State of Louisiana v. Shelton Broadway

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-605 consolidated with 18-606, 18-607

STATE OF LOUISIANA

VERSUS

SHELTON BROADWAY

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2014-CR-184549-A
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry,
Judges.

AFFIRMED.

Charles A. Riddle, III
District Attorney
Jonathan T. Gaspard
Assistant District Attorney
Twelfth Judicial District
P.O. Box 1200
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR APPELLEE:
State of Louisiana

Holli Ann Herrle-Castillo
LA Appellate Project
P.O. Box 2333
Marrero, LA 70073
(504) 345-2801
COUNSEL FOR DEFENDANT/APPELLANT:
Shelton Broadway

EZELL, Judge.

On December 16, 2014, the State filed a bill of information charging

Defendant Shelton Broadway and two co-defendants with simple burglary, in

violation of La.R.S. 14:62. Said co-defendants did not participate in the trial at

issue. On February 18, 2016, Defendant waived his right to a jury trial. The case

was consolidated with burglary proceedings under two other docket numbers on

September 6, 2017. The bench trial commenced on October 18, 2017; the trial

court reached a verdict of guilty on the same date. The State informed the trial

court that it would file habitual offender proceedings. Said proceedings were filed

under a separate docket number.

On March 21, 2018, Defendant filed a motion for appeal. He now seeks

review by this court, assigning a single error pursuant to this docket number.

FACTS

On the morning of September 22, 2014, pharmacist Jeff Juneau parked

behind his business, City Drugs, in Bunkie, Louisiana. He noticed a driver’s

license lying behind his store and a hole in the wall. Immediately, he went to the

Bunkie police department to file a report. He took an inventory and found that

various medications had been stolen including promethazine, a drug with the street

name “drank.” The total value of the stolen items was $2,300.

Investigators identified Defendant from his driver’s license. The ensuing

investigation determined that on September 22, 2014, Defendant’s cellphone was

near a cellphone tower located two-tenths of a mile from City Drugs between 3:31

a.m. and 3:47 a.m. Police were also able to track Defendant’s cellphone on a path

back to the Greater Baton Rouge area and eventually Baker, where other evidence

showed that Defendant went to obtain a new driver’s license at the area Office of

Motor Vehicles. The testifying officer acknowledged that cell tower location data

is not exact, but noted that it certainly identifies what town a person is in and that a

cellphone normally operates in conjunction with the tower nearest to it. Phone

records also showed that at 9:21 a.m., Defendant texted that he had some “drank”;

the man replied to find out what color it was. Defendant texted that he had green,

purple, and yellow. These colors matched the promethazine taken from City

Drugs. At 9:39 a.m., Defendant texted to another individual that he was at the

“DMV” in Baker. The officer testified that the time-stamp on the license he

acquired was for 9:56 a.m. When police searched Defendant’s residence, they

found a sledge hammer, electric drills, grinders, and bolt-cutters; one bag of tools

they found also contained a mask, gloves, and a hoodie.

The investigation also led to the arrest of an accomplice named Keeshla

Stagg. Ms. Stagg told investigators that she had driven Defendant and other

accomplices to various locations so they could burglarize pharmacies. Some

medication from another pharmacy burglary was found in her storage locker;

before the trial at issue, she pled guilty in connection with the two similar

burglaries that were also subjects of the consolidated proceeding and a third

burglary that was not a subject of these proceedings. Notably, Ms. Stagg’s

cellphone showed no activity in Bunkie at the time of the offense.

When Ms. Stagg initially took the stand, she acknowledged having pled

guilty to three counts of simple burglary in connection with pharmacy burglaries in

Avoyelles Parish, but denied that Defendant was involved. She claimed that any

information she allegedly gave implicating Defendant was paraphrased. At that

point, she also claimed that her earlier pleas were “best interest” pleas. Further, she

specifically testified that she did not know anything about the burglaries. During a

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brief cross-examination, she testified that she sometimes borrowed Defendant’s

vehicle and that he sometimes left his license in it when she borrowed it. Also, she

stated that she sometimes borrowed his cellphone. Further, a text exchange

between them indicated that Ms. Stagg had Defendant’s license in her car on

September 2, 2014.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent. After reviewing the record, this court notes one error patent. The

defendant was charged with three separate counts of simple burglary by three

separate bills of information. Defendant thereafter waived his right to a jury trial

and elected to be tried by the trial judge alone. On September 16, 2017, the State

filed a motion to consolidate the cases for trial. That motion was granted in

writing by an order of the trial court that same day. However, a hearing on a

motion for severance of the cases for trial by counsel for Defendant was heard on

October 3, 2017. At the conclusion thereof, the trial court denied the motion. The

trial court gave oral reasons for the denial as follows:

As far as the Motion for Severance these are very old cases, I
think justice would be served, we need to bring closure to this, I’m
going to . . . I see no reason to grant a severance under the
circumstances presented, especially when the cases are so close in
time and have so many common threads that appear from the
testimony that I’ve heard here today.

I think justice would be served by this one day, everybody
wants their day in court, let’s get the day in court, let’s do it, let’s
close the door and let’s finish this. And the [] severance is going to be
denied.

Counsel for Defendant objected to the ruling in open court immediately

thereafter. The case proceeded to trial on October 18, 2017.

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It appears the simple burglary offenses could have been charged in the same

bill of information pursuant to La.Code Crim.P. art. 493:

Two or more offenses may be charged in the same
indictment or information in a separate count for each offense if
the offenses charged . . . are of the same or similar character or
are based on the same act or transaction or on two or more acts
or transactions connected together or constituting parts of a
common scheme or plan; provided that the offenses joined must
be triable by the same mode of trial.

Since, however, the simple burglary offenses were charged in separate bills

of information, they could not be consolidated for trial on the State’s motion.

Louisiana Code of Criminal Procedure Article 706 provides that on “motion of a

defendant, or of all defendants if there are more than one, the court may order two

or more indictments consolidated for trial if the offenses and the defendants, if

there are more than one, could have been joined in a single indictment[,]” and

thereafter, the case shall proceed “as if the prosecution were under a single

indictment.” Thus, only the defendant can move to consolidate two or more

separately indicted offenses for trial. In the present case, the State opted to file

separate bills of information charging Defendant with three burglary offenses.

Thereafter, it filed a motion to consolidate the offenses for trial, an act it is not

permitted to do, and the trial court erred in signing the order granting the motion to

consolidate. See State v. Thomas, 17-526 (La.App. 3 Cir. 12/13/17), 258 So.3d

708, where this court recognized the improper consolidation of offenses as an error

patent but found the error was waived by the defendant’s failure to object.

Defendant objected to the consolidation of the simple burglary offenses by

filing a motion to sever, but Defendant does not raise any such error on appeal. In

order to be considered a reversible error, the defendant must show that he was

prejudiced by the consolidation:

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Consolidation of two or more criminal cases is governed by
La.C.Cr.P. art. 706, which provides that “[u]pon motion of a
defendant, or of all defendants if there are more than one, the court
may order two or more indictments consolidated for trial if the
offenses and the defendants, if there are more than one, could have
been joined in a single indictment.” The provision has remained
unchanged since the legislature added it to the Code of Criminal
Procedure in the comprehensive 1966 revision, see 1966 La. Acts 310,
although the legislature has since then considerably expanded the
rules governing joinder of two or more criminal offenses in a single
proceedings [sic]. The statute permits a defendant to intrude on the
otherwise plenary discretion of the state to determine “whom, when,
and how” to prosecute, La.C.Cr.P. art. 61, by moving the trial court to
consolidate crimes the state has chosen to prosecute in separate cases.
However, given Louisiana’s present broad joinder rules, La.C.Cr.P.
art. 706 does not confer on a defendant a statutory right to hold the
state to its initial charging decision that he alone may waive by
moving for consolidation of the charges. Assuming that the crimes are
otherwise properly joined in a single prosecution as a matter of
La.C.Cr.P. art. 493 or 493.2, the state may effect consolidation
without the approval of the defendant or the court by filing a
superceding indictment. See La.C.Cr.P. art. 706, Off’l Cmt.1966
(“[T]he state can accomplish the same result by dismissing all charges
and recharging in a consolidated form.”). The state may also achieve
the same end by exercising its authority under La.C.Cr.P. art. 487 to
make substantive amendments to an indictment at any time before the
beginning of trial, subject to the defendant’s right under La.C.Cr.P.
art. 489 to move for a continuance if the amendment has led to his
prejudice. See State v. Lovett, 359 So.2d 163, 166 (La.1978) . . . .

In the present case, the state’s “housekeeping” immediately
before trial did not involve formal consolidation of the cases through
the filing of a superceding indictment or amendment of the original
indictments. However, for purposes of appellate review, whether the
claim involves misjoinder of offenses, prejudicial joinder, or improper
consolidation, the defendant must show prejudice to establish that trial
of two or more crimes in a single proceeding “affect[ed] his
substantial rights.” La.C.Cr.P. art. 920; see State v. Strickland, 94-
0025, p. 13 (La.11/1/96), 683 So.2d 218, 226. . . .

We therefore agree with the court of appeal’s observation in the
present case that “[t]he same considerations used by the trial court in
determining whether prejudice may result from joinder can also be
used to determine whether prejudice results from consolidation.”
[State v.] Crochet, 04-0628 at 6, [(La.App. 1 Cir. 12/17/04),] 897
So.2d 731, 735. Those considerations include “whether the jury
would be confused by the various charges; whether the jury would be
able to segregate the various charges and evidence; whether the
defendant could be confounded in presenting his various defenses;

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whether the crimes charged would be used by the jury to infer a
criminal disposition and finally, whether, especially considering the
nature of the charges, the charging of several crimes would make the
jury hostile.” State v. Washington, 386 So.2d 1368, 1371 (La.1980).

State v. Crochet, 05-123, pp. 3-6 (La. 6/23/06), 931 So.2d 1083, 1085-87 (footnote

omitted) (first, third, fourth, and fifth alterations in original).

The trial in the present case was a bench trial, before a trial judge rather than

a jury, which lessened any chance of prejudice from the effects of multiple crimes

being presented at one trial. Moreover, Defendant does not allege to this court any

prejudice regarding the consolidation of his offenses for trial. Thus, based on the

lack of any allegation of prejudice, we find the error does not warrant reversal.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant argues that the evidence adduced

by the State at trial was insufficient to support his convictions, as it failed to

exclude a reasonable hypothesis of innocence, i.e., that Ms. Stagg was the burglar.

Under the due process standard of Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in
original), “the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” When reviewing a conviction based upon
circumstantial evidence, the reviewing court must determine whether,
viewing the evidence in the light most favorable to the prosecution, a
reasonable trier of fact could have concluded beyond a reasonable
doubt that every reasonable hypothesis of innocence had been
excluded. See State v. Morris, 414 So.2d 320, 321-22 (La. 1982)
(citation omitted); see also State v. Captville, 448 So.2d 676, 680 (La.
1984) (“When a case involves circumstantial evidence, and the jury
reasonably rejects the hypothesis of innocence presented by the
defendant’s own testimony, that hypothesis falls, and the defendant is
guilty unless there is another hypothesis which raises a reasonable
doubt.”). The reviewing court “does not determine whether another
possible hypothesis has been suggested by defendant which could
explain the events in an exculpatory fashion[; rather, the reviewing
court] evaluates the evidence in the light most favorable to the
prosecution and determines whether the alternative hypothesis is
sufficiently reasonable that a rational factfinder could not ‘have found

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proof of guilt beyond a reasonable doubt.’ ” Captville, 448 So.2d at
680 (emphasis in original; citation omitted).

State v. Lewis, 17-81, pp. 3-4 (La. 10/18/17), 236 So.3d 1197, 1198-99 (per curiam)

(alteration).

Defendant notes that none of the items from any of the pharmacies were

found in his possession or in his residence, that there were no fingerprint or DNA

matches to him, that the tools recovered at his residence were not unique in

burglaries, that the cellphone location evidence did not show precise locations, that

there was no directly-incriminating evidence in any of the text messages admitted

at trial, that there was evidence that Ms. Stagg had been in possession of

Defendant’s driver’s license at some point, and finally that Ms. Stagg testified that

she never told police that Defendant was involved and that they paraphrased her

words to implicate him. He also suggests that one of the other accomplices could

have borrowed the phone from Ms. Stagg.

The evidence that Defendant burglarized City Drugs in Bunkie is strong.

The cell tower location evidence places his cellphone in the vicinity of the relevant

drug store in the predawn hours of the relevant date, then moving back to the

Baton Rouge area, and finally to Baker. It is true that Ms. Stagg testified she

sometimes had Defendant’s license, and text messaging from an earlier date

supported this contention. However, the fact that his license was found at the

crime scene, viewed in conjunction with the cell tower evidence, constitutes strong

evidence that he was there. Also, the cellphone location evidence, which traced

Defendant’s phone from the crime scene to the Office of Motor Vehicles in Baker,

limits the reasonableness of a hypothesis that someone else had his cellphone.

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Further, there was reason for the fact finder to be skeptical of Ms. Stagg’s

credibility, as there was police testimony that she had implicated Defendant during

an earlier interview. Also, Defendant’s texts indicated that he had multiple colors

of “drank”, coupled with testimony that “drank” is the street name for

promethazine and that the burglar or burglars took multiple colors of promethazine

from City Drugs a few hours before. This evidence viewed alongside the cell

tower location evidence, reveals a solid case that Defendant burglarized City Drugs.

Also, the evidence of the tools and mask found at his residence is, although not

strong in and of, but gains strength when viewed in light of the other evidence.

Further, cellphone tower location evidence from the consolidated cases connected

Defendant to the other crime scenes in Avoyelles Parish. The three burglaries had

clear similarities; thus, the evidence from the three consolidated cases showed a

general scheme to burglarize Avoyelles Parish pharmacies.

For the reasons discussed, we find that in regard to the City Drugs burglary,

the alternative hypothesis proposed by Defendant, i.e., that Ms. Stagg was the

offender and not him, is not sufficiently reasonable to negate the district court’s

finding that the State proved its case beyond a reasonable doubt.

CONCLUSION

Shelton Broadway’s conviction for simple burglary of City Drugs is

affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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