time, and then returned to the barracks by themselves.

When asked for further details, Turner said that he met two women at the nightclub that evening. Turner could not recall their names, but he said he continued to speak intermittently with the second woman, later identified by the agents as Evans, for the remainder of the evening. The woman was with two friends, who left the bar and planned to return around closing time to pick her up. Before the bar closed, the woman wrote her name and phone number on a cocktail napkin for him to call later in the week. Turner said that he and Brown left the nightclub while the woman was still waiting for her friends. After the agents continued to press Turner about the woman's name, Turner went to his barracks to retrieve the cocktail napkin, which had the name Jennifer and a phone number written on it.

In response to further questioning regarding Evans' disappearance, Turner told the agents that he had believed at some point during the evening that there might be a chance that [Evans] would agree to leave with him,” so Turner asked Brown to ride home with Bishop. However, Brown did not want to get a ride with Bishop, and Turner said that he told Evans he would try to contact her later in the week. Then, he and Brown left the nightclub alone. Turner also told the agents that neither he nor Brown had been drinking that evening. Agent Carter testified that throughout the interview, Turner appeared “very calm, very collected,” and “very forthright.”

Turner was subsequently interviewed on June 28, 1995, at the FBI headquarters in Richmond, Virginia, by Sergeant Thomas Baum (“Sergeant Baum”) of the Virginia Beach Police Department's homicide unit. Turner told Sergeant Baum that he didn't begin speaking to Evans until about 12:30 a.m. on the night he met her at The Bayou. Later, around 1:00 a.m., Turner said that Evans' friends wanted to leave, so he walked the women to their car. Evans agreed to stay with him at the nightclub longer, and her friends agreed to return to pick her up at closing time. Just after the lights went on signaling that the bar was closing, Turner and Evans discussed meeting later in the week, and she wrote her phone number on a napkin for him. Turner then returned to Brown, who was persistent on leaving, so Turner and Brown left the nightclub around 1:45 a.m. without Evans. Sergeant Baum testified that the interview was “conversational,” and Turner seemed “calm, cool,” and “very straightforward.”

Shortly after Sergeant Baum's interview, Turner was interviewed further by Detectives John T. Orr (“Detective Orr”) and Al Byrum (“Detective Byrum”) of the Virginia Beach Police Department. At first, Turner continued to adamantly deny any knowledge about what happened to Evans after he left her at the nightclub. However, as the officers “continued to speak to Turner, it became apparent that his denials became weaker and weaker” and his story began to change. Eventually, Turner told the detectives that he would “tell [them] what [they] want to know,” but that he needed to speak with his chief warrant officer first. After allowing him to do so, the detectives asked Turner where they could find Evans' body, and Turner described its location and drew a diagram of where it could be found. Later that afternoon, Turner traveled with the officers and helped them locate Evans' body. Turner also agreed to provide the police with his car and clothing from that night.

In response to direct questioning, Turner stated that he was not the person who killed Evans but that he was present when Brown killed her in Turner's car. Turner told the detectives that “Brown had choked Evans until she was dead” while they were in the parking lot of The Bayou.

After the police told Brown that Turner confessed and drew the map to the body, Brown wrote a statement for police that when he left the nightclub, he found Turner's car in the parking lot with Evans “passed out” in the backseat. Turner and Brown drove to a side street, parked the car, and they both began touching Evans. She woke up, started screaming, and Turner “started choking her. She stopped moving and we let go of her. She started spitting up some blood, and [Turner] started choking her again. [Brown] grabbed her arms and legs.”

Then, approximately an hour later, Brown told police that he had not been...

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