State of Louisiana v. Shelton Broadway

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-607 consolidated with 18-605 & 18-606

STATE OF LOUISIANA

VERSUS

SHELTON BROADWAY

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2014-CR-184551-A
HONORABLE KERRY LYNDON 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.

Hon. 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. 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 separate docket numbers and will be addressed in

other opinions.

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

Between 6:30 a.m. and 7:00 a.m. on September 2, 2014, pharmacist Carl

Richard Bibbee, II received a telephone call at his home in Marksville informing

him of a break-in at his business, C & R Drugs in Moreauville. When Mr. Bibbee

arrived at his business, there was a hole in the back of the building. He took an

inventory to determine what medications had been taken and determined that a

variety was missing, including morphine sulfate, hydrocodone, fentanyl, adderall,

and cyraquell. Some other items were gone, and a safe had been ripped out of the

floor.

At the scene of a similar burglary in Avoyelles Parish, a victim found

Defendant’s driver’s license. As the investigation progressed, investigators

obtained cellphone tower location information that showed that Defendant’s

cellphone utilized a tower 300 feet from the pharmacy on the relevant date at

various times between 2:19 a.m. and 5:20 a.m. Starting at 5:35 a.m., the tracking

information showed the phone headed back toward the Baton Rouge area.

Tracking evidence showed that a cellphone belonging to a woman named Keeshla

Stagg was in the same areas during the same times, although it appears there was

not the same number of hits on her phone going back toward Baton Rouge.

Further, they were communicating by voice and by text messages. Also, 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 Ms. Stagg. She 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 three Avoyelles Parish burglaries, two of which were the subjects

of the consolidated proceeding.

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 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 at

issue. During a 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

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message 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.

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

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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:

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

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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; 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).

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

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

(alteration in original).

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 the

commission of 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 his phone from Ms. Stagg.

The evidence that Defendant burglarized C & R Drugs in Moreauville 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. It is true that Ms. Stagg testified that she sometimes

borrowed Defendant’s cellphone, but this does little to negate the cellphone tower

location evidence that placed both of their phones at the scene and the subsequent

path back to the Baton Rouge area. This is especially true because the evidence

showed they were communicating with one another by voice and by text messages.

This shows that Defendant’s phone was not just sitting unused in Ms. Stagg’s

vehicle. Also, an officer testified that the cell tower location evidence traced

Defendant’s phone from the crime scene to “the area where he’s from.” The

relevant map, S-86, does not appear to trace the phone’s route all the way back to

the area identified in companion appeal 18-606 as being near Defendant’s home.

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However, S-86 shows the phone in that area at 11:44 p.m. the night before the

offense and at the crime scene at 2:19 a.m. on the date of the offense. Thus, this

evidence limits the reasonableness of Defendant’s hypothesis that someone else

had his cellphone.

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, the evidence of the tools and mask found at

Defendant’s residence, although it is not strong in and of itself, but gains strength

when viewed in light of the cellphone location evidence. Moreover, the evidence

showed that the investigation proceeded successfully due to the fact that

Defendant’s driver’s license was found at the scene of another Avoyelles Parish

pharmacy burglary that was similar to the one at issue. As in the present matter,

cellphone tower location evidence from that case and the other consolidated case

connected Defendant to the crime scenes. The evidence from the three

consolidated cases showed a general scheme to burglarize Avoyelles Parish

pharmacies.

For the reasons discussed in regard to the burglary of C & R Pharmacy, the

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

and not him, is not sufficiently reasonable to negate the trial court’s finding that the

State proved its case beyond a reasonable doubt.

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CONCLUSION

Shelton Broadway’s conviction for simple burglary of C & R Drugs is

affirmed.

AFFIRMED.

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

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