NO. COA01-1074
Appeal by defendant from judgments entered 19 October 2000 by
Judge Marvin Gray in Buncombe County Superior Court. Heard in the
Court of Appeals 29 July 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
Joel S. Trilling, for defendant appellant.
BIGGS, Judge.
Sylvester Cornelius Robinson (defendant) was tried by a jury
and found guilty of robbery with a dangerous weapon, conspiracy to
commit robbery with a dangerous weapon, and three counts of second-
degree kidnapping. After consolidating his kidnapping offenses for
judgment, the trial court sentenced defendant to concurrent and
consecutive prison terms totaling 114 to 155 months.
The State's evidence tended to show the following: on 18
January 1999, defendant, Millis Bryson (Bryson), and Leslie Burrell
(Burrell) entered the Peddler Steakhouse (Peddler) on Montford
Avenue in Asheville. Burrell had previously worked at the Peddler
and had suggested robbing the restaurant, because the owner, FrankPuett (Puett), kept a large amount of cash in the office. The
three sat down at a table and ordered drinks from the waitress,
Ingrid Carson (Carson). Bryson stood up and said, “[o]kay, it's
about to go down[.]” After hesitating briefly, defendant joined
Bryson, leaving Burrell at the table. When Carson returned to the
table, Burrell stood, took Carson by the arm and pushed her down
into a chair, saying, “I promise we won't hurt you, just sit right
here.” Bryson drew a gun, walked to the cash register at the front
of the store, and ordered Puett down to the ground. He then forced
Puett to crawl into the dining room while kicking him in the head.
Defendant went to the kitchen to round up the remaining employees.
At Bryson's signal, Burrell helped Bryson unlock the office door
and collect the money.
Defendant brought four employees, including waitress Laura
Stalker (Stalker), from the kitchen into the dining room at
gunpoint. He made Stalker get down on the floor beside Puett.
Bryson saw another employee, Betty Daniels (Daniels), walking past
defendant. Bryson briefly turned his attention back to Puett.
When he looked back toward defendant, Daniels was gone. Concluding
that Daniels had exited the building, Bryson told defendant, “it's
to late now. You've got to just go through with it.” Bryson left
defendant to watch the remaining employees while he returned to the
office to help Burrell with the money. When Bryson emerged from
the office, defendant and the restaurant employees were gone.
Bryson took what money he could and caught up with Burrell at the
car. Puett waved down a passing police car. After leading policeon a short high-speed chase, Burrell stopped her car and was taken
into custody. Bryson escaped on foot but was apprehended a week
later. Bryson and Burrell subsequently identified defendant as
their accomplice and led police to him.
_________________________
Defendant argues on appeal that the trial court erred in
refusing to grant a mistrial based on the prosecutor's alleged
violation of
Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215
(1963). Under
Brady, the State has an affirmative obligation to
provide defendant with any material exculpatory evidence obtained
by the police.
State v. Johnson, 128 N.C. App. 361, 496 S.E.2d 805
(1998) (quoting
Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490
(1995)). “However, there is 'no constitutional requirement that
the prosecution make a complete and detailed accounting of the
defense of all police investigatory work on a case.'”
Id. at 367,
496 S.E.2d at 809 (quoting
Moore v. Illinois, 408 U.S. 786, 795, 33
L. Ed. 2d 706, 713 (1972)). In order to prevail under
Brady,
defendant must show
“a reasonable probability that had the evidence
been disclosed, the outcome of the trial would have been
different.”
State v. Smith, 337 N.C. 658, 664, 447 S.E.2d 376, 379
(1994).
Defendant's claim arises from the revelation, during his
cross-examination of Stalker, that police presented her with a
photographic line-up “within the week after the robbery.” Defense
counsel moved for a mistrial on the ground that the prosecutor had
not disclosed the existence of this line-up in pre-trial discovery. A
voir dire proceeding revealed that the line-up viewed by Stalker
did not contain defendant's photograph. Although the police
generated a second photographic line-up approximately one year
later, there was no evidence that it was ever seen by Stalker.
Moreover, Stalker did not identify defendant at trial as a
participant in the robbery. She merely described the assailants as
“two black men” and noted that “[o]ne was taller and thinner than
the other.” Because the photographic line-up shown to Stalker was
not exculpatory and because Stalker never purported to identify or
exclude defendant as a perpetrator of the robbery, the trial court
did not abuse its discretion in denying defendant's motion for a
mistrial
.
Cf. Johnson, 128 N.C. App. at 367, 496 S.E.2d at 809.
Defendant next claims that the testimony of Bryson and
Burrell, who had entered into plea agreements with the State, was
insufficient to prove his participation in the robbery beyond a
reasonable doubt. Defendant characterizes such evidence as
“notoriously unreliable[,]” and notes that none of the restaurant
employees identified him as a perpetrator. However, it is well
established that the credibility of witnesses is a jury question,
see State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001)
,
and that accomplice testimony is sufficient to support a
conviction.
See State v. Tilley, 239 N.C. 245, 249, 79 S.E.2d 473,
476 (1954). Accordingly, the State's proffer was sufficient to
establish defendant's identity as the second gunman. Defendant
makes no additional argument regarding the sufficiency of the
evidence as to the elements of any specific offense, therefore thisassignment of error is overruled.
Defendant also challenges the admission into evidence,
pursuant to N.C.R. Evid. 803(6), of a guest ledger reflecting his
registration at the Townhouse Motel on the day of the robbery.
Defendant cites no authority in support of this claim.
Accordingly, this argument is deemed abandoned.
N.C.R. App. P.
28(b)(6).
We hold that defendant received a fair trial free of
prejudicial error.
No error.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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