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Dennis v. Commonwealth

Supreme Court of Virginia

February 21, 2019


          PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Russell, S.J.



         In this appeal, we consider under what circumstances the Court of Appeals abuses its discretion by dismissing a petition for a writ of actual innocence based on nonbiological evidence without referring the matter to a circuit court for an evidentiary hearing.


         This case arises from the Court of Appeals' dismissal of Nathaniel Dennis' petition for a writ of actual innocence based on nonbiological evidence. As discussed below, the petition and its supporting evidence raised substantial factual questions, but the Court of Appeals resolved those questions on the record without referring any issues to a circuit court for an evidentiary hearing.

         A. The Underlying Offense

         On the night of October 8, 1997, Lynwood Harrison was working alone in his office located in the "Signs building" of the Daily Press newspaper facility in Newport News, Virginia. This building was kept locked at night, except for a side door near Harrison's office, which he unlocked for contractors who arrived to transport newspapers from the facility to retailers.

         At about 11:45 p.m., the cleaning crew, which Dennis supervised, began cleaning the building. Harrison did not see or interact with the cleaning crew, but he heard the "normal sound" of their cleaning cart moving across the floor. After twenty or thirty minutes, Harrison heard the cleaning crew leave the building and lock the side door behind them.

         A few minutes before 12:30 a.m., Harrison unlocked the side door to allow contractors to enter. Shortly thereafter, Harrison noticed someone standing at "the doorway coming from the front part of the building." Harrison testified that he was "certain" the intruder did not enter through the unlocked side door because that door "makes a noise" and the intruder did not come from that direction.

         Harrison observed that the intruder was advancing toward him holding a metal pipe in the air. He tried to retreat, but the intruder hit him in the face with the pipe. The intruder struck him in the arm as they "wrestled out into the hallway," where he knocked out one of Harrison's teeth. At that point, Harrison asked the intruder "why [he] was doing this?" The intruder responded by drawing a gun and saying, "If you resist any more, I will kill you." He then forced Harrison to the front of the building, where he instructed him to lie down. Even though Harrison complied, the intruder struck him again, then stated, "[s]tay here and you might just live through this" before walking towards Harrison's office. Once the intruder walked away, Harrison saw "the lights dim in the hallway" and "heard a couple of doors opening and closing."

         The intruder returned four or five minutes later. He retrieved a key from his pocket, used it to unlock a set of double doors, and placed the pipe outside the door. He asked Harrison where the keys to the truck parked outside were located, and Harrison replied that they were on the desk in his office. The intruder quickly went to and from Harrison's office, then grabbed Harrison off the floor and put him against a counter with the gun pointed at him.

         While this was happening, someone opened the side door and asked, "Is anyone here?" Harrison, being held at gunpoint, did not respond. The person who called out was Jerry Oxenburg, one of the expected newspaper contractors, who arrived at approximately 12:45 a.m. to pick up newspapers. He had noticed that the Signs building lights were out, which he found unusual. When he stepped in through the side door, he observed that Harrison's office was in disarray and noticed a figure ducking out of sight in the direction of the front door. Concerned that "something wasn't right," Oxenburg left the building to retrieve a gun from his car.

         The moment Oxenburg left to get his gun, the intruder shot Harrison three times, and then walked away towards Harrison's office and the rear of the building. Harrison managed to escape through the double doors the intruder had unlocked. Once outside, Harrison noticed the pipe laying by the door then continued to the side of the building calling out for Oxenburg, saying "Jerry, where are you? I've been shot." After reentering the building and seeing a "tall person" pointing a gun at him, Oxenburg retreated outside where he found Harrison "crawling on the ground." Oxenburg called the police around 12:57 a.m. Harrison described his assailant as a "black male, tall, thin build," and Oxenburg later reported to police that the figure he saw was a black male, about six feet, one inch in height, wearing dark clothes and wearing a rag of some sort on his head.

         The police arrived at the Daily Press at 1:01 a.m. and found Harrison's office "ransacked." The next day, a Daily Press employee reported to police that "there may have been $390 in Mr. Harrison's office at the time of the attack," and at that time, "the money [could] not be located." Harrison later testified that on the night of the attack, he was counting around $400 in his office and did not know what happened to it. He also stated that a bag of coins amounting to roughly $1200 was in his office that night.

         B. Investigation

         Detective Eugene Price investigated the attack with other officers. Price testified that "it was brought to [his] attention" during the initial hours of investigation that Dennis matched the description of Harrison's assailant. He spoke with Dennis while investigators were processing the crime scene. Dennis stated that he had left the Signs building around 12:30 a.m. Once investigators finished processing the scene, they turned the building over to the Daily Press midnight custodial crew-which included Dennis-for clean-up.

         The day after the attack, Price went to Riverside Hospital to interview Harrison. He asked Harrison if he knew anyone named Nathaniel Dennis, and Harrison replied that he did not. After Price left the hospital, Harrison realized that he had seen the name Nathaniel Dennis on Bernadette Harris' caller ID once when he was visiting her. Harrison had dated Harris, a fellow Daily Press employee, "off and on" in 1992, and they remained friends even though they were no longer dating at the time of the attack. The reason Harrison had observed Dennis' name on Harris' caller ID is that Harris had also dated Dennis between August 1996 and May 1997.

         When Harris came to visit Harrison at the hospital after the attack, he asked her about Dennis. She said that Dennis worked as a night supervisor in the Daily Press housekeeping department. Harrison then asked if Dennis was "tall, dark[-]skinned, [and] slim," and she replied that Dennis had those features. Harrison then sought a photograph of Dennis from the police. Price returned to the hospital a few days later with a photo spread of six people who matched the assailant's description "as close as possible." After studying the array for roughly thirty to forty-five seconds, Harrison identified Dennis as his attacker. Harrison stated that he had "no doubt" that the picture he selected depicted "the person that attacked [him] that night." Price then obtained warrants for Dennis' arrest.

         C. Trial

         Dennis was charged with attempted murder, malicious wounding, and use or display of a firearm during the commission of a felony. He pleaded not guilty to all charges and was tried by a jury. The Commonwealth first called Harrison, who described the attack and identified Dennis as his assailant. On cross-examination, Harrison testified that he had never seen Dennis before the attack. Defense counsel, however, impeached Harrison with a statement he wrote to Price while in the hospital stating that he had seen Dennis as he came in the Signs building during the two months before the attack. Harrison also testified that his attacker had an unusual accent. The record does not reveal what accent Dennis might have.[1]

         The Commonwealth also produced a number of witnesses whose testimony suggested a motive for Dennis' attack on Harrison. Florence McStay, who worked in the security office of the Daily Press, testified that Dennis twice inquired about Harrison and said that Harrison is "an arrogant black man. . . . He thinks he's better than anybody else. Instead of . . . downing his fellow black man he should be . . . trying to help him." Norman Taft, another person who worked at the Daily Press, testified that Dennis asked him if he knew Harrison. Edward Swinton, who worked with Dennis, similarly testified that Dennis asked him if he knew Harrison and also inquired where Harrison lived. When Swinton asked Dennis why he wanted to know where Harrison lived, Dennis replied that Harrison had something he wanted. Finally, Christopher Sydnor, who worked at the plant, testified that Dennis told him that "a black man in [Harrison's] position, he should watch how he treats other black men who aren't in the same position he's in."

         Patricia Farmer, a member of the housekeeping department night crew supervised by Dennis, testified that the crew began cleaning the Signs building between 11:30 p.m. and 12:00 a.m. and finished thirty to forty-five minutes later. She stated that after the crew left, Dennis locked the door and then gave her the key. Farmer remembered returning the key to Dennis later that night for him to check the key back in, but she could not remember when. After cleaning the Signs building, the crew proceeded to the "production building." Dennis left the crew members while they were inside the production building. Farmer stated she did not know where he went during that time. She testified that, once he returned, Dennis told the crew to stay together because something had happened. Farmer could not recall what time Dennis returned to the crew, but indicated that he was acting "fine" at that time.

         Dennis testified in his own defense at trial and denied attacking Harrison. He testified that after finishing in the Signs building, the cleaning crew went to the production building's third floor. He worked with the other crew members there for a while, then left to purchase a soda for Bonita Barnes, who worked on the first floor. Dennis stated that he purchased a soda on the second floor, and then gave it to her in the first-floor production room where she was working. Barnes testified that Dennis gave her the drink while she took a break at around 12:40 a.m. She said that she saw Dennis "walking around" a "variety" of other times that night and that she "usually" sees Dennis walking around during her shift from 11:00 p.m. to 7:00 a.m. Barnes acknowledged on cross-examination that she was not certain whether Dennis got her the drink on the night of the attack or on another night, but explained that "[i]t was pointed [out] to me that it was that same night." She did not say who pointed it out to her. Nevertheless, Barnes confirmed on redirect examination that she saw Dennis the night of the shooting.

         Dennis testified that, after giving Barnes the drink, he went to the spinning room, which is adjacent to the production room. He explained that if any "paper [was] left," he had to "spin" it there as one of his job duties. He stayed in the spinning room for "approximately 15 minutes," and estimated that it was about 12:55 a.m. when he left the spinning room for the production building's second floor to check on whether a piece of cleaning equipment was there. On his way out of the production building, he saw Barney Payne standing by a window. Payne told Dennis that he had "seen some car go by." Payne testified that while he was working in the press room on the night of the attack, he saw a car coming from the direction of the Signs building at an unusual rate of speed. He said the car "had to be going 25 miles an hour, because [he] thought, [s]omebody is crazy to be driving like that through the parking lot."

         After speaking with Payne-at about 1:00 a.m. by his estimate-Dennis walked behind the production building toward the security office, where the security guard, Celestine Pinckney-Lloyd, asked him to "mind the camera" because there had "been a shooting." He testified that he stayed and watched the cameras for fifteen to thirty minutes. Pinckney-Lloyd testified that Dennis walked into the security office and started talking to her at about 1:20 a.m. She stated that although she would not have ordinarily asked a cleaning crew supervisor to do so, she asked Dennis to watch the cameras because she "needed to go out to the scene where the injury was." She returned to the security office about fifteen minutes later.

         Pinckney-Lloyd also testified that keys to the Signs building had been reported missing before the night of the attack. In an interview with Detective Price, she explained that the security office maintains a log showing who checks out and returns keys. She stated that on the night of the attack, Dennis turned in a key to the Signs building at approximately 12:05 a.m., and said he was going for coffee. At trial, however, Pinckney-Lloyd did not mention seeing Dennis at this time or that he gave her a key to the Signs building.

         The jury found Dennis guilty of all charges. The circuit court sentenced Dennis to life imprisonment for malicious wounding, an additional ten and three years' imprisonment respectively for attempted murder and display of a firearm in the commission of a felony, and a total of $200, 000 in fines. The Court of Appeals affirmed his convictions on direct appeal. Dennis v. Commonwealth, Record No. 1285-98-1, 1999 WL 1133668, at *1 (Oct. 19, 1999). This Court refused his petition for appeal.

         D. Petition for Actual Innocence

         In May 2017, Dennis filed a petition for a writ of actual innocence based on nonbiological evidence in the Court of Appeals. The petition asserted that newly discovered evidence established that another Daily Press employee named Abdul Al-Musawwir, "who looks strikingly like Dennis," was actually responsible for the attack on Harrison. The evidence fell into three categories: (1) affidavits from Al-Musawwir's then-girlfriend, Koneta Walker, averring that he told her he had attacked someone before she picked him up from the Daily Press in the early morning hours of October 9, 1997, as well as affidavits from other witnesses supporting Walker's account; (2) five inmate affidavits averring that Al-Musawwir confessed to them that he shot Harrison; and (3) related evidence from a former Newport News police detective who reopened Dennis' case.[2]

         Al-Musawwir, whose former name is William Grant, has an extensive criminal history, including burglary, shooting into an occupied dwelling, and assault. He was convicted of two counts of first-degree murder and abduction in 1972, for which he received two life sentences. He served twenty-two years before being released on parole. In April 1998, he shot Walker in the back of the head at point-blank range. He told police that he "accidentally shot her" while trying to place a handgun under the passenger seat of the car they were in. She, however, explained that after she told him that she wanted to go home, he produced a revolver, "brought it up to her head[, ] and fired once." A jury convicted him of aggravated malicious wounding and sentenced him to life in prison, a sentence he is presently serving.

         Al-Musawwir worked as a Daily Press delivery driver in October 1997. Dennis maintains that this employment combined with his appearance shows that Dennis' conviction for the assault on Harrison is a case of mistaken identity. Police records created following Al-Musawwir's 1998 arrest for shooting Walker describe him as a thin black male, six feet tall, and weighing 185 pounds. Dennis argues that Al-Musawwir's appearance is consistent ...

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