An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-856


Filed: 1 June 2004


v .                                     Robeson County
                                        No. 01CRS053909

    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.


    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.

    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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