Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Messer

Court of Appeals of North Carolina

October 3, 2017


          Heard in the Court of Appeals 9 August 2017.

         Appeal by Defendant from judgment entered 6 November 2015 and 10 November 2015 by Judge Thomas H. Lock in Johnston County No. 13 CRS 056913, 13 CRS 056914 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Peter A. Regulski, for the State.

          Paul F. Herzog, for defendant-appellant.

          HUNTER, JR., ROBERT N., JUDGE.

         Anthony Edward Messer ("Defendant") appeals a jury verdict convicting him of first degree murder and robbery with a dangerous weapon. On appeal, Defendant argues the following: (1) the trial court erred by denying his motion to dismiss because the State failed to establish the corpus delicti of the charge of robbery with a dangerous weapon; and (2) the trial court erred by denying his motions to suppress his in-custody interview by law enforcement officers, his clothing, and the results of his DNA testing. We find no error.

         I. Factual and Procedural Background

         On 16 December 2013, the Johnston County Sheriff's Department arrested Defendant on warrants for first degree murder and robbery with a dangerous weapon. Upon taking Defendant into custody and transporting him to the Johnston County Sheriff's Office, Detective Rodney Byrd interviewed Defendant for an official statement. During the interview, Defendant admitted the following:

I told him to take me to Benson and uh, before we got to Benson, I told him I needed to get out and pee and when I got out, I acted like I peed, pulled a gun out of my pants, opened my door back up and shot him in the head.

         In the same statement, Defendant claimed he took the gun used to kill Billy from Billy's home. Defendant then stole $104.00 from Billy's wallet, dragged Billy out of the car, and left. Defendant said he then went to "the crackman's house."

         After the interview, Detectives seized the shirt Defendant wore during his arrest, because it "appeared to have mud and blood on it." Detectives then placed him into custody at the Johnston County Detention Center. On 22 January 2014, Detective Byrd obtained a warrant to seize a DNA sample from Defendant with a saliva sample.

         On 15 May 2015, Defendant moved to suppress the results of his DNA test. He argued the probable cause affidavit in support of the search warrant "[wa]s insufficient." Defendant also moved to suppress the statement he made to Detective Byrd on the night of his arrest because he "was too impaired after a day of drug use and drinking to understand his Miranda rights and to knowingly and intelligently waive [the] same."

         On 12 October 2015, the trial court held a suppression hearing for Defendant's motion to suppress his in-custody statement. At that time, defense counsel announced he did not plan to present evidence on his Miranda rights argument. Defendant shifted his argument and claimed detectives arrested him without probable cause, and, therefore, his statement, DNA test, and clothing should be suppressed as fruits of the poisonous tree. The court allowed the amendment, and the State did not object to the lack of notice. The court denied all the motions to suppress.[1]

         The Johnston County Superior Court called Defendant's case for trial on 26 October 2015. The State called eighteen witnesses in total, and the evidence tended to show the following.

         The State first called Keith Burakowski, a Deputy Sheriff with the Johnston County Sheriff's Office. In response to a call on 16 December 2013, emergency communications dispatched Deputy Burakowski to the intersection of Hannah Creek Road and Strickland's Crossroads Road. Deputy Burakowski arrived at the scene at 11:49 a.m. He saw Billy lying on the side of the road, with a towel over his midsection. About eight to ten feet from Billy, he noticed a "black in color revolver with a brown handle[, ]" which he later identified as a ".38 revolver." He immediately called for EMS because Billy "was . . . gasping for breath[.]" After contacting EMS, Deputy Burakowski "secured the gun[, ]" by removing one discharged and five unfired rounds of ammunition from the barrel. He placed the gun and ammunition in the trunk of his patrol car. Deputy Burakowski then "secured the area" and called the dispatch center and asked them to "run" the gun's serial number.

         The State next called Ricky Messer, who is not related to Defendant. Around 11:30 a.m. on 16 December 2013, Ricky drove home from a nearby rock quarry on Strickland's Crossroads Road. As he passed the intersection at Hannah Creek Road, he noticed Billy's body lying on the side of the road, with his pants around his knees. Ricky knew Billy "virtually all [his] life[.]" However, Ricky did not immediately recognize Billy, because he was lying on his side and blood covered his face and hair. Ricky also saw a denture plate and pair of glasses lying nearby.

         The State then called James Dwayne Dorman.[2] On 16 December 2013 at around 11:30 a.m., James and his wife, Kim, returned home from shopping at Food Lion in Benson. James and Kim came upon Billy at the same time as Ricky. James's description of the appearance and location of Billy's body on the side of Hannah Creek Road largely matched Ricky's account. He only added that his wife[3] covered Billy's midsection with a towel.

         Christopher Shambaugh next testified for the State. He works for the Johnston County EMS and responded to Deputy Burakowski's call. He arrived at the scene at 11:50 a.m. He did not detect a pulse or heart beat anywhere on Billy's body and declared Billy dead around 11:57 a.m.

         The State called Billy's youngest son, Robert Dale Strickland.[4] Dale lived with his father for "all [his] life[.]" Dale and Defendant were "friends, " and grew up in the same neighborhood.

         On the evening of 15 December 2013, Dale visited his cousin. At approximately 9:00 p.m., Defendant called Dale and asked to stay the night at his home. Defendant explained he and his father argued earlier in the evening. Dale told Defendant he was not home, but Defendant could go to his home because Billy was there. Around 9:30 p.m., Billy and Defendant picked Dale up, and they all returned to Billy's home.

         Later in the evening, Defendant repeatedly asked Dale if he knew where they could find drugs. Defendant gave him some "empty bags and straws and stuff, paraphernalia, whatnot . . . . " Defendant told Dale he knew "two elder[ly] people that . . . he could get some money from . . ., but he would have to kill them to get it[, ]" by "put[ting] two bullets in their head[s]." Hoping to move away from this subject, Dale discussed guns because they are his "go-to" hobby. Defendant persisted, and Dale eventually told Defendant he would try to get some drugs in the morning. The two went to sleep between 4:00 a.m. and 5:00 a.m. in the morning.

         On the morning of 16 December 2013, Dale awoke around 11:00 a.m. and found the home empty. Dale looked behind the recliner in the living room, where Billy normally kept one of his guns, a black, .38 special revolver with a wooden handle. However, Dale could not find it. Dale noticed Billy's medicine bottles appeared "gone through and turned over . . . just like somebody searching for something." Dale also noticed an empty spot in Billy's used car lot adjacent to the house, where a gold Chevrolet Malibu usually sat. Dale called Billy's cellphone several times, but Billy did not answer. Dale never called the police because "it was Monday and on Mondays my dad goes to the car sale every Monday, and you know, I assumed, you know, I didn't assume the worst."

         Between 12:30 p.m. and 1:30 p.m., officers came to Billy's home. When Dale saw them turn into his driveway, he thought they wanted to arrest him because he "was involved in drugs[.]" He ran into the woods and called his boss, James, and asked for a ride. James picked Dale up and took Dale to his cousin's home. At some point during this interaction, Dale asked James to create a false alibi for Dale if law enforcement contacted him. During Dale's visit at his cousin's home, his uncle stopped by and told Dale Billy died that morning.

         Dale returned home around 6:00 p.m., where Detective Byrd waited for him. Though he first lied to Detective Byrd regarding his whereabouts that day, he eventually conveyed to Detective Byrd the above testimony.

         The State then called Detective Byrd. He works as a detective for the Johnston County Sheriff's Office and investigated Defendant's case. On 16 December 2013, he received instructions to go to the intersection of Hannah Creek Road and Strickland's Crossroads Road. He arrived at 12:48 p.m. His description of the crime scene and Billy's appearance matches that of Ricky Messer and both the Dormans. Detective Byrd noticed a wallet in Billy's back pocket, which contained Billy's I.D. and a few cards, but no cash.

         That afternoon, Detective Byrd went to Billy's home with Detectives Don Pate and Kevin Massengill. They found the door ajar and did not find anyone in the home or on the property. Finding no one, Detective Byrd went to give a "death notification, " to Chris Strickland and other family members. Around 6:15 p.m., Detective Byrd interviewed Dale when Dale returned home from his cousin's home.

         When asked why he and other detectives "went looking for Andy Messer, " Detective Byrd replied:

Based on the phone call from Mr. Messer to Mr. Danny Stanley, in [the] interview with Mr. Strickland, the fact of the defendant Mr. Andy Messer stayed the night before, and when Mr. Strickland woke up, both Andy Messer and his father were missing, along with [sic] .38 Special, I began looking a little harder for the defendant Mr. Andy Messer.

         After interviewing Dale, Detective Byrd went to Defendant's home, hoping to locate him. While there, detectives received a phone call and drove to I-95 in Cumberland County near mile marker sixty-one. There, Detective Byrd saw another detective place Defendant in handcuffs. Detective Snipes transported Defendant to the Johnston County Sheriff's Office.

         Back at the Johnston County Sheriff's Office, Detective Byrd interviewed Defendant around 8:10 p.m. At this point in the trial, the State moved to introduce a video recording of Defendant's in-custody interview into evidence. Defendant objected, preserving his motion to suppress for appeal. The trial court overruled Defendant's objection and the State played the recording for the jury.

         In the recording, prior to questioning Defendant, Detective Byrd gave Defendant Miranda warnings, which Defendant waived. Defendant confessed to killing Billy and stealing $104.00 from Billy. At the conclusion of the interview, Detective Byrd arrested Defendant.

         The State then called Dr. Lauren Scott. As the Associate Chief Medical Examiner, she performed the autopsy on Billy. She determined Billy died from "[a] gunshot wound to the head." She found two gunshot wounds, an entry wound on his right temple and an exit wound on his left temple. Billy's head also showed signs of "bleeding in between the brain and the membranes that surrounds the brain . . ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.