A divided panel of the Virginia Court of Appeals today granted the petition of a former Navy SEAL trainee for a writ of actual innocence in the murder of a woman in Virginia Beach in June 1995.
Dustin Allen Turner contended that a fellow trainee, Billy Joe Brown, was solely responsible for the murder of Jennifer L. Evans, although Turner admitted that he helped Brown dispose of Evans’ body.
The case was the first time an appellate court has granted such a petition in a contested case since state law was changed in 2004. The law allows a defendant to attempt to prove his innocence based on nonbiological evidence discovered more than 21 days after entry of a final order.
Last year, the attorney general’s office conceded that the conviction of a man for possessing a firearm after having been convicted of a felony was improper because the “firearm” in question was in fact a compressed gas pistol.
There was no such concession in the case of Turner, who was convicted of abduction with intent to defile and murder and sentenced to 82 years in prison.
Brown testified at Turner’s trial that they had gone to a nightclub where Turner had socialized with Evans. Turner arranged for him to get a ride home with someone else, but Brown objected to the plan and went looking for Turner in the nightclub parking lot.
When he approached Turner’s vehicle, Turner jumped out and said he had killed Evans and urged him to help dispose of her body, Brown testified.
Turner testified at his trial, however, that he and Evans were waiting in Turner’s car for her friends to return and pick her up when, Brown, who was extremely intoxicated, got into the rear seat behind Evans.
Brown made crude remarks to Evans and attempted to touch her, but Evans slapped his hand away, Turner testified. Brown then put his forearms around Evans neck and squeezed, Turner said. He said he tried to pry Brown’s arms from Evans’ neck but was unable to do so.
The two then took Evans’ lifeless body to a secluded spot and covered it with leaves. Brown was sentenced to 72 years in prison for his role in Evans’ death.
In 2002, Brown said he had converted to Christianity and want to tell the truth about Evans’ death. He made statements then and testified at a hearing on Turner’s petition that the killing of Evans occurred much as Turner had described it.
Virginia Beach Circuit Judge Frederick B. Lowe found Brown’s testimony credible, and the case went to the court of appeals panel to decide whether to grant the writ.
Appellate Judge Larry G. Elder and Senior Judge Sam W. Coleman III concluded that no rational trier of fact could have convicted Turner if it had heard Brown’s account of Evans’ murder and given the testimony the credibility that Lowe had accorded it.
Judge Cleo E. Powell dissented. She said a rational jury could have concluded that Turner had abducted Evans, so that he was guilty of felony murder when Brown killed her.
The majority concluded that Turner was guilty of being an accessory after the fact of the murder, but that crime carries a maximum penalty of 12 months in jail, and Turner has spent 13 years in prison.
By Alan Cooper