The 48-year-old Holly Springs man was found guilty in seven felony cases and several misdemeanor cases last month. His sentence amounts to life in prison.
byLena Geller
After spending three years in limbo, Henderson Atwater now faces a hard fate.
The Wake County man was arrested in 2021 on charges tied to a series of nonfatal airgun shootings. Last year, Atwater underwent a trial that ended in a mistrial when the jury hung; he was found guilty in seven felony cases and several misdemeanor cases two weeks ago on the final day of his retrial.
Atwater has since been sentenced to a minimum of nearly 50 years and maximum of more than 70 years in prison. The sentence that Superior Court Judge Keith Gregory handed down on July 31 equates to a lifetime behind bars for Atwater, who is 48 years old.
Six of the seven felony charges Atwater was convicted of relate to discharging a barreled weapon into an occupied vehicle. His seventh felony charge is assault with a deadly weapon. The misdemeanors he was convicted of are related to property damage.
Jurors found Atwater not guilty in four felony cases heard at trial, including in the sole case that involved a serious injury (a college student was shot in the face with a BB gun while driving home from a shift at Home Depot). Injuries were largely absent from the shootings Atwater was convicted of, save for a few instances in which victims, including children, were scratched by shattered car windows.
As the INDY previously reported, the case the state brought against Atwater was vast, tangled, and marked by a lack of evidence as well as repeated instances in which law enforcement displayed incompetence. The Raleigh-Apex NAACP has repeatedly called on federal authorities to conduct an investigation into Atwater’s prosecution, alleging that the case against Atwater, who is Black, is flimsy and reeks of misconduct.
One of Atwater’s defense attorneys, Chad Axford, told the INDY on Tuesday that while the length of Atwater’s sentence stems in part from his criminal record—which includes a dozen traffic violations, several weapon possession charges, and some missed court appearances—it’s still a “historic injustice” given the lack of evidence tying Atwater to most of the shootings and given that no one was killed.
“A week before [Atwater’s] trial started, I got an offer from [the DA’s office] on a different case, a murder case, to plead my [client] to second degree murder where the minimum sentence would be 18 years. And he shot somebody in the face with a real gun,” Axford said. “And then tried to hide the body in a creek. The DA is offering him less than half the minimum amount of time that Henderson got.”
Axford filed an appeal on Atwater’s behalf on August 5.
The basis of the appeal largely rests on the argument that the crimes Atwater was convicted of were not similar enough to be joined for a single trial, Axford says. Because the shootings were committed over the course of almost a year; involved both BB and pellet guns of varying calibers; occurred in several different sites in Wake County; and garnered different vehicle and suspect descriptions from victims; among other distinctions, the cases should have been tried individually, Axford says.
“We’re keeping our fingers crossed that the Court of Appeals agrees with us on an issue that could set the judgment aside and send it back for retrying,” Axford says.
Essentially, while several of the cases brought against Atwater are hard to refute—one case involved an eyewitness who knew and identified Atwater as having shot at him while video footage showing Atwater’s license plate supported another—the hope is that an appellate court will rule that the other cases should not have been lumped together into one trial because they weren’t similar enough and lacked evidence showing any direct ties to Atwater.
Axford and his co-counsel William Pruden filed pretrial motions at both the initial trial and the retrial that aimed to separate Atwater’s offenses, but both Judge Gregory and Judge Paul Ridgeway, who presided over the first trial, did not accept the motions.
Axford and Pruden didn’t present their own evidence or witnesses at either trial because forfeiting their right to make a case enabled the defense to deliver their closing statement after the prosecution, Pruden says.
“It was really important to have the last word in a case like this, with such little evidence,” Pruden told the INDY in a phone call Monday evening.
For the appeal, Atwater will either hire an appellate defender or be assigned one, Pruden says.
An additional 30-plus shooting-related charges against Atwater weren’t packaged as part of the recent trial and remain pending, but Wake County DA Lorrin Freeman recently told WRAL that her office is likely to dismiss those charges given the length of Atwater’s sentence.
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