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State will not seek death penalty in shovel-beating slaying

By Staff | May 1, 2010

The state will no longer seek the death penalty against a Cape Coral man accused of killing a man with a shovel after sexually battering him in 2007.
Richard Carl Elkins, 21, of 2007 S.E. Eighth Ave., is charged with one count of first-degree murder and one count of sexual battery with a deadly weapon or great force in the death of Obed Flores, 22. Assistant State Attorney Bob Lee is prosecuting the case, according to court documents.
Fort Myers defense attorney David A. Brener, who was appointed to handle the penalty phase of Elkins’ case, said the state filed the motion seeking the death penalty against Elkins in 2007. David M. Peckins is representing Elkins for the non-death penalty phase as first chair counsel.
“The state had sought the death penalty,” Brener said.
On Thursday, the defense received a formal notice of intention not to seek the death penalty from the state.
The State Attorney’s Office could not be reached for comment Friday.
“We were able to persuade the state to take another look at it and waive the death,” Brener said. “They decided to take another look at it. They re-evaluated the case in light of, I’m sure, a number of factors.”
According to Brener, some factors that could have played a part was additional information that may have come out while each side was building its case, the age of Elkins at the time of the alleged offense and the fact that he was under the influence of drugs and alcohol and he had no prior criminal record, contact with the victim’s family and mitigation.
“It’s a tremendous feeling of relief and joy when you can be instrumental in helping to spare the life of another human being,” he said Friday, adding that he has spoken to Elkins’ mother, who is overcome with gratitude.
Brener also expressed gratitude toward the prosecutors for being willing to take another look at the case and reconsider seeking the death penalty.
According to a report from the Lee County Sheriff’s Office, Elkins, Flores and a third man went behind a bar in the 3300 block of Bonita Beach Road in Bonita Springs to smoke marijuana on Feb. 28. Flores then grabbed Elkins by the genitals, the third man and witness later told police.
Elkins responded by beating and punching Flores until he was unconscious. He then removed Flores pants and sexually battered him, the report states. The witness told police that he took Flores’ wallet and cell phone, and then he and Elkins returned to the bar. They stayed for a short while and paid their tab.
As they left the bar, Elkins stated that he intended to kill Flores, according to the report. The witness asked Elkins to think about what he was doing as they went behind the bar to where Flores still lay motionless on the ground. The witness walked away as Elkins reportedly used a shovel to repeatedly strike Flores.
Elkins and the witness reportedly disposed of the shovel, phone and wallet.
The report states that autopsy results indicate that Flores was alive when Elkins beat him with the shovel.
Elkins has a pretrial conference Sept. 28, according to court documents. He is scheduled to go to trial Oct. 25 before 20th Judicial Circuit Judge Margaret O. Steinbeck at the Lee County Justice Center in downtown Fort Myers.
Florida law does not allow for a defendant to have more than one appointed attorney except in during a death penalty case, so Brener will be discharged.