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State v. Stroud

Court of Appeals of North Carolina

March 7, 2017

STATE OF NORTH CAROLINA
v.
HERBERT LEE STROUD

          Heard in the Court of Appeals 22 August 2016.

         Appeal by Defendant from judgments entered 1 May 2015 by Judge W. Allen Cobb Jr. in Superior Court, Duplin County No. 12 CRS 051891.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Sandra Wallace-Smith, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for Defendant.

          McGEE, CHIEF JUDGE.

         Herbert Lee Stroud ("Defendant") appeals from judgments entered after a jury found him guilty of first-degree felony murder, larceny, robbery with a dangerous weapon, and possession of stolen goods.

         I. Background

         The body of Henry Lionel Bouyer, Jr. ("Bouyer") was discovered in a shallow ditch on the side of Carrolls Road in Warsaw, North Carolina, in the early morning hours of 21 August 2012. Dr. Anuradha Arcot ("Dr. Arcot"), the forensic pathologist who performed the autopsy, testified Bouyer died from three shots fired from a shotgun at close range - one to his neck, a second to his back, and a third near his groin. Dr. Arcot was unable to determine a specific time of death, and could only say that Bouyer died sometime within the twenty-four hours prior to the discovery of his body. The State presented a timeline of the events surrounding Bouyer's death.

         A few days prior to the discovery of Bouyer's body, Defendant and his stepson, Jeremy Stephens ("Stephens"), visited the home of Travis Jones ("Jones"), a mechanic. Defendant and Stephens asked Jones what alterations he could make to the appearance of a motorcycle. Jones replied that if he was provided the necessary parts and was paid for his labor, he could make any modifications they desired. Defendant and Stephens did not have a motorcycle with them on that day.

         Around 6:00 p.m. on 20 August 2012, Bouyer drove his motorcycle to a BP station in Warsaw to buy a lottery ticket. Bouyer's motorcycle, a Suzuki GSXR 1000, was a distinctive black and yellow color with a Joker emblem painted on its side. From the BP station, Bouyer drove to a barbershop for a haircut, arriving around 6:45 p.m. While receiving his haircut, Bouyer made and received between five and ten phone calls, annoying his barber and friend, Martin Batts ("Batts"). Bouyer paid Batts with cash from his wallet, and left on his motorcycle between 7:15 p.m. and 7:30 p.m.

         Bouyer was next seen at the Small Towns Convenience Mart ("Small Towns") in nearby Magnolia, North Carolina. Ivey Chestnutt ("Chestnutt"), a clerk at Small Towns, saw Bouyer enter the store around 7:30 p.m. Chestnutt and Bouyer began a conversation, during which Bouyer received a number of phone calls. After finishing one of his phone calls, Bouyer told Chestnutt he had "a guy that wants to buy my motorcycle." Bouyer explained that he "ran it out to him for a couple days, and right now he wants to keep bugging me, wanting [me] to rent the motorcycle out to him or wanting to buy it." Bouyer added that if the unnamed person would pay him $5, 000.00, he would sell that person the motorcycle. Bouyer received one more phone call, said goodbye to Chestnutt, and left.

         Bouyer rode his motorcycle back to the BP station in Warsaw to meet with Defendant and Stephens. Dedra McGowan ("McGowan"), a clerk at the BP station, saw Bouyer enter the BP station first, followed by the Defendant shortly thereafter. After speaking inside the BP station for only a moment, Bouyer and Defendant left the station and continued talking in the parking lot with Bouyer sitting on his motorcycle, and Defendant and Stephens sitting in Defendant's Jeep Cherokee ("the Jeep"). McGowan testified that the three "looked comfortable, " and "looked like they knew each other already." Surveillance footage from the BP station confirmed McGowan's testimony, showing Bouyer and Defendant inside the BP station for a short period of time, and also Bouyer, Defendant, and Stephens talking in the parking lot for about four minutes. Following this conversation, Defendant and Stephens left the parking lot at 8:59 p.m. in Defendant's Jeep, and Bouyer headed in the same direction on his motorcycle seventeen seconds later. No testimony presented at trial tended to show Bouyer's whereabouts after 8:59 p.m. on 20 August 2012.

         That same night, Defendant visited the home of his friend, Ellie Graham ("Graham"), in Rose Hill, North Carolina. Graham initially testified that "it was a little after 9:00 [p.m.] when [Defendant] came to my house[, ]" but later testified that Defendant arrived "somewhere between 9:00 [p.m.] and 11:00 [p.m.]" Graham testified that during a thirty minute visit, Defendant "wasn't himself that day" because he was crying, and was generally distraught about marital problems he was having with his wife. Graham testified that other than Defendant having red eyes associated with crying, he did not notice anything different about Defendant's physical appearance. Graham testified that Defendant was alone, and that Defendant stated he needed to borrow some money so he could pick Stephens up from work that night.

         The following day, Defendant and Stephens returned to Jones' house around 4:00 p.m. with a motorcycle, later identified as Bouyer's. Defendant and Stephens told Jones they would like the motorcycle to be stretched out and lowered, and would like a mural to be painted on its side. Jones told them that he could not start work on the motorcycle until they either purchased the required parts or paid him so he could order the parts himself. Defendant and Stephens did not have any money with them at the time, so the motorcycle was parked in a field adjacent to Jones' house.

         A few days later, Defendant and Stephens returned to Jones' house to ask whether he could sell the bike or otherwise "get rid of it for them." Jones responded that he would be unable to find a buyer without the proper paperwork, but if he was provided with the title to the motorcycle, he would attempt to find a buyer. During that visit, Jones asked Defendant and Stephens whether they "finally [got their] money problem straightened out." Jones testified that Defendant responded "that any problem that they had, any money - any problem that they had had been taken care of, and then [Defendant] looked at [Stephens], and [Stephens] smiled, and that was the end of that conversation."

         A. Law Enforcement Investigation

         Bouyer's body was discovered the morning of 21 August 2012 around 7:30 a.m. Among the evidence collected at the scene by law enforcement was: a motorcycle helmet, later identified as Bouyer's; a broken cell phone; a pear; and a spent 9-millimeter shell casing, found one hundred yards from the body. Deputy George Garner ("Deputy Garner"), of the Duplin County Sheriff's Office, was asked to assist in identifying the phone number for the phone that was found at the scene. After identifying the phone number, a subpoena was issued for the subscriber information on the number, which in turn allowed Deputy Garner to determine that the phone belonged to Bouyer. The Duplin County Sheriff's Office also requested and received cell phone records of Defendant and Stephens, among others.

         Records from the cell phones of Defendant, Stephens, and Bouyer provided information regarding phone calls and text messages between Stephens and Bouyer, and the relative locations of the three phones on the night of 20 August 2012. First, the call detail records from the phones of Bouyer, Stephens, and Defendant confirmed that many of the phone calls Bouyer placed and received on 20 August 2012 were to and from the cell phone number identified as belonging to Stephens. That day, Bouyer called Stephens four times, and Stephens called Bouyer eleven times. The call detail records show that Defendant's phone was never used to call, and did not receive a call from, Bouyer's phone on 20 August 2012.

         Next, the text detail records show multiple text messages between Stephens and Bouyer regarding, presumably, the purchase of Bouyer's motorcycle. Stephens texted Bouyer at 7:29 p.m. on 20 August 2012 that they would "[m]eet . . . at Small Towns, " and two minutes later, texted Bouyer that "[w]e are buying it today, ill [sic] let u [sic] use my card [sic] to get back tour [sic] crib." The call detail records also show that Defendant's phone was never used to send a message to, nor did it ever receive a message from, Bouyer's phone.

         Finally, the call detail records, through the use of historical cell site analysis, also provided some evidence of the relative location of the phones of Bouyer, Defendant, and Stephens on the night of 20 August 2012. At trial, Agent William Williams ("Agent Williams"), of the Federal Bureau of Investigation, testified that the last two phone calls made to Bouyer's phone that resulted in location data being collected were made at 8:20 p.m. and 8:36 p.m. on 20 August 2012. When those calls were received, Bouyer's cell phone utilized a specific cell tower and sector: tower 4c4, sector 2. Agent Williams testified that both the BP station and Bouyer's residence were within the "footprint" of tower 4c4, sector 2, meaning calls made from those locations would likely be routed through that tower and sector. Regarding Stephens' phone, Agent Williams testified that at 8:36 p.m. and 8:39 p.m. on 20 August 2012, Stephens' phone utilized that same tower and sector, which indicated that his phone and Bouyer's phone "would have been within the footprint of this particular tower, " meaning that they "were relatively close together." Stephens' phone then utilized the same tower, but a different sector, sector 3, five times on 20 August 2012, at 9:15 p.m., 9:17 p.m., 9:19 p.m., 9:20 p.m., and 9:55 p.m. According to Agent Williams, tower 4c4, sector 3 was significant because it was the sector in which Bouyer's body was discovered the next morning.

         Regarding Defendant's phone, Agent Williams testified that it utilized tower 4c4, sector 1 four times between 9:39 p.m. and 9:48 p.m. Three of those calls - at 9:43 p.m., 9:45 p.m., and 9:48 p.m. - were between Stephens' and Defendant's phones. Agent Williams explained that tower 4c4, sector 1, "points" to the northeast, towards Warsaw. Defendant's phone then utilized a different tower, tower 4bf, sector 1, near Rose Hill, at 11:04 p.m. Though Defendant's phone made and received a total of eighty-nine calls on 20 August 2012, it never utilized tower 4c4, sector 3 on that date.

         Lieutenant Michael Stevens ("Lt. Stevens"), an investigator with the Duplin County Sheriff's Office, retrieved the security footage from the BP station. Lt. Stevens, who was a friend of Bouyer, knew Bouyer worked as a truck driver and would often park his truck in the BP station parking lot when it was not in use. While at the BP station retrieving the surveillance footage, Lt. Stevens noticed Bouyer's truck in the parking lot. In searching the truck, the title to Bouyer's Suzuki motorcycle was located.

         After reviewing the call detail records and viewing the BP surveillance footage, law enforcement deemed Stephens a suspect and began surveillance of him on 24 August 2012. During the surveillance, officers observed Stephens leave the Subway restaurant in Rose Hill, North Carolina where he worked, in Defendant's Jeep. Following him from the Subway, officers observed Defendant and Stephens make stops at several locations, and eventually followed the pair to Jones' ...


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