Appeal by defendant from judgment entered 27 January 2003 by
Judge William C. Gore, Jr. in Robeson County Superior Court. Heard
in the Court of Appeals 26 April 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General M. Elizabeth Guzman, for the State.
Jarvis John Edgerton, IV for defendant-appellant.
HUNTER, Judge.
Montreal Jamieson Robinson (“defendant”) appeals from a
judgment dated 27 January 2003 entered consistent with a jury
verdict finding him guilty of robbery with a dangerous weapon.
Defendant was sentenced to a minimum term of sixty months
imprisonment with a corresponding maximum term of eighty-one
months. We conclude there was no error at trial.
The State's evidence tends to show that on 14 August 2001,
Patrick Drye (“Drye”) was driving a white Dodge Neon automobile in
St. Pauls, North Carolina. Drye testified at trial that he was
flagged down by three males, later identified as Isaac, defendant,
and Little Earl. Specifically, Drye testified “after I made a
left, it was [defendant], Isaac and Little Earl coming toward --between the trailers . . . and, so, they flagged me down.” Drye
stopped because he saw Isaac waving at him. Isaac asked Drye if he
would give the three a ride, and Drye agreed. Isaac got in the
front passenger side and defendant and Little Earl got in the back
of the automobile.
As Drye approached an intersection, Isaac asked him to turn
right and Drye responded that he was turning left. Drye felt
something in his side and looked down to see Isaac pointing a gun
at him and turned right at the intersection as instructed. Shortly
after Drye made the turn, Little Earl asked to be let out of the
car and Drye stopped at a store while Little Earl exited the
automobile.
Drye resumed driving with Isaac and defendant in the car.
Defendant asked Drye how much money he had, and Drye responded by
handing over three dollars. Drye later in his testimony explained
that he originally thought he had thirty three dollars on his
person, but gave defendant all the money he had, which was three
dollars. After driving for awhile on a dirt road, Isaac ordered
Drye to stop the vehicle and get out. Drye was forced at gunpoint
to leave the car and take off all of his clothes except his socks
while Isaac and defendant watched and laughed. Eventually, Isaac
and defendant got back in the car and left, taking Drye's clothes
with them. Drye, after wrapping some material he found around
himself, made his way to a nearby house and called police.
On cross-examination of Drye, defendant questioned him about
his statement to police in which Drye stated that after droppingLittle Earl off, Isaac instructed Drye to speed up. A police
report of the incident prepared by an investigating officer stated
that Drye had informed police that after Little Earl left the car,
defendant had told Drye to “speed up and to do what [Isaac] told
him to do.” The police report also stated that Drye had been
flagged down by three males and that Drye had thirty dollars on his
person, and gave defendant three dollars.
The State introduced into evidence a “mug shot” of defendant
obtained from the Robeson County jail. It was from this “mug
shot,” used in a photographic lineup, that Drye identified
defendant to police. In introducing the photograph, the State
elicited testimony that the photograph had been obtained from the
jail. Defendant objected to this testimony, and the trial court
sustained the objection instructing the jury to disregard the
answer to where the photograph had been obtained. The photograph
was subsequently published to the jury over the general objection
of defendant. No further limiting instruction was given, and
defendant did not request any further limiting instruction.
The issues presented on appeal are whether (I) the written
statements made by Drye to police officers following the robbery
were admissible as corroborative evidence, and (II) defendant's
“mug shot” was improperly displayed to the jury without any
limiting instruction.
I.
Defendant first contends that statements in the police report
admitted into evidence as corroborative of Drye's trial testimonywere improperly admitted because they contradicted Drye's trial
testimony, we disagree.
“Our courts have long held that a witness's prior consistent
statements may be admissible to corroborate the witness's in-court
testimony.”
State v. Guice, 141 N.C. App. 177, 201, 541 S.E.2d
474, 489 (2000). “Corroborative testimony is testimony which tends
to strengthen, confirm, or make more certain the testimony of
another witness.”
State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d
89, 92 (1980). Where corroborative testimony tends to add strength
and credibility to the testimony of another witness, the
corroborating testimony may contain new or additional facts.
See
State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993).
Variances in detail between the generally corroborative testimony
and the testimony of another witness reflect only upon the
credibility of the statement.
State v. Martin, 309 N.C. 465, 476,
308 S.E.2d 277, 284 (1983). Whether testimony is, in fact,
corroborative is a factual issue for the jury to decide after
proper instruction by the trial court.
State v. Burns, 307 N.C.
224, 231-32, 297 S.E.2d 384, 388 (1982).
In this case, defendant specifically complains of three
statements in the police report: (1) that three males flagged Drye
down as he approached them in his automobile; (2) defendant told
him to speed up and do whatever Isaac told him to do; and (3) that
Drye had thirty dollars on his person. At most, however, these
statements reflect only a variance in detail between the trial
testimony of Drye and the generally corroborative police report. First, Drye, in fact, testified at trial that he was flagged
down by all three males, and specifically by Isaac, who was with
the others, waving at him. Second, defendant, during cross-
examination of Drye, elicited the testimony that Drye told police
that it was Isaac, rather than defendant, who told him to speed up.
Whether it was defendant or Isaac who told Drye to speed up is,
however, immaterial and generally corroborates the fact that Drye
was forced at gunpoint to speed up. Finally, Drye also testified
that he initially thought he had thirty three dollars, but gave
defendant all he had, which was only three dollars. The police
report states that Drye had thirty dollars and gave defendant three
dollars. Again, this is at most merely a very slight variance in
detail, not a material inconsistency with Drye's trial testimony.
Thus, the trial court did not err in admitting the statements in
the police report as corroborative evidence.
II.
Defendant also argues that admission of his “mug shot”
obtained from the Robeson County jail, and used in a photographic
lineup, was inadmissible evidence of bad character and unduly
prejudicial under Rule 404(b) and Rule 403 of the Rules of
Evidence.
Generally, a jail “mug shot” is inadmissible as evidence of a
defendant's bad character, where the defendant has not put his
character in issue.
See State v. Foster, 63 N.C. App. 531, 535,
306 S.E.2d 126, 128-29 (1983). A “mug shot” may, however, be
admissible for some other purpose.
See id. at 536, 306 S.E.2d at129. In this case, the photograph was introduced as admissible
evidence of the identity of defendant as one of the men who robbed
Drye.
See N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003).
“[W]hen evidence is competent for one purpose, but not for
another, the party against whom it is offered is entitled,
upon
request, to have the jury instructed to consider it only for the
purposes for which it is competent.”
Foster, 63 N.C. App. at 536,
306 S.E.2d at 129. In this case, defendant made no such request
for a limiting instruction, instead lodging only a general
objection to the admissibility of the “mug shot.”
Furthermore, we note that although defendant did not
specifically raise the argument before the trial court, under Rule
403 the “mug shot” was not so unduly prejudicial to defendant to
substantially outweigh its relevance to show defendant's identity
as one of the robbers.
See N.C. Gen. Stat. § 8C-1, Rule 403
(2003). The trial court instructed the jury to disregard testimony
as to where the “mug shot” was obtained. Moreover any improper
prejudicial effect on the jury would have been cured had defendant
requested an instruction on the limited purpose for which the
evidence was being offered. Nevertheless, even assuming the trial
court did err to the extent it admitted the “mug shot” without
limiting instruction, any such error was harmless as there was
substantial evidence defendant shared with Isaac the common purpose
of committing the armed robbery of Drye and was thus guilty of the
offense. Defendant was present throughout the robbery and, in
fact, was the one who took the money from Drye. Defendant furtherstood with Isaac and laughed as the two forced Drye to undress at
gun point, and ultimately stole his clothes and car.
No error.
Chief Judge MARTIN and Judge THORNBURG concur.
Report per Rule 30(e).
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