PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and
McCullough, JJ., and Russell, S.J.
WILLIAM C. MIMS, JUSTICE.
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
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
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.
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.
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.
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
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."
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.
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.
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.
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.
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
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
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'
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
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."
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
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.
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."
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.
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.
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.
Petition for Actual Innocence
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.
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.
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 ...