The en banc Court of Appeals has rejected a writ of actual innocence for Dustin Turner, the former Navy Seal trainee who has been serving time for a murder he says he did not commit.
Turner was convicted in 1996 of abduction with intent to defile and murder and sentenced to 82 years in prison.
Last August, a panel of that court split two-to-one in granting a writ of actual innocence, the first time a Virginia appellate court awarded the writ in a contested case.
Initially, Turner’s codefendant and fellow Navy Seal trainee Billy Joe Brown said Turner had killed Jennifer L. Evans, after the pair had met her in a Virginia Beach nightclub. But in 2002, Brown recanted and backed Turner’s testimony that Brown acted alone in killing Evans.
Brown’s changed story was credible, the en banc majority said, but ultimately it was not enough to grant the writ.
“The relevant question is not whether Brown acted alone in killing Evans, but whether Turner abducted her with intent to defile her,” the majority said.
The en banc court said a rational fact finder could conclude Turner used deception to abduct Evans with intent to have sexual intercourse against her will, and the abduction ended with her murder.
Citing evidence such as Turner’s comment to another Navy Seal that he and Brown were planning a “threesome” with Evans, the majority said Brown’s confession did not change the evidence of about Turner’s intent when he left the club with Evans.
The Court of Appeals dismissed Turner’s petition.
Code § 19.2-327.10 provides that either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia.
By Deborah Elkins