in the Court of Appeals 9 August 2017.
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.
F. Herzog, for defendant-appellant.
HUNTER, JR., ROBERT N., JUDGE.
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.
Factual and Procedural Background
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.
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
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.
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
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
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
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.
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.
State then called James Dwayne Dorman. 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 covered Billy's
midsection with a towel.
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.
State called Billy's youngest son, Robert Dale
Strickland. Dale lived with his father for "all
[his] life[.]" Dale and Defendant were "friends,
" and grew up in the same neighborhood.
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.
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.
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."
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.
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.
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
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.
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.
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.
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.
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.
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
. . ...