Antonio C Nolen v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: January 14, 2003
• Docket: 0226021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Coleman Argued at Chesapeake, Virginia

ANTONIO C. NOLEN MEMORANDUM OPINION * BY v. Record No. 0226-02-1 JUDGE JAMES W. BENTON, JR. JANUARY 14, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge

Robert F. Haley, II (Marcari, Russotto & Spencer, on brief), for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

The trial judge convicted Antonio C. Nolen of conspiracy to

commit robbery, armed robbery, and use of a firearm in the

commission of a felony. Nolen contends the trial judge erred in

ruling that the prosecutor did not commit two Brady violations and

in finding that the evidence was sufficient to sustain the

convictions. We affirm the convictions.

I.

The evidence proved Tynetta Miller gave statements to the

police on March 21, 2001 and March 27, 2001, confessing her

participation with several men in a series of robberies in the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. City of Portsmouth. In response to discovery, the prosecutor

delivered those recorded statements to Antonio Nolen's attorney

prior to trial. The prosecutor also informed Nolen's attorney of

an unrecorded pre-trial interview in which Miller indicated she

suffers from a mental condition that causes hallucinations.

At trial, Miller testified that Nolen was her son's friend

and that she has known Nolen "a long time." She testified that

Nolen was present in her apartment on February 25, 2001 when she,

Nolen, Jamall Mabry, Larry Mabry, and Donte Ward devised a robbery

scheme. They agreed that Miller would go to a local bar and lure

a male customer to an area near her apartment. When Miller and

the customer exited the car, the four men would rob the customer.

Miller testified that after they devised this plan she,

Nolen, and the other men went in Miller's car to the Tides Inn.

Miller entered the bar alone, had a few drinks, and met Eliot

Lassiter and Kenneth Barham. During her conversations with

Lassiter and Barham, Miller said she wanted to go to a friend's

house to buy marijuana. Lassiter and Barham left the bar with

Miller, and Barham drove his car at Miller's direction toward her

apartment. Miller testified that after she and Lassiter exited

the car and walked across a street near her apartment, she heard

Nolen's gun make a "clicking" sound and then heard Nolen say,

"Hold it right there, baby boy. Give it up." Miller said Nolen's

face was "covered with something," Jamall Mabry was wearing a

hooded jacket, and Ward was wearing a hat. Larry Mabry

- 2 - simultaneously was robbing Barham, who had remained in the car.

Miller testified that she ran away and later returned to her

apartment. Nolen, Ward, Jamall Mabry, and Larry Mabry were inside

her apartment when she arrived. Miller testified that the men had

divided the $100 they obtained in the robbery and that they gave

her ten or fifteen dollars. Miller also said when the men left

her apartment, Larry Mabry was carrying compact discs he had

obtained during the robbery.

On cross-examination, Miller admitted to "smoking crack that

night and drinking." Miller also acknowledged experiencing

hallucinations and having mental problems. She did not recall

either the day of the week the robbery occurred or whether it

occurred in February. She testified, however, that she "kn[e]w it

happened that night." She also testified that she participated in

a number of robberies with Larry Mabry and Jamall Mabry on

different days, but said Nolen was only involved in "this

[robbery] I'm testifying for today." When asked about the

discrepancies between her testimony and a statement she had

earlier recorded for the police, Miller said she did not remember

telling the police that she went to the "Frontier" bar or that

Nolen was driving his girlfriend's car on the night of the

robbery. Miller admitted she first falsely told the police that

Donte Scarborough, rather than Donte Ward, participated in this

robbery. Miller explained that she lied about Donte Scarborough's

involvement because she was "afraid of the guy finding out [she]

- 3 - was telling everything" and "afraid for [her] life." Miller

acknowledged that in exchange for her testimony, the Commonwealth

agreed to recommend a "20-year cap" for the sentencing of all her

charges.

Lassiter testified that on February 25, 2001, he and Barham

were at the Final Frontier bar, which is located beside Lappers

strip club. He identified Miller as the woman they met in the bar

and accompanied to an apartment to purchase marijuana. When they

arrived at an apartment complex, Lassiter exited the car with

Miller. As they approached a residence, Lassiter saw three men,

wearing dark clothes and "ski masks," running toward him.

Lassiter testified that Miller ran when the men ordered him at

gunpoint to face a wall and took his wallet and coat. After

Lassiter returned to his car where Barham waited, Lassiter

discovered that his compact discs and cellular phone had been

taken. Lassiter reported the robbery to the police that night.

A detective testified that he questioned Nolen after Miller

told the police about the robberies. During questioning, Nolen

confessed his involvement in the robbery but said he could not

"put a date" on the robbery. Nolen recalled, however, that he,

Ward and Larry Mabry took Miller to the "Frontier" bar. Later,

that evening, in response to Miller's telephone call, Nolen drove

Ward, Larry Mabry, and Jamall Mabry to the vicinity of Miller's

apartment. Nolen said "[t]hey were going to wait for [Miller] to

bring a guy back so they could rob him." Nolen said he sat in the

- 4 - car and watched Ward, Larry Mabry, and Jamall Mabry commit the

robbery. He told the officers that Ward and Jamall Mabry obscured

their faces with bandannas and returned to the car after the

robbery with a coat, a hundred-dollar bill, and a cell phone.

Although Nolen disclosed other criminal activities when he talked

to the police, he said this was the only robbery in which he

participated. Nolen specifically recalled driving Miller's car

because he was the only one of the men with a driver's license.

Nolen also recalled that his parole ended the third week in

January and that the robbery occurred four weeks after his parole

ended.

At the conclusion of the Commonwealth's case-in-chief, Nolen

re-called Miller to testify. She testified that she had been

involved in "a lot of robberies . . . committed by these guys" but

that she specifically recalled this robbery because they "got the

two guys." She also testified that the Tides Inn is connected to

the Lappers Club and that the Frontier bar is "right down the

street" from the Tides Inn.

The trial judge convicted Nolen of conspiracy to commit

robbery, robbery, and use of a firearm in the commission of the

robbery.

II.

The United States Supreme Court held in Brady v. Maryland,

373 U.S. 83 (1963), that "the suppression by the prosecution of

evidence favorable to an accused upon request violates due process

- 5 - where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."

Id. at 87. The Court has also held as follows:

[T]he duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and . . . the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id., at 682; see also Kyles v. Whitley, 514 U.S. 419, 433-434 (1995).

Strickler v. Greene, 527 U.S. 263, 280 (1999). The Court's

mandate that exculpatory evidence be provided to the accused is

based on the long standing principle that the suppression of

evidence favorable to the accused can deprive the defendant of a

fair trial. Bagley, 473 U.S. at 675.

Nolen argues that the trial judge should have granted his

motion for a mistrial because the prosecutor never disclosed

that Miller's trial testimony would be "radically different

from" her two recorded statements. The record, however, proved

that in a "Notice of Exculpatory Evidence," the prosecutor gave

Nolen a copy of Miller's March 21, 2001 statement and

specifically informed Nolen that Miller's statement may be

inconsistent with her expected testimony. In that notice, the

prosecutor also disclosed Miller's May 8, 2001 oral statements

that she experiences visual and auditory hallucinations and that

- 6 - she was taking medication to control various conditions

including depression and an unspecified mental condition. In a

later addendum to this notice, the prosecutor gave Nolen

Miller's March 27, 2001 statement, disclosed that Miller was

housed in a jail's medical unit for treatment, disclosed

Miller's use of alcohol and crack cocaine during the events at

issue, and attached a copy of Miller's plea agreement.

In those recorded statements, Miller asserted facts that

were different from her trial testimony. For example, in her

first taped statement, Miller said Donte Scarborough was among

the robbers, including Nolen. She also claimed Nolen was

driving his girlfriend's car, not Miller's. The differences

between Miller's second taped statement and her trial testimony

are more trivial. For example, in the second taped statement,

Miller claimed the robbery occurred in the middle of a yard, yet

at trial, she testified the robbery occurred close to an

apartment building. At trial, however, Nolen highlighted each

of the inconsistencies between Miller's testimony and her

previous statements. Indeed, Miller repeatedly acknowledged at

trial that she initially lied to the police about certain

aspects of the robberies. She explained that she was afraid of

retaliation from the robbers, whom the police had not arrested.

The record supports the trial judge's ruling that the

Commonwealth's disclosure was sufficient. The prosecutor

disclosed Miller's recorded statements, told the defense of her

- 7 - mental and drug problems, and indicated he expected Miller's

testimony to be inconsistent with her first statement. The

trial judge correctly observed "that the Commonwealth has

provided the information . . . they have [from Miller] and it's

a matter of [Nolen] drawing conclusions from what that

information says." We hold that the record fails to establish a

Brady violation as to Miller's statements and disclosures.

III.

Nolen contends the Commonwealth committed an additional

Brady violation by failing to disclose that Donte Ward told

police detectives Nolen was not involved in the robbery. The

trial judge ruled that the failure to disclose Ward's statement

was a violation, but he concluded that the omission was not

material. In support of his ruling, the trial judge found as

follows:

[T]here could be no possible doubt that the defendant did, in fact, commit crimes for which he was tried and convicted. And the reason that I say this is that, we have his statement that he gave to the police, and the statement is reliable. It has a lot of facts about the offense which would probably be only known to someone who did take part in the crime. And then, of course, we had the testimony of . . . Miller who was a codefendant who the Court considered to be a very credible witness, who also unequivocally implicated the defendant in the criminal activity.

- 8 - Evidence is material under Brady "if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different." Bagley, 473 U.S. at 682.

"'A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.'" Therefore, appellant "must show that when the case is evaluated in the context of the entire record, including the omitted evidence, a jury would have entertained a reasonable doubt" as to appellant's guilt. "The mere possibility that an item of undisclosed information might have helped the defense . . . does not establish 'materiality' in the constitutional sense." "The materiality inquiry is a context-specific determination; evidence that is material in one setting could be immaterial in another."

Frontanilla v. Commonwealth, 38 Va. App. 220, 226-27, 562 S.E.2d

706, 709 (2002) (citations omitted).

In light of Nolen's confession, Lassiter's testimony, and

Miller's testimony, which the trial judge found to be "very

credible," we hold that even if the Commonwealth had disclosed

Ward's statement to the defense, it is unlikely the result of

the trial would have been different. Nolen's confession, which

was corroborated by Miller's testimony, established that Nolen

participated in only one robbery with Miller and the other men.

Moreover, Nolen's confession gave explicit details that linked

him to the robbery of Lassiter. Although the evidence at the

sentencing proceeding proved that Ward identified the

participants who robbed Lassiter and named another person in

- 9 - lieu of Nolen, the evidence also proved Ward had participated in

numerous robberies. In view of Nolen's admitted participation

in only one robbery and Ward's participation in numerous

robberies, we cannot say the trial judge erred in concluding the

trier of fact would not be swayed by Ward's recollection, which

differed from Nolen's confession. When "evaluated in the

context of the entire record, . . . we cannot say to a

reasonable probability that the result of the proceeding would

have been different had [Ward's statement] been disclosed." Id.

at 227, 562 S.E.2d at 709. We hold that the failure to disclose

Ward's statement was insufficient to undermine the confidence of

the outcome of the trial and that the error was immaterial.

IV.

When the issue of the sufficiency of the evidence is raised

"[o]n appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). So viewed, Nolen confessed his involvement

in the robbery. He told a detective that he was the driver and

knew the robbery would occur. In particular, Nolen said he,

Ward, and Larry Mabry took Miller to the Final Frontier bar.

Nolen also said he and the other men "were going to wait for

[Miller] to bring a guy back so they could rob him." As the

trial judge noted, Nolen mentioned facts about the robbery that

- 10 - are "only known to someone who did take part in the crime."

Moreover, Miller's testimony and Lassiter's testimony

corroborated the details of Nolen's confession.

Nolen contends the evidence against him was based on the

testimony of an unreliable witness. Specifically, he questions

Miller's drug problems, her history of lying, and her incentives

for lying. "The credibility of the witnesses and the weight

accorded the evidence[, however,] are matters solely for the

fact finder who has the opportunity to see and hear that

evidence as it is presented." Sandoval v. Commonwealth, 20

Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The testimony of

Miller, which the trial judge found "very credible," was

sufficient to prove beyond a reasonable doubt that Nolen was a

participant in the crime. According to Miller's testimony,

which was strikingly similar to Nolen's own confession, Nolen

was in her apartment when the robbery scheme was planned. He

was in the car that delivered Miller to the bar where she sought

and found men to rob. Later, Nolen drove Miller's car to the

pre-arranged site and was among the three masked individuals

that robbed Lassiter. During the robbery, Miller heard Nolen

say: "Hold it right there, baby boy. Give it up."

From Nolen's confession, Miller's testimony, and Lassiter's

testimony the trial judge could conclude beyond a reasonable

doubt that Nolen conspired to commit robbery, committed the

- 11 - robbery, and used a firearm in the robbery. Therefore, we

affirm the convictions.

Affirmed.

- 12 -