Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Carrico, Lacy, and Koontz, S.JJ.
DUSTIN ALLEN TURNER
v. Record No. 101457 OPINION BY JUSTICE DONALD W. LEMONS
September 16, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
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.
2
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
3
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.
4
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."
5
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
6
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 honest and should "tell the truth." Brown wrote
7
another statement in which he explained that when he found
Turner's car in the parking lot, Evans was in the backseat and
Turner said, "Dude, I think I fucking killed her." Evans "had
blood running out of her nose and foam coming out of her mouth."
Turner and Brown drove away and dumped her body in the woods.
At his trial in May 1996, Brown testified that when he left
the nightclub and approached Turner's car, he saw "two heads in
the back [of the car]" before Turner jumped out and demanded
that Brown get into the car. When he got into the car, Brown
saw Evans lying in the back seat with "blood coming out of her
nose" and "foaming out of the mouth," and her clothes were open
with her breasts exposed. Brown testified that Turner said, "I
think I fucking killed her." Brown said that he pulled her body
down to the floorboard, and he thought she was dead because he
saw no signs of life.
Brown said that Turner started driving away and said, "I
know what we'll do. . . . We'll take her to the beach, we'll
rape her, throw her in the water[] and [t]he cops will think she
drowned." Brown was in and out of consciousness in the car, but
he remembered that they drove on "the [6]4 freeway" and pulled
off in a wooded area to dump Evans' body. Brown testified that
two days later, Turner told him that he was attempting to have
sex with Evans in the parking lot, but when she tried to stop
him, Turner "put his forearm on her throat and pushed her back."
8
Turner said that "the next thing he knew [Evans] started
spitting up blood and foam." Despite this testimony, Brown was
convicted in June 1996 of murder, abduction with intent to
defile and attempted rape, and he was sentenced to 72 years in
prison and a $63,000 fine.
Turner's trial for murder and abduction with intent to
defile began on August 26, 1996. Charlotte Lowe ("Lowe"), the
forensic supervisor who analyzed the crime scene, testified that
Evans' body was found in an advanced state of decomposition and
skeletalization from being in the heat, sun, and elements for
nine days. Evans' vest was pulled back and her bra was pulled
up, exposing her breast. Her belt was unfastened, and her
shorts and underwear had been pulled down so that they were only
around one leg. Lowe also examined Turner's car for semen,
fingerprints, and other physical evidence, but she found nothing
of forensic value and no evidence suggesting that any sexual
activity occurred inside the car.
Dr. Leah Bush ("Dr. Bush"), Assistant Chief Medical
Examiner for the Commonwealth of Virginia in the Tidewater
district, performed the autopsy on Evans' body and testified
that it was impossible to determine the exact cause of death
because her body was severely decomposed. However, she opined
that manual strangulation was a possible cause of Evans' death,
and she described the various chokeholds that could have led to
9
Evans' death. Dr. Bush stated that when strangled, a person
becomes unconscious "very quickly," within ten to thirty
seconds. However, the time required to cause death depends on
the chokehold used, varying from "several seconds" to "less than
a minute" to "three to five minutes." Dr. Bush conclusively
ruled out a broken neck as a cause of death because Evans'
spinal cord did not show signs of fracture.
Todd P. Ehrlich ("Ehrlich"), a Navy SEAL who completed some
training with Brown and Turner, testified that Brown and Turner
had spoken previously about engaging in group sex.
Specifically, Ehrlich testified that on June 16, 1995, two days
before the night of Evans' disappearance, Turner and Brown were
socializing with two women at a bar in Fredericksburg. Ehrlich
saw Turner alternating between talking to one of the women and
then talking to Brown to give him a "progress report" in their
attempts to convince the woman to "go home with them." Ehrlich
also testified that he witnessed Brown and Turner engage in
group sexual intercourse with a woman while the three men were
stationed in California in 1994. Ehrlich testified that Turner
and Brown bragged about how they later engaged in group sex
again with the same woman. Ehrlich could not remember what
specific statements Turner made about group sex, and he
testified that there was never any suggestion that the woman
10
involved was forced to act against her will or that the sexual
activity involved physical violence.
At the conclusion of the Commonwealth's evidence, Turner
moved to strike, arguing that the evidence was insufficient for
the jury to find abduction with the intent to defile or murder.
The trial court denied the motion, stating, "I don't think that
[Evans] went knowingly and voluntarily with [Turner] to the
parking lot or to his car for the purposes of engaging in a
'threesome' or what has been described as group sex with
[Turner] and [Brown]; but we certainly know from the evidence in
this case that that was [Turner's] intent." The trial court
further stated,
It's clear from all the circumstances in evidence
in this case that [Turner] had a sexual mode; and,
of course, his specific intent to defile or
sexually molest, as the law has stated many times,
is derived not only from his conduct but from his
statements as well.
I certainly don't think that Jennifer Evans
voluntarily left The Bayou with [Turner] and
[Brown] for the purposes for being sexually
molested and certainly not to be killed. . . .
From all the evidence presented, we know that
Jennifer Evans had made very specific plans to meet
her two friends back in the parking lot of The
Bayou nightclub at approximately 2:00 a.m. when it
closed, and that was less than an hour from the
time that she was seen returning to the nightclub
with [Turner]. [Turner] was present when those
plans were made. . . .
The court is of the opinion, therefore, that
the evidence in this case is sufficient to find
11
[Turner] guilty of both [abduction with intent to
defile and murder] and the motion to strike will be
overruled.
Turner testified in his own defense and stated that he did
not kill Evans, nor did he ever intend to have sex with her.
According to Turner, he and Evans discussed going to the beach
to continue talking, but they abandoned that idea because it
would have been impossible to do so and still return to the club
by 2:00 a.m. to meet her friends. Turner also stated that when
he informed Brown that Bishop would give him a ride home, Brown
was "extremely drunk" and "seemed a bit angry at something," and
Turner was not sure "if it was at [him] because [he] kind of
palmed [Brown] off to get him a ride." He denied mentioning a
"threesome" or group sex to Fitzgibbons.
Turner testified that he and Evans went to his car to
listen to music and wait for her friends. While waiting, Turner
saw Brown approach the car and told Evans to "pay no attention
to this guy. He's drunk. Don't believe a word he says." Brown
then entered the car and sat in the back seat directly behind
Evans. Immediately, Brown began cursing and making belligerent
remarks about Turner and Bishop. Then Brown shifted his
attention toward Evans, and he made belligerent and vulgar
comments to her, including asking if she was a virgin or had
ever "had sex with a frogman." Turner could tell that Evans was
12
uncomfortable, and he told Brown to "chill out." Brown started
touching her hair, and Evans slapped his hand away.
Turner saw Brown respond by putting both of his arms around
Evans' neck. Turner testified that "it was like boom. I looked
over. It was like a jerk and an instant motion." Turner said
that "[Brown's] arms were around her, [Brown] was pulling back;
[Brown] was really squeezing, and she wasn't even moving."
Turner testified that he tried to pry Brown's arms from her
neck, and at the same time Brown was yelling at Turner to
"[j]ust drive." "[E]ventually [Turner] pried [Brown's] arms off
of [Evans], and she was just limp." Turner checked to see if
she was breathing and checked her neck for a pulse, but he did
not feel anything. Brown continued to yell at Turner to drive,
and Turner complied.
As Turner was driving, Brown reclined the passenger seat
back and started "moving his hand into [Evans'] pants." Turner
yelled at him to stop, and Brown "just sat back and passed out."
Turner drove to a secluded wooded area, where he and Brown took
Evans' body out of the car. Turner returned to his car to look
for a shovel, and when he returned, Brown was laying on top of
Evans' body. Turner pulled Brown off, and Brown said, "It
doesn't matter because I couldn't get it – a hard on anyway."
Turner testified that they "grabbed some leaves and sticks and
placed them on top of [Evans]" and left. Upon leaving the scene,
13
Brown again passed out in the car, but when he woke up he said
that he was hungry so they stopped at a diner just outside of
the military base.
The following morning, Turner and Brown met and signed a
lease to be roommates for the coming year. Turner testified
that on that day, Brown said to him, "I know what I did was
stupid, and I'm sorry. I know it was stupid, but we've got to
stick together now . . . . We're both in this now. We've got
to stick together."
Concerning the false statements he made to police, Turner
testified that he "felt like [he] couldn't turn back at that
point, so [he] lied to the police to cover up for Brown." He
confirmed talking with Fitzgibbons at The Bayou, but he denied
talking about engaging in a "threesome" with Brown and Evans.
In response to Ehrlich's testimony about group sexual
intercourse with a woman in California, Turner stated that "it
all center[ed] around one incident and bragging about that one
incident." Turner stated that he knew Evans would not have sex
with him because "[j]ust from the short time that [he] knew
[Evans], [he knew that] she wasn't that type of girl at all."
At the conclusion of his trial, the jury was instructed on
the legal theories of concert of action, principal in the first
and second degrees, abduction with intent to defile, first
degree felony murder, and accessory after the fact. On
14
September 5, 1996, the jury found Turner guilty of abduction
with intent to defile, in violation of Code § 18.2-48, and first
degree felony murder, in violation of Code § 18.2-32. The trial
court imposed the jury's recommended sentence of 82 years in
prison fixed by the jury.
Both Turner and Brown unsuccessfully appealed to the Court
of Appeals and this Court, and, thereafter, both unsuccessfully
sought state and federal habeas corpus relief. In all of his
petitions, Brown repeatedly asserted that it had been Turner who
had killed Evans.
On July 2, 2002, Brown provided a tape-recorded interview
to Turner's attorney in which he confessed to acting alone in
killing Evans, and he stated that "[his] actions in choking
[Evans] came as a complete surprise to [Turner]." Brown said
that he spontaneously choked Evans and then blamed Turner
because he was angry that Turner betrayed him by telling the
police what happened and where Evans' body was located.
On February 28, 2003, Brown signed an affidavit
memorializing his statements from the taped interview. In the
affidavit, Brown reiterated that he alone killed Evans, and
that, "as a Christian, [he] can no longer allow someone who is
innocent to continue to pay for what [he] did."
Code § 19.2-327.10 confers original jurisdiction upon the
Court of Appeals of Virginia to consider a petition for a writ
15
of actual innocence based on newly-discovered, non-biological
evidence filed by any individual "convicted of a felony upon a
plea of not guilty." Based on Brown's recantation, Turner filed
a petition for a writ of actual innocence based on non-
biological evidence in the Court of Appeals of Virginia,
alleging that he was innocent of the crimes for which he was
convicted. In support of his petition, Turner submitted into
evidence Brown's signed affidavit.
To obtain a writ of actual innocence, Turner must prove
that the newly-discovered evidence
1) "was previously unknown or unavailable to
the petitioner or his trial attorney of
record at the time the conviction became
final in the circuit court;" Code § 19.2-
327.11(A)(iv)(2),
2) "is such as could not, by the exercise of
diligence, have been discovered or obtained
before the expiration of 21 days following
entry of the final order of conviction by
the court;" Code § 19.2-327.11(A)(vi),
3) "is material and when considered with all of
the other evidence in the current record,
will prove that no rational trier of fact
could have found proof of guilt beyond a
reasonable doubt;" Code § 19.2-
327.11(A)(vii), and
4) "is not merely cumulative, corroborative or
collateral." Code § 19.2-327.11(A)(viii). 1
1
The fourth and final issue was added upon Turner's motion
to amend the order.
16
Carpitcher v. Commonwealth, 273 Va. 335, 343-44, 641 S.E.2d 486,
491 (2007).
In support of his petition, Turner asserted that the
physical evidence and testimony is consistent with Brown's
confession, and it "will prove that no rational trier of fact
would have found [Turner] guilty beyond a reasonable doubt of
the charges." Turner argued that "Brown's confession clears
[Turner] of any wrong-doing other than being an accessory after
the fact."
In support of its motion to dismiss the petition, the
Commonwealth argued that the petition was without merit because
"Brown's credibility has been so hopelessly compromised by his
ever-evolving, conflicting accounts of his and Turner's actions
on the night Evans was murdered that a reasonable trier of fact
would hardly be compelled to credit his version of history."
The Commonwealth asserted that even if a jury were to believe
Brown's recantation, the other evidence against Turner was
sufficient to find him guilty of murder and abduction with
intent to defile either as a principal in the second degree or
under the felony murder doctrine.
A panel of the Court of Appeals denied the Commonwealth's
motion to dismiss and entered an order finding that resolution
of the case required further development of the facts, and,
pursuant to Code § 19.2-327.12, it remanded the matter to the
17
circuit court 2 to certify findings of fact regarding the
following issues:
1) whether Brown's recanted testimony is credible in his
assertion that he testified falsely at the
petitioner's trial,
2) if the answer to Question #1 is "yes," did Brown
testify falsely as to any material fact,
3) if the answer to Question #1 is "yes," was Brown's
recantation testimony unknown or unavailable to the
petitioner or his counsel at the time the conviction
became final, or could such recantation testimony,
through the exercise of diligence, have been
discovered or obtained before the expiration of 21
days following the entry of the final order of
conviction, [and]
4) is Brown credible in his assertion that he acted
independently in murdering the victim and that Turner
had no role in the murder or any restraint of the
victim? 3
During a two-day hearing, the circuit court heard testimony
from both Brown and Turner. Brown testified that on the night
of June 18, 1995, he purposefully consumed excessive amounts of
alcohol. Brown confirmed that Turner arranged for Bishop to
give Brown a ride home so that Turner could spend more time with
Evans, but Brown became impatient and left the nightclub. Brown
admitted that, by this point, he was extremely intoxicated and
on the verge of passing out. He testified that he found
2
Herein, the term "trial court" will be used to designate
the courts where the actual trials of Brown and Turner took
place. The term "circuit court" will be used to designate the
court where the hearing upon remand took place.
3
The fourth and final issue was added upon Turner's motion
to amend the order.
18
Turner's car in the parking lot and climbed into the back seat
behind Evans. He testified:
I was talking to [Turner and Evans]. I said
something – I don't even remember – and I started
playing with [Evans'] hair, and then I think I
sat back in the seat, and then one minute I was
normal and the next minute I snapped and I
started choking her; and I think [Turner] – I
believe I recall him trying to pull my arm away.
I believe he did. I'm not 100 percent sure, but
I believe so. Then I continued to choke her and
then I told him to drive and he started to drive.
He stated that he choked Evans by putting his left arm against
her neck and holding it against the seat's headrest with his
right arm.
Brown also admitted to providing police with conflicting
accounts of how the murder occurred and that he repeated the
lies at his own trial. He testified that he lied about Turner's
involvement in the murder because he was angry with Turner
because he "snitched" and told police where Evans' body was
located. However, after he converted to Christianity, he knew
that he needed to come forward and tell the truth. Brown said
that it was difficult to "stand up before the whole world and
tell them not only [that he was] a murderer and a liar but [also
that he] betrayed [his] best friend."
Still, Brown's testimony before the circuit court was
inherently conflicting. Brown stated that while he was at The
Bayou, he "purposely decide[d] not to talk to any girls" because
19
he was in a relationship. He stated that usually when he went
to bars, "my goal was either one of two things: Meet a girl and
have sex or drink lots of alcohol. And since that night I
wasn't looking to have sex with anybody, I just decided to drink
lots of alcohol." During his original trial, he also testified
that Evans "[s]parked no interest for [him]." However, Brown
also admitted that just a short time later, he defiled Evans'
body by undressing her in the car, "moving his hand into her
pants," and he removed Evans' vest and pulled her pants down.
He also testified that he attempted to have sex with Evans' body
after he and Turner placed it in the woods but that Turner
stopped him.
Additionally, during cross-examination, the Commonwealth
questioned Brown about a second version of his affidavit
("second affidavit"), in which Brown stated that he had to
strangle Evans twice to kill her. This testimony was in
contradiction to the affidavit submitted in support of Turner's
petition ("first affidavit") and Brown's earlier testimony
during direct examination, both of which proffered evidence
showing that Evans died instantly. Specifically, during the
cross-examination the following exchange occurred:
[Commonwealth:] Let me read you a few
sentences of this affidavit you signed. [Turner]
did not encourage me in any way and, in fact, I
remember one instance while I was choking [Evans],
[Turner] tried to pull my hands away. [Evans]
20
became unconscious and I believed she was dead. I
fell back in the seat, and she woke up. I then
choked her again until blood came out of her nose
and am certain she was dead at that time. . . .
That statement reflects, does it not, that
she was not killed instantly or rendered helpless
instantly but, in fact, revived and you had to
choke her a second time, correct?
[Brown:] Yes. . . .
[Commonwealth:] [W]as there a period where
she was seemingly unconscious or worse and then
revived and then you had to assault her a second
time? Is that, in fact, the case?
[Brown:] Yes. Yes.
Upon review of this record, it is apparent that two
versions of Brown's affidavit existed. Both versions of the
affidavit bear the same date, as well as an identical
handwritten statement and signature by Brown. However, the font
utilized on the second page of the second affidavit is different
than the font utilized on the second page of the first
affidavit. It would appear that a change of font was necessary
to begin and end the second page with the same words. The only
reasonable conclusion to be drawn from these two versions is
that, at some point before the circuit court's evidentiary
hearing, the second page of the three-page affidavit was
substituted.
The two versions of Brown's affidavit differ significantly
in their substance. In the first affidavit, which was presented
21
in support of Turner's petition, Brown stated that Evans died
almost instantly:
We were sitting there [in the car] talking and
next thing you know I reached up and choked
[Evans]. I did this on my own without any prior
discussion with [Turner]. He did not encourage
me in any way and in fact, I remember one
instance while I was choking [Evans], [Turner]
trying to pull my hands away. [Evans] became
unconscious and I am certain she was dead at that
time
. . . .
[Turner] was my friend, but I told the
police he was involved when I was informed he had
"rolled" on me and had told the authorities where
[Evans'] body was located.
In the second affidavit, Brown stated that Evans revived:
We were sitting there [in the car] talking and
next thing you know I reached up and choked
[Evans]. I did this on my own without any prior
discussion with [Turner]. He did not encourage
me in any way and in fact, I remember one
instance while I was choking [Evans], [Turner]
trying to pull my hands away. [Evans] became
unconscious and I believed she was dead. I fell
back in the seat and she woke up. I then choked
her again until blood came out of her nose and [I
was] certain she was dead at that time.
Brown's testimony during direct examination was consistent
with the first affidavit; however, during cross-examination,
Brown's testimony was consistent with the second affidavit.
Despite these contradictions, the circuit court made the
following findings:
This court determines that Mr. Brown's recanted
testimony is credible in his assertion that he
testified falsely at his own trial. This court
22
determines that Mr. Brown testified falsely at
his own trial as to a material fact in the case.
This court further finds that Mr. Brown's
recantation of his earlier testimony was unknown
and was unavailable to the petitioner in this
proceeding, Mr. Turner, at the time of his
conviction and at the time his conviction became
final. And this court finally finds that Mr.
Brown is credible in his assertion that he acted
independently in murdering the victim and that
Mr. Turner had no role in the murder or in the
restraining of the victim.
It is clear from this record that at the time of the
evidentiary hearing, neither Turner, the Commonwealth, nor the
trial court were aware that two affidavits were in existence.
Apparently, each lawyer thought that they were utilizing the
same document. The confusion on the matter was resolved after
the circuit court's findings were transmitted to the Court of
Appeals. Then, in this original jurisdiction proceeding, the
Commonwealth submitted the second affidavit to the Court of
Appeals without objection from Turner.
In a 2-1 decision, a panel of the Court of Appeals granted
Turner's request for a writ of actual innocence, vacated his
convictions for murder and abduction with intent to defile, and
held that, at most, he could be found guilty of being an
accessory after the fact to murder. Turner v. Commonwealth, 54
Va. App. 458, 680 S.E.2d 312 (2009). Citing Carpitcher, 273 Va.
at 342-43, 641 S.E.2d at 490, the panel held that "we cannot say
that the circuit court's factual findings are plainly wrong or
23
without evidence to support them and, therefore, we are bound by
these findings." Turner, 54 Va. App. at 475-76, 680 S.E.2d at
321.
In light of the circuit court's determination that "Turner
played no role in the murder or in the restraining of the
victim," the panel concluded that "the circuit court's use of
the word 'restraint' constitutes a finding that Turner did not
participate with Brown in an abduction by either force or
deception." Id. at 479, 481, 680 S.E.2d at 323. Instead, the
panel held that Brown "acted as an independent and superseding
force so that his actions constituted a separate – and
completely coincidental – enterprise with no causal connection
to Turner's own conduct." Id. at 482, 680 S.E.2d at 324.
The panel further held that "the evidence is insufficient
to support a finding beyond a reasonable doubt that Turner made
any statement or engaged in any act showing an intent to deceive
Evans for the purpose of sexually molesting her against her
will," which precludes "any rational trier of fact from finding
Turner guilty beyond a reasonable doubt of abduction with intent
to defile." Id. at 484, 680 S.E.2d at 325. Rather, "[i]n light
of Brown's recantation, the evidence proves beyond a reasonable
doubt, at most, that when Turner invited Evans to wait in his
car for her friends, he did so with the hope of persuading her
to have consensual sexual contact." Id. at 487, 680 S.E.2d at
24
327. The panel concluded that the evidence was sufficient to
find Turner guilty of being an accessory after the fact, and it
remanded the case to the circuit court to modify his conviction.
Id. at 491-92, 680 S.E.2d at 329.
However, the Court of Appeals granted the Commonwealth's
petition for a rehearing en banc, Turner v. Commonwealth, 54 Va.
App. 699, 682 S.E.2d 77 (2009), and, upon rehearing, dismissed
Turner's petition for a writ of actual innocence. Turner v.
Commonwealth, 56 Va. App. 391, 694 S.E.2d 251 (2010). The five-
judge majority held that while it was bound by the circuit
court's credibility determination, "a rational fact finder could
have found that Turner abducted Evans by deception – meaning no
finding of force or restraint would have been required – and
that the abduction ended with Evans' murder." Id. at 419, 694
S.E.2d at 265.
In support of its holding, the Court of Appeals relied on
circumstantial evidence supporting deception, including Turner's
request to Bishop to give Brown a ride home, Turner's
conversation with Fitzgibbons about a "threesome" he was going
to have with Evans, evidence of Evans' character, Turner's rude
behavior toward Evans' friends, his "callous disregard" for
Evans' body, his lead role in finding an isolated location to
dispose of her body, and Turner's lies to the police. Id. at
424-27, 694 S.E.2d at 267-69. Based on this evidence, the Court
25
of Appeals dismissed Turner's request for a writ of actual
innocence and denied his request to vacate his convictions for
murder and abduction with intent to defile. Id. at 429, 694
S.E.2d at 270.
Turner timely filed his notice of appeal to this Court, and
we awarded Turner an appeal on the following assignments of
error:
1. The Court of Appeals erred in refusing to grant the
writ of actual innocence and vacate Turner's
convictions for murder and abduction with intent to
defile.
2. The Court of Appeals erred in ruling that "a rational
fact finder could have found that Turner abducted
Evans by deception – meaning no finding of force or
restraint would have been required – and that the
abduction ended with Evans' murder."
3. The Court of Appeals erred in ruling that "it cannot
be said that Brown's credible recantation provides
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, Turner was properly convicted of abduction
with intent to defile and murder."
We also granted the Commonwealth's assignment of cross-error:
1. The Court of Appeals wrongly held that it was bound by
the circuit court's finding that the co-defendant's
post-trial statements were "credible."
II. Analysis
A. Standard of Review
We apply the standard of review as set forth in Carpitcher
and Johnson v. Commonwealth, 273 Va. 315, 641 S.E.2d 480 (2007),
26
in which we considered appeals from the Court of Appeals'
dismissals of petitions for a writ of actual innocence based on
non-biological evidence. We held that
in an appeal from the Court of Appeals' dismissal
of such a petition, we will review de novo the
Court of Appeals' conclusions of law and its
conclusions based on mixed questions of law and
fact. However, when the Court of Appeals has
referred issues in the case to a circuit court
for factual findings under the provisions of Code
§ 19.2-327.12 and the Court of Appeals has
approved those findings, we will be bound by the
factual findings unless they are plainly wrong or
without evidence to support them.
Johnson, 273 Va. at 321, 641 S.E.2d at 483 (citations omitted).
B. Abduction with Intent to Defile and Felony Murder
Pursuant to Code § 19.2-327.12, the Court of Appeals may
refer factual issues in a petition for a writ of actual
innocence to a circuit court:
If the Court of Appeals determines . . . that a
resolution of the case requires further development
of the facts, the court may order the circuit court
in which the order of conviction was originally
entered to conduct a hearing . . . to certify
findings of fact with respect to such issues as the
Court of Appeals shall direct.
This statute gives the Court of Appeals broad discretion to
certify to the circuit court issues of fact that must be
resolved before deciding the merits of a petition. Johnson, 273
Va. at 322, 641 S.E.2d at 484.
As we explained in Carpitcher, "to be 'material' within the
meaning of Code § 19.2-327.11(A)(vii), evidence supporting a
27
petition for a writ of actual innocence based on non-biological
evidence must be true." 273 Va. at 345, 641 S.E.2d at 492.
"Because the Court of Appeals cannot hold its own evidentiary
hearing to assess a witness' credibility, but must ultimately
determine whether a recantation is true, Code § 19.2-327.12
provides a mechanism to assist the Court of Appeals in this
task." Johnson, 273 Va. at 322, 641 S.E.2d at 484.
When the circuit court conducts its evidentiary hearing, we
have observed that
[T]here is no mandatory formula for a
circuit court's consideration of the credibility
of a particular witness. As the trier of fact,
the circuit court is charged with the
responsibility of considering various factors,
including the witness' demeanor, his opportunity
for knowing the things about which he has
testified, his bias, and any prior inconsistent
statements relating to the subject of his present
testimony. In addition, the circumstances of a
particular case may raise other factors that the
circuit court deems relevant in assessing a
witness' credibility.
Id. at 323, 641 S.E.2d at 485. In reviewing the circuit court's
factual findings, we have explained that
[s]uch factual findings are similar to circuit
court findings made under Code § 8.01-654(C) in
habeas corpus cases in which we have original
jurisdiction and have referred factual issues to
the circuit court for an evidentiary hearing.
Therefore, we will apply to the factual findings
contained in the record of the Court of Appeals a
standard of review similar to the standard we apply
to factual findings entered in our original
jurisdiction habeas corpus proceedings. We will be
bound by the factual findings in the present
28
record, as approved by the Court of Appeals, unless
they are plainly wrong or without evidence to
support them.
Carpitcher, 273 Va. at 342-43, 641 S.E.2d at 490.
In Carpitcher, we observed that
recantation evidence is generally questionable in
character and is widely viewed by courts with
suspicion because of the obvious opportunities and
temptations for fraud.
Unless proven true, recantation evidence
merely amounts to an attack on a witness'
credibility by the witness herself.
Id. at 346, 641 S.E.2d at 492 (citations omitted). In
considering Brown's recantation testimony here, as we stated in
Lewis v. Commonwealth, 193 Va. 612, 626, 70 S.E.2d 293, 302
(1952), "while we know from his lips that [he] spoke falsely on
one occasion, this does not establish that his testimony at the
trial was false and the statements in the subsequent affidavit
were true." At the circuit court's evidentiary hearing, Brown
admitted that before signing the affidavit, 4 he gave six
different statements – including one under oath – regarding the
circumstances of Evans' death, and each of them differed
substantively from his affidavit and testimony before the
circuit court.
However, beyond its questionable reliability, Brown's
recantation testimony was rife with conflicting statements.
4
Presumably, Brown was referring to the first affidavit,
which was part of Turner's petition.
29
Brown stated that while he was at The Bayou, he "wasn't looking
to have sex with anybody," and he testified that Evans
"[s]parked no interest for [him]." However, he admitted that
just a short time later, he defiled Evans' body by undressing
her body in the car, "moving his hand into her pants," and by
attempting to have sex with her body when he and Turner placed
her in the woods. These statements regarding Brown's sexual
desire are inherently conflicting and undermine the credibility
of his testimony.
The inconsistencies are most glaring when we consider
Brown's disparate accounts of Evans' death, both in the two
affidavits and in his testimony before the circuit court.
Brown's testimony during direct examination matched his
statement in the first affidavit – that when he began to
strangle Evans she died almost instantly. Brown testified that
her death was so quick that Turner "would have had virtually no
chance to react and try to save her."
However, according to the second affidavit and Brown's
testimony during cross-examination, Evans "revived" and Brown
had to strangle her again to kill her. Before the circuit
court, Brown affirmed the statement he made in the second
affidavit – that after he began choking Evans,
[she] became unconscious and I believed she was
dead. I fell back in the seat, and she woke up. I
30
then choked her again until blood came out of her
nose and [I was] certain she was dead at that time.
Brown confirmed that "[Evans] was not killed instantly or
rendered helpless instantly but, in fact, revived and [Brown]
had to choke her a second time." Finally, on re-direct
examination, Brown testified that by stating that Evans
"revived," he meant that "[s]he took in a deep breath," and he
stated that it was only a matter of one or two seconds from the
time that she revived until the time he began to choke her
again.
The circuit court's focus was upon the wrong issues. The
circuit court stated that it "finds" that Brown "acted
independently in murdering the victim and that Mr. Turner had no
role in the murder," and that Turner did not engage "in the
restraining of the victim." To the extent that this "finding"
suggests that the offense of abduction did not occur, it is a
conclusion of law that we review de novo. Commonwealth v.
Morris, 281 Va. 70, 76, 705 S.E.2d 503, 505 (2011). Whether
Turner committed abduction with intent to defile and whether
Turner is guilty of felony murder under these facts are
questions of law. We will focus upon the legal conclusions that
the circuit court reached that are not entitled to the
traditional deference we afford to credibility findings.
31
Because Turner was found guilty of felony murder, the
relevant question before us is not whether Brown acted alone in
choking Evans or restraining her as Turner claims and as Brown
now alleges, but rather whether Turner abducted Evans with the
intent to defile her. The fact that Brown now confesses that he
acted alone in restraining and choking Evans does not absolve
Turner of his guilt.
Code § 18.2-47 does not use the word "restraint" in its
definition of abduction. Use of that word in the context of
abduction comes from our case law. For example, in Jerman v.
Dir., Dept. of Corrections, 267 Va. 432, 439, 593 S.E.2d 255,
259 (2004), the word "restraint" is used to describe how the
particular facts of that case satisfied the elements of the
offense. Concerning this case, the elements of the offense of
abduction require seizing, taking, transporting, detaining or
secreting another person with the intent to deprive such other
person of his or her personal liberty. Code § 18.2-47.
Significantly, the elements of the offense require that such
acts be accomplished by "force, intimidation or deception." Id.
The issue in Turner's case is not restraint; rather, it is
deception. In this regard the circuit court's "finding" that
Turner did not restrain the victim does not address the issue of
deception.
32
A defendant is guilty of first degree murder under Code
§ 18.2-32 where the killing occurs "in the commission of, or
attempt to commit, arson, rape, forcible sodomy, inanimate or
animate sexual penetration, robbery, burglary or abduction."
This statute codifies the common law doctrine of felony-murder
and, "when supported by the evidence, operates to elevate to
second-degree murder a homicide committed during the commission
of a felony by imputing malice to the killing." Commonwealth v.
Montague, 260 Va. 697, 700, 536 S.E.2d 910, 912 (2000) (citing
Heacock v. Commonwealth, 228 Va. 397, 403, 323 S.E.2d 90, 93
(1984); Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d
811, 814 (1981)). The felony murder statute applies "where the
initial felony and the homicide were parts of one continuous
transaction, and were closely related in point of time, place,
and causal connection." Haskell v. Commonwealth, 218 Va. 1033,
1041, 243 S.E.2d 477, 482 (1978).
The question before us is a narrow one. Code § 19.2-
327.11(A)(vii), requires that the newly-discovered evidence be
"material and when considered with all of the other evidence in
the current record, will prove that no rational trier of fact
could have found proof of guilt beyond a reasonable doubt." Of
course, in order to be material, the evidence must be true.
Additionally, "[e]vidence that relates to a matter that is
properly at issue in the case is said to be material." Charles
33
E. Friend, The Law of Evidence in Virginia § 11-1 at 431 (6th
ed. 2003). The newly-discovered evidence in this case is not
material.
Turner's assignments of error and argument focus upon proof
of abduction with intent to defile. Brown's recantation focuses
upon whether he alone restrained and choked Evans. The
pertinent circuit court "finding" is that Brown "acted
independently in murdering the victim and that Mr. Turner had no
role in the murder or in the restraining of the victim."
Significantly, Brown's recantation and the circuit court's
"finding" do not address the issue raised by Turner's
assignments of error and argument.
Turner argues that no rational trier of fact, upon
consideration of Brown's recantation, could find Turner guilty
beyond a reasonable doubt of abduction with intent to defile.
Because nothing in Brown's recantation is material to this
issue, the evidentiary record on this issue, with and without
the recantation, is essentially the same.
Simply stated, nothing in Brown's recantation or the
circuit court finding has any bearing on the question presented
in this petition. Turner has not met his evidentiary burden
under the statutory provisions.
34
III. Conclusion
The Court of Appeals did not err in dismissing Turner's
petition for a writ of actual innocence and in denying his
request to vacate his convictions for murder and abduction with
intent to defile. Accordingly, we will affirm the judgment of
the Court of Appeals.
Affirmed.
35