State v. Fowler, 164A00.

Docket NºNo. 164A00.
Citation548 S.E.2d 684, 353 N.C. 599
Case DateJuly 20, 2001
CourtUnited States State Supreme Court of North Carolina

548 S.E.2d 684
353 N.C. 599

STATE of North Carolina
Elrico Darnell FOWLER

No. 164A00.

Supreme Court of North Carolina.

July 20, 2001.

548 S.E.2d 689
Roy A. Cooper, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State

James R. Glover, Chapel Hill, for defendant-appellant.

MARTIN, Justice.

On 29 January 1996 the state indicted defendant Elrico Darnell Fowler (defendant) for the first-degree murder of Bobby Richmond. The state also indicted defendant for assault with a deadly weapon with intent to kill inflicting serious injury and two counts of robbery with a dangerous weapon. Defendant was tried capitally at the 13 October 1997 Criminal Session of Superior Court, Mecklenburg County. The jury found defendant guilty of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule. The jury also found defendant guilty of both counts of robbery with a dangerous weapon and one count of assault with a deadly weapon with intent to kill inflicting serious injury. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction. The trial court entered judgment in accordance with that recommendation. The trial court also sentenced defendant to terms of imprisonment for his remaining convictions.

The evidence at trial is summarized 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

548 S.E.2d 690
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. Guzman said the man was black, in his late twenties, and approximately six feet tall. The man was wearing a green toboggan and a camouflage army jacket. The man had a pointed nose and hair on his face but not a full beard. Shortly after the robbery, police showed Guzman a man in a green jacket, but he was unable to say whether this was the man from the motel.

On 8 January 1996 police showed Guzman a photo array which included a 1995 photo of defendant with a full beard. Guzman said none of the men looked like the one he saw in the motel. On 11 January 1996 police showed Guzman a second photo array with a picture of another suspect. Guzman said the picture of the other suspect resembled the man he had seen at the crime scene.

On 14 January 1996 police showed Guzman another photo array produced by a computer. It included a picture taken two days earlier of defendant with a slightly unshaven face. Guzman picked out defendant's picture as the one most closely resembling the man at the motel. He was unable to state for sure, however, that defendant was the man he had seen. On 3 April 1996 police showed Guzman another photo array, without a picture of defendant. Guzman selected two photos resembling the man he had seen.

Before the pretrial hearing on 14 October 1997, the prosecutor told Guzman that at any proceeding where he was called to testify, defendant would be seated between his attorneys at the defense table. At the pretrial hearing, Guzman identified defendant as the man he had seen. Guzman said this identification was based on his memory of seeing defendant at the crime scene. At trial, Guzman again identified defendant as the man he had seen.

On 1 January 1996 at approximately 4:00 p.m., Sergeant Diego Anselmo visited Shah in the hospital. Shah provided an account of the robbery and shootings. Shah said 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.

On 8 January 1996 Investigator Christopher Fish (Investigator Fish) interviewed Shah. During this interview Shah provided additional details about the robbery. 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

548 S.E.2d 691
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

Shah was released from the hospital on 14 January 1996 and eventually moved to India. The state made repeated attempts to locate Shah. Investigator Sam L. Price (Investigator Price), an investigator with the Charlotte-Mecklenburg Police Department, spoke to Shah's brother in California as early as September 1996. Investigator Price obtained Shah's telephone number in India and spoke to Shah by phone in October 1996. Investigator Price told Shah that the state would provide him with air transportation, lodging, meals, and whatever was necessary to care for his injuries if he would return to North Carolina to testify. Investigator Price further promised that Shah would be picked up in California and provided police protection while in Charlotte. Despite the state's offer to pay for his air transportation, accommodations, and meals, as well as to provide police protection, Shah refused to return to the United States to testify at trial.

The state provided defendant with written notice of its intent to offer Shah's hearsay testimony at defendant's trial. In the state's initial notice, the state recited that Shah was living at an unknown address in India. The state later served defendant with an amended notice that included Shah's telephone number in India.

Several people testified concerning defendant's statements and actions before and after the events at the motel. Jermale Jones (Jones) said defendant told him on Thanksgiving 1995 about a potential plot to rob a Howard Johnson's Motel. Further, while incarcerated with Jones in the Mecklenburg County jail in March 1996, defendant told Jones that he entered the Howard Johnson's with a handgun to attempt a robbery and that when the people working at the motel made him ask twice for the money, defendant shot them. Defendant said the gun he used was "a big old .44."

Edward Adams (Adams) testified that he saw defendant at an apartment around 8:00 p.m. on 31 December 1995. Defendant left between 9:00 and 10:00 p.m. with two other men and returned between midnight and 1:00 a.m. Defendant stated he was going to the Sugar Shack, a local nightclub, and left with some other...

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