Dennis v. Commonwealth

71 Va.App. 626

838 S.E.2d 576 (Mem)

Nathaniel DENNIS, Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 0774-17-1

Court of Appeals of Virginia.

March 10, 2020

Andrew George (Noah Mink ; Elisa Beneze ; Shawn Armbrust; Baker Botts L.L.P.; Mid-Atlantic Innocence Project, on briefs), for petitioner.

Alphonso Simon, Jr., Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for respondent.

Before Chief Judge Decker, Judges Humphreys and O’Brien

Nathaniel Dennis ("Dennis") petitions this Court for a Writ of Actual Innocence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. Dennis was convicted in the Circuit Court of the City of Newport News ("circuit court") on May 20, 1998, of aggravated malicious wounding, attempted murder, and using a firearm in the commission of a felony.

I. BACKGROUND

On the night of October 8, 1997, Lynwood Harrison ("Harrison"), a supervisor at the Daily Press newspaper, was working alone in his office at the Daily Press facility in Newport News, Virginia. This building was kept locked at night, except for a side door near Harrison’s office, which he unlocked later that night for contractors who arrived in order to update their computers before picking up newspapers for delivery.

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. Dennis parted company with the other members of the cleaning crew immediately thereafter.

A few minutes before 12:30 a.m., Harrison unlocked the side door to allow the 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 thought he might recognize the person but was unsure. He testified that as he "started to say something," the intruder advanced toward him holding a metal pipe in the air. Harrison 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 was he 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 toward 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. The intruder retrieved a key from his own 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 Harrison’s office and returned, then grabbed Harrison off the floor and put him against a counter while pointing the gun at him.

Contractor Jerry Oxenburg arrived around 12:45 a.m. and noticed that the lights were out in the building, which was unusual. When Oxenburg stuck his head in the unlocked side door to ask "where somebody was," he noticed a male figure "ducking out of sight." Harrison heard Oxenburg call, "Is anyone here? Is anyone here?" Harrison did not respond because the intruder had the gun pointed at his face. As soon as Oxenburg left, the intruder shot Harrison in the face three times from a distance of about a foot. 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. Meanwhile, Oxenburg had gone to his car to retrieve his own gun because he "knew something wasn’t right." Oxenburg returned to the side entrance of the building where he saw a tall figure with a gun pointed at him. Oxenburg retreated toward the front of the building and found Harrison crawling on the ground. Oxenburg called the police.

When police arrived, they found that Harrison’s office had been "turned upside down." Harrison told police that he had approximately $393 in his office, which was never found, and a bag of coins that contained approximately $1,200. The bag of coins was recovered from behind the door of Harrison’s office by an evidence technician while processing the scene.

Harrison’s initial description of his attacker was a tall male, approximately 6’2", dark skin, shaven, wearing dark clothes, dark pants, a wide belt, and a knit cap. Although Harrison did not know his attacker, he told police that he could "re-identify" him and help develop a composite drawing. A police detective saw Dennis at the Daily Press building and noted that Dennis matched the description given by Harrison of his attacker. Harrison later picked Dennis’s picture from a six-picture photo array, indicating that he had "no doubt" that the picture he selected depicted "the person that attacked [him] that night." Harrison also positively identified Dennis at trial as his attacker.

Dennis testified in his own defense and denied robbing or assaulting Harrison. A jury convicted Dennis on all charges.

On May 18, 2017, Dennis filed a petition for a writ of actual innocence based upon non-biological evidence. As part of his petition, Dennis provided this Court with six affidavits in support of his petition, to demonstrate that another person committed these offenses. This Court ordered the Attorney General to respond to the petition, and by order dated October 31, 2017, this Court found that Dennis was not entitled to relief and dismissed the petition.

On February 21, 2019, the Supreme Court of Virginia reversed and remanded the judgment of this Court, finding that it was an abuse of discretion to dismiss the petition without ordering the circuit court to conduct an evidentiary hearing for further development of the facts. Pursuant to the directive of the Supreme Court of Virginia, on June 6, 2019, this Court remanded the case to the circuit court in order to take the testimony of five witnesses and make relevant factual findings regarding their testimony.

On June 6, 2019, this Court directed that the circuit court take the testimony of five witnesses, who had provided affidavits to this Court as a part of the original petition, to determine whether another person confessed to shooting Harrison at the Daily Press. Specifically, we directed the circuit court to provide this Court with a transcript of the testimony and factual findings on whether Abdul Al-Musawwir ("Al-Musawwir") confessed to (1) Koneta Walker, (2) Andre Wiggins, (3) George Holley, (4) Andre Terry, and (5) Donald Poindexter that he assaulted and shot Harrison at the Daily Press on October 9, 1997.¹ The circuit court discovered that Terry was deceased and therefore could not take his testimony. This Court also directed the circuit court to provide us with its findings regarding each person’s "apparent sincerity, conscientiousness, intelligence, and demeanor" as relevant to assessing the truthfulness of each witness’s testimony.

A. Testimony of Koneta Walker

On August 28, 2019, Walker testified that she used to date Al-Musawwir but ended the relationship around the spring of 1997 when she "found out the type of person that he was." She dated Al-Musawwir for a year or two sometime in the mid to late 1990s, around 1997. Walker testified that at that time, Al-Musawwir worked at the newspaper company, the Daily Press. Walker was not sure what type of work Al-Musawwir did at the Daily Press, but she remembered that Al-Musawwir would work late at night. Walker often used Al-Musawwir’s yellow Oldsmobile, and she would take him to work and pick him up from work. Walker testified that she knew of a robbery that happened at the Daily Press while Al-Musawwir worked there. Walker also testified that she "know[s]" Al-Musawwir was involved since he called her to pick him up one night and, although she was unable to remember the date, that she assumes it was the night of the Harrison’s assault based upon hearsay from others.

Walker testified that late one night, Al-Musawwir called Walker saying, "come as fast as you can." Walker asked what was wrong, but all Al-Musawwir said was, "just come on and pick me up," so Walker went to pick him up. Al-Musawwir called Walker a little bit earlier than the time he would normally get off work. When Walker arrived, Al-Musawwir ran to the car. Al-Musawwir looked "disheveled" like "something was wrong." His clothes had "blood spatters," and he had "a bag of coins, that he threw in the car." The coins were in a cloth bag, the size of a Crown Royal bag. Walker did not see any weapons. Al-Musawwir was also sweating. Upon seeing him, Walker asked Al-Musawwir what was wrong, and he responded that he "had to fuck someone up." Al-Musawwir asked Walker to get out of the car so that he could drive and did so.

Al-Musawwir drove very fast. Walker knew something happened based on Al-Musawwir’s behavior and how much he wanted to get away from the Daily Press. She found out later what had happened based on "people talking about" how Al-Musawwir "had shot and killed someone and said that he had beat another man," but she never heard about the Daily Press attack in the news. Al-Musawwir dropped off Walker at their home and left shortly afterwards.

Although Walker could not remember the date or month of the incident, she believed...