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HILLSVILLE — A man convicted of surprising his estranged wife and killing her Jan. 3, 2007, in her Ivanhoe home has filed an appeal.
Robert Allen Dutton, 57, was convicted in Carroll County Circuit Court of first-degree murder, use of a firearm and statutory burglary in the death of his wife of nearly eight years, Sandra Kay Dutton, 41, from gunshot wounds to the head and back.
Carroll deputies found her body on her bed, her keys in the lock on the open outside door, and her pocketbook and packages on the floor just inside an otherwise tidy house.
The couple had been living apart for about three months when the shooting occurred, after Sandra Dutton obtained a protective order against her husband. It ordered him to have no contact with her and to leave their Ivanhoe home.
Robert Dutton received a sentence of two life terms in prison plus three years for the convictions.
Key to the conviction against Dutton was testimony by two Carroll Sheriff’s Office investigators about statements he had made to them in an interview — though he ultimately refused to sign the statement that investigators wrote out while he talked.
Also significant were shotgun shells found at the scene in Ivanhoe and unfired shotgun rounds from Dutton’s truck that resembled each other, and had the same size shot and same machining marks.
A forensic examiner testified that DNA from both the victim and the accused was found on a shotgun shell recovered by deputies.
Dutton, while facing the jury and testifying on his own behalf at trial, flatly denied killing his wife, but the jury did not believe him.
In the brief submitted to the appeals court by defense attorney Jonathan Venzie, he makes some of the same arguments as in the trial court.
Venzie asks the appeals court to consider if the trial court made errors by failing to deny admission of Robert Dutton’s oral statements to investigators; by allowing DNA evidence on the shotgun shell to be brought up at trial; and whether tool marks on the shells are in fact significant.
Venzie concedes that Dutton had been read his Miranda warnings against self-incrimination when investigators had interrogated him. But, as at the trial, the defense attorney questioned why no recordings exist of the interview.
Recordings would have corroborated what police said that Dutton had told them, the defense attorney argued.
“This dispute is over what, if anything, was said by the defendant,” Venzie wrote.
Many factors, including the “need for accuracy,” would compel the introduction of an audio or video recording of the interview when being used against Dutton, the appeal request says.
The DNA evidence should have not been allowed at trial, Venzie argued. Testimony by the scientists sounded like evidence, but merely served to prejudice the jury against the defendant, he said.
“The discovery of the defendant’s DNA in a home he occupied for seven to eight years proves only that he lived there,” Venzie wrote. “Such evidence should be excluded on the ground that it lacks relevancy.”
The jury may have been swayed by this testimony.
“In this case, the jury had the hotly contested statement of the defendant to the police and little else,” Venzie said. “There is no fair assurance that the jury was not substantially swayed by the meaningless DNA evidence and it is impossible to conclude that substantial rights were not affected.”
Venzie had a similar argument about markings on shell casings used in the crime and the unspent ones found in Dutton’s truck.
The prosecution’s expert admitted that five million shells go through the same “bunter” machine, Venzie noted. Nor did the expert know how likely it would be for many shotgun rounds from that machine to end up in Carroll County or Southwest Virginia.
“With the incomplete evidence presented, such testimony should be excluded on the ground that it lacks relevancy,” Venzie wrote. The defense attorney felt the jury could have been swayed by “the misleading and incomplete tool mark evidence.”
Commonwealth’s Attorney Greg Goad has objected to granting an appeal in the Dutton case.
About the forensic testimony in question, Goad wrote that Virginia court precedents show evidence that helps to establish facts at issue is admissible in a trial.
“In this case, the evidence was a [spent] shotgun shell that was fired to murder the victim,” the prosecutor wrote. “The fact that defendant’s DNA was on the [spent] shell is very relevant and was properly admitted at trial, especially when one considers the defendant was forced to leave the home pursuant to the protective order issued Sept. 16, 2006.”
The tooling marks on the different shotgun rounds were likewise relevant and properly admitted at trial, Goad argued.