 (Photo: NCCAI)
A man wearing a dark ski mask robbed a Fuddruckers on December 31, 1998, an Applebee’s on January 5, 1999, and a Macaroni Grill on January 9, 1999. Police believed the robberies were committed by one person, whom they dubbed the “Freezer Bandit,” because he robbed the restaurants near closing time and forced employees and any stragglers into walk-in freezers.
During the investigation of the Macaroni Grill robbery, police recovered a ski mask near the crime scene. In addition, James Garner, one of the victims of the Applebee’s robbery, said he had seen the robber without his mask prior to the robbery. Garner spoke with investigators from the Durham Police Department on the night of the robbery but did not give a description.
On February 4, 1999, a confidential informant told police that 21-year-old Abdul Rasheed was in possession of cash taken from the Fuddruckers. A day later, Garner looked through a photo array that included Rasheed and said that Rasheed was the man Garner saw without a mask prior to the robbery.
Rasheed was arrested on February 20, 1999, and charged with three counts of armed robbery and 18 counts of second-degree kidnapping.
Rasheed’s trial in Durham County Superior Court began on October 25, 1999. The ski mask was entered into evidence, but it was never tested for DNA. At trial, Garner identified Rasheed as the Applebee’s robber. He testified that on the night of the robbery, he gave police a description of the robber as a “young black guy, kind of medium build, six to six two … 150 to 160 pounds” with a “little goatee and a little thin mustache.” But on cross-examination, Garner acknowledged that he had not provided that description to police at that time. In fact, in his first written statement, made on January 21, 1999, Garner had described the robber only as a “young black guy.”
Rasheed’s former girlfriend, Amy Messer, testified that on the night of the Fuddruckers robbery, Rasheed came to her apartment with several thousand dollars in cash along with a coupon from the restaurant. She also identified the ski mask as belonging to Rasheed and said that her cousin David had given it to him. On cross-examination, Messer said she had broken up with Rasheed in early January because he was cheating on her. She also testified that a detective told her of the consequences for not cooperating with the investigation.
“I understood that if I did not cooperate with her,” Messer testified. “I had a child and a child on the way, I would lose both of them and be in jail and not be able to see my kids, be around my family or nothing and that is most important to me, so, therefore, I did the right thing.”
Separately, an employee of Macaroni Grill testified that a cash box found at the apartment of Rasheed’s other girlfriend was from the restaurant. He said he recognized it by the plastic tie on the handle. A fingerprint technician testified that Rasheed’s prints were not found on the box.
A jury convicted Rasheed on November 10, 1999, on three counts of robbery and eighteen counts of second-degree kidnapping. He was sentenced to three consecutive terms of 125 to 159 months for each robbery. The kidnapping convictions were consolidated into three judgments, each with consecutive terms of 50 to 69 months. This gave him a combined sentence of between 43 years and nine months and 57 years in prison.
Rasheed filed a motion for post-conviction relief, which was denied on July 10, 2000. His case sat dormant for many years, until 2016, when the North Carolina Center for Actual Innocence began a review of his conviction and asked the Durham County District Attorney’s Office for a transcript of Rasheed’s trial.
In 2018, the center entered into a memorandum of understanding with the district attorney’s office to work cooperatively in a review of several Durham County convictions.
The agreement was reaffirmed in 2019 by District Attorney Satana Deberry, who was elected in the fall of 2018.
On April 17, 2019, the center sent a request to the Durham County Clerk of Court asking for an inventory of the evidence in Rasheed’s case. The clerk’s office responded a month later, but the list it provided contained discrepancies for two items: the ski mask and a cash box that the prosecution said had been taken from Macaroni Grill and found at the girlfriend’s apartment. The inventory number for the cash box was the trial number used for the ski mask, but there was no corresponding offset for the mask.
The center asked for clarification, and the clerk’s office said it would look for the mask. When the office didn’t respond for several months, the center filed a motion on November 17, 2020, to locate the evidence. That same day, the clerk’s office told the center that it did not have any of the evidence. It had been destroyed in 2018, after the clerk’s office notified the district attorney’s office and an attorney named Lisa Williams, who was not Rasheed’s attorney.
On February 24, 2021, the center filed a motion to hold a hearing on the destruction of evidence and consider any relief for Rasheed.
The motion said that the clerk’s office had improperly destroyed biological evidence and failed to give Rasheed or his attorneys proper notification of its actions. The destruction deprived Rasheed of the ability to test the mask for potentially exculpatory DNA evidence, the motion said. “Moreover, the fact that the Durham DA's Office allowed the destruction of valuable forensic evidence, while fully aware that NCCAI was investigating this case, and has since been unresponsive to NCCAI communications, raises the specter of bad faith on the part of the State,” the motion said.
Separately, Messer recanted her testimony. In an affidavit dated March 17, 2021, she said that she never saw Rasheed with a large amount of cash and had no reason to believe he was involved in the robberies. “I testified because I felt threatened by the police,” she said. “The police kept telling me that Abdul had robbed over thirty restaurants and he was going to be charged federally. The police told me if I did not cooperate I would be charged as an accessory to the crimes and I would lose my children. I was pregnant at the time. I feared I would deliver my baby while in prison. I felt I had no choice other than to lie to protect myself and my children.”
On November 3, 2021, Judge Orlando Hudson of Durham County Superior Court granted a consent motion for appropriate relief. He vacated Rasheed’s convictions for the Macaroni Grill robbery, where the ski mask had been found, and dismissed the robbery and 10 kidnapping charges. The convictions tied to the other two robberies were consolidated for judgment, with a sentence range of 10 years and five months to 13 years and three months. Rasheed had already served more than 21 years in prison, and was released on November 8, 2021.
The North Carolina Center for Actual Innocence said in a statement that Rasheed maintains his innocence in all three robberies but accepted the state’s offer so he could be released from prison.
– Ken Otterbourg
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