Fowler v. Branker

Decision Date26 March 2013
Docket NumberCIVIL CASE NO. 3:09cv51
CourtU.S. District Court — Western District of North Carolina
PartiesELRICO DARNELL FOWLER, Petitioner, v. GERALD BRANKER, Warden, Central Prison Raleigh, North Carolina, Respondent.

THIS MATTER is before the Court upon Elrico Darnell Fowler's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Also before the Court is Respondent's Motion for Summary Judgment. (ECF No. 14.) For the reasons that follow, Fowler's Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED AND DISMISSED, and Respondent's Motion for Summary Judgment (ECF No. 14) is GRANTED.


Elrico Fowler was indicted on January 29, 1996, by a Mecklenburg County, North Carolina, grand jury for the first-degree murder of Bobby Richmond. He also was indicted for assault with a deadly weapon with intent to kill inflicting serious injury and two counts of robbery with a dangerous weapon. See State v. Fowler, 548 S.E.2d 684, 689 (N.C. 2001).

The North Carolina Supreme Court summarized the State's evidence as follows:

On 31 December 1995 at approximately 10:45 p.m., Bobby Richmond(Richmond), an employee at a Howard Johnson's Motel in Charlotte, North Carolina, entered the motel lobby looking for ice. Bharat Shah (Shah) was working as the motel night clerk. About five minutes later, two black males entered the motel and approached the check-in counter. One of the men pulled out a gun and ordered Richmond to get on the ground. The other man ordered Shah to "open the register and give [him] the money." While Shah was handing over the money, the man with the gun shot both Richmond and Shah. He then ordered Shah to open the office safe. When Shah stated he did not have the combination, the man shot Shah again. Both assailants then fled the motel.
The Charlotte-Mecklenburg Police arrived at the scene at 11:04 p.m. and found Richmond and Shah lying near the counter. Richmond was unresponsive. Shah was struggling to speak with police. He told the police they had been robbed by two black males, one wearing a green jacket.
When paramedics arrived, they found a large wound in the middle of Richmond's back. Richmond had no carotid pulse. The paramedics determined Shah's life was in danger. A hospital surgeon later found two wounds in Shah's left thigh, two more wounds in Shah's back, and a wound in Shah's right forearm.
A high-velocity weapon caused Shah's thigh injury. Doctors removed two .44-caliber bullet jacket fragments from his forearm during surgery. A .44-caliber bullet jacket was also found in Richmond's left lung. Police located a .44-caliber bullet core in the motel carpet beneath Richmond's chest wound. Police also found a .44-caliber bullet jacket and a large fragment from a .44-caliber bullet jacket at the scene. Both had been fired from the same weapon used to shoot Richmond. Other pieces of metal found at the scene were also consistent with .44-caliber ammunition.
Richmond had an entrance wound in his back and an exit wound in his chest. His chest was against a hard surface when he was shot. The evidence showed Richmond was likely shot from a distance of no more than three feet.
Officers found Richmond's wallet at the scene next to his body. The wallet contained no money. The cash register drawer and a plastic change drawer next to the register also contained no money. Approximately $300.00 was stolen from the motel during the robbery.
Jimmy Guzman (Guzman), the owner of a restaurant in the motel lobby, heard gunshots around 11:00 p.m. Guzman looked through the glass door of his restaurant and saw an individual standing behind the check-in counter, looking down.

Id. at 689-90.

Prior to trial, counsel moved to suppress any attempt by the State to have Guzman identify Fowler at trial as the man he saw behind the counter when Richmond was killed. Id. at 697. The trial court held a hearing on the motion during the October 13, 1997, Criminal Session of Superior Court, Mecklenburg County. (Mot. Hr'g Tr. 77-163, Oct. 13-17, 1997.)1 After considering testimony from Guzman and Investigator Christopher Fish of the Charlotte Mecklenburg Police Department ("CMPD") and allowing Guzman to identify Fowler at the hearing, the court denied the motion. (Mot. Hr'g 77-163.)

At the same hearing, the court also considered the admissibility of Bharat Shah's statements to CMPD Sergeant Diego Anselmo and Investigator Fish. Fowler, 548 S.E.2d at 693. Shah, who had survived the shooting and moved back to India before the trial, refused to return to the United States to testify. Id. at 691. The court found that Shah was unavailable under North Carolina Rule of Evidence 804(a)(5), and that his statements to the two law enforcement officers were admissible pursuant to Rule 804(b)(5) and State v. Triplett, 340 S.E.2d 736 (N.C. 1986). Id. at 692-93.

Fowler was tried capitally at the October 27, 1997, Criminal Session of Superior Court, Mecklenburg County. Guzman testified that the man he saw behind the counter when Richmond was killed was black, in his late twenties, approximately six feet tall and wearing a green toboggan and a camouflage army jacket. Id. at 690. Guzman also described the man as having a pointed nose and hair on his face but not a full beard. Id. He identified Fowler as the man hesaw behind the counter. Id. at 697.

Sergeant Anselmo testified that he visited Shah at the hospital on January 1, 1996, at approximately 4:00 p.m. and that Shah provided an account of the robbery and shootings. Fowler, 548 S.E.2d at 690. According to the North Carolina Supreme Court's evidentiary summary, Shah told Anselmo that:

Richmond entered the lobby looking for ice around 10:45 p.m. Shah described the two men who entered the motel and robbed and shot him as black males around twenty-five or twenty-six years old, thinly built, and approximately 5'7" tall. He said both individuals wore red ski caps with black stripes. One man, wearing a gray and black flannel shirt, asked for a room. The other man, wearing a red flannel shirt, removed a revolver from his waistband and ordered Richmond onto the ground. The man with no gun ordered Shah to open the register and give him the money. As Shah complied, the man in the red shirt shot Richmond and Shah. The man with the gun ordered Shah to open the safe. When Shah stated that he did not have the combination, the man shot Shah again. Both individuals then fled.


Investigator Fish testified that he interviewed Shah on January 8, 1996, and that Shah provided additional details about the robbery and shootings. Id. The North Carolina Supreme Court summarized Shah's statement to Investigator Fish as follows:

Shah stated he gave one of the men approximately $300.00 out of the register. The man to whom he handed the money was a black male with small eyes and a goatee, and was approximately the same height as Shah, about 5'4". This man was wearing a black checked flannel shirt and dark toboggan. Shah stated that the man at the end of the counter with the gun was also black and looked similar to his accomplice although he was a little taller. This man had unshaven hair on his face but not a full beard. The man was wearing a red checked flannel shirt and dark toboggan. Shah thought the gun was black and about six inches long. The man shot Richmond first and then shot Shah in the leg. Investigator Fish showed photographs to Shah at the interview, and one of the photographs depicted defendant with a full beard. Shah said during the interview that he did not get a good look at the shooter because he was primarily focused on the man taking the money. Shah said he probably could not recognize the suspects.

Id. at 690-91.

Jermale Jones testified that around Thanksgiving, 1995, Fowler told him about a potential plot to rob a Howard Johnson's Motel. (Tr. 392-94.) Jones also testified that while they were incarcerated together at the Mecklenburg County Jail in 1996, Fowler told him that he went to the Howard Johnson's with the intention of robbing the place, but when the people working at the motel made Fowler ask twice for the money, he shot them. (Tr. 395-96.) Jones also testified that Fowler told him that a woman was coming in as he was leaving; he told her there was no vacancy and started laughing. (Tr. 396.) Fowler said the gun he used was "a big old .44." (Tr. 397.)

On cross-examination, Jones acknowledged that after being housed with Fowler at the Mecklenburg County Jail, Jones was moved closer to Cullen Marshall, who told Jones that he was locked up for the same "thing" as Fowler. (Tr. 406.) Jones admitted that he spent more time talking with Marshall than he had with Fowler. (Tr. 406.) Jones also acknowledged that he contacted police seeking to exchange information about the Howard Johnson's murder for help with a pending armed robbery charge. (Tr. 397.)

Edward Adams testified that he saw Fowler around 8:00 p.m. at a party on December 31, 1995, that Fowler left the party between 9:00 and 10:00 p.m. with two other men, and that before he left, Fowler stated that he needed some money to get into the Sugar Shack nightclub. (Tr. 607-08.) Adams testified further that Fowler and one of the men returned between midnight and 1:00 a.m., and that Fowler asked if anyone wanted to go to the Sugar Shack. (Tr. 608-09.) Subsequently, Fowler and some others left the apartment. (Tr. 609.)

Adams also testified that the following night, January 1, 1996, he saw Fowler again at thesame apartment and that Fowler, working through intermediaries, sold him a .44 revolver. (Tr. 638-44.) Adams stated that he, in turn, gave the gun to "[a] guy by the name of Keyon" to "hold." (Tr. 650.) Adams testified that he was present when Keyon destroyed the gun the next day by taking it apart and throwing away the pieces. (Tr. 650-52.)

Finally, Adams testified that he and Fowler were incarcerated together at the Mecklenburg County Jail in April 1996. (Tr. 654.) According to Adams,...

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