COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, El der and Senior Judge Coleman Argued at Ches apeake, Virginia

ANTONIO C. NOLEN MEMORANDUM OPINION * BY v. Record No. 0226-02-1 JU DGE 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. McCullou gh, Assistan t Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

The trial judge convicted Antoni o C. Nolen of conspiracy to commit robbery, arme d 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 sufficie nt to sustain the convictions. We affirm the convictions.

I. The evidence proved Tynetta Miller gave statements to the police on Marc h 21, 2001 and March 27 , 2001, conf essing her participation with several men in a seri es of robber ies in the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.City of Portsmou th. In response to discovery, the prosecutor delivered those re corded statements to An tonio Nolen' s attorney prior to trial. The pr osecutor also informed Nolen' s attorney of an unrecorded pre-tria l interview in which Miller indicated she suffers from a mental condition that caus es hallucinations. At trial, Miller testified that Nolen was her son' s friend and that she has known Nolen "a long time." She te stified 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 agre ed 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 th e car, the four men wo uld rob the customer. Miller testified that after they devised th is plan she, Nolen, and the other me n went in Mill er's car to th e Tides Inn. Miller entered the ba r alone, had a few dr inks, and met Eliot Lassiter and Kenneth Barham. During her conversati ons with Lassiter and Barham, Mi ller 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. Mill er testified that after she and Lassit er 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, ba by boy. Give it up." Miller sa id Nolen's face was "covered wi th something," Jamall Mabry was wearing a hooded jacket, and Ward was wearing a hat. La rry Mabry

- 2 -simultaneously was robb ing Barham, who had remained in the car. Miller testified that she ran aw ay and later re turned to her apartment. No len, Ward, Jamall Mabry, an d 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 doll ars. Miller also sa id when the men left her apartment, Larry Mabry was carrying compact discs he had obtained during the robbery. On cross-examin ation, Miller admitted to "smoki ng crack that night and drinking ." Miller also ackn owledged experiencing hallucinations and havi ng mental problems. She did not recall either the day of the week the robbery occu rred or wh ether it occurred in Februa ry. She testified, howeve r, that she "kn[e]w it happened that night." She also te stified that she participated in a number of ro bberies with Larry Mabr y and Jamall Mabry on different days, but said Nolen was only involved in "this [robbery] I'm te stifying for today." When asked about the discrepancies be tween her testim ony and a stat ement she had earlier recorded for the police, Mi ller said she di d 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 falsel y told the police that Donte Scarboro ugh, rather than Donte Wa rd, participat ed in this robbery. Miller explained that she lied about Donte Sc arborough's involvement be cause she was "afr aid of the guy fi nding out [she]

- 3 -was telling everything" and "afr aid for [her] li fe." Miller acknowledged that in exchange for her test imony, the Commonwealth agreed to recomm end a "20-year ca p" for the senten cing of all her charges. Lassiter testified th at on February 25, 2001, he and Barham were at the Fina l Frontier bar, which is located beside Lappers strip club. He id entified Miller as the wo man they met in the bar and accompanied to an apartment to purchase marijuan a. When they arrived at an ap artment comple x, Lassiter exit ed the car with Miller. As they appr oached a residence, La ssiter saw three men, wearing dark clothes and "ski masks," runn ing toward him. Lassiter testified that Miller ran when th e men ordered him at gunpoint to face a wa ll and took his wall et and coat. After Lassiter returned to his car where Barham waited, Lassiter discovered that his compact discs an d cellular phone had been taken. Lassiter reported the robbery to the police th at night. A detective test ified that he questioned Nolen after Miller told the police about the robberies. During questioning, Nolen confessed his invo lvement in the robbery but said he could not "put a date" on the ro bbery. Nolen recalled, howeve r, that he, Ward and Larry Mabry to ok Miller to the "Fro ntier" bar. Later, that evening, in resp onse to Miller's tele phone call, Nolen drove Ward, Larry Mabry, and Jamall Mabry to th e vicinity of Miller's apartment. No len 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 Wa rd, 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 th e car after the robbery with a coat, a hundred-dollar bill, and a cell phone. Although Nolen disclose d other criminal activities when he talked to the police, he said this was the only robbery in which he participated. Nolen sp ecifically recalled driving Mill er's car because he was the only one of the men with a driver's license. Nolen also recalled that his parole ende d the third week in January and that the robbery occurr ed four weeks af ter his parole ended. At the conclusion of the Commonweal th's case-in-chief, Nolen re-called Mill er to testify. She testified th at 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 Ti des Inn is connected to the Lappers Club and that the Frontier ba r is "right down the street" from the Tides Inn. The trial judg e convicted Nole n of conspiracy to commit robbery, robbery, and use of a firearm in th e commission of the robbery.

II. The United States Su preme Court held in Brady v. Maryland , 373 U.S. 83 (1963), that "the su ppression by the prosecution of evidence favorable to an accused upon reques t violates due process

- 5 -where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of th e prosecution." Id. at 87. The Co urt 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

.

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