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 

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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] 

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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 

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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 

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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 

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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 

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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. 

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 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 

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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 

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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 

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

affirm the convictions. 

 Affirmed. 

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