Opinion
2016 KA 0275
09-16-2016
STATE OF LOUISIANA v. KEVIN BROADWAY
Hillar C. Moore III District Attorney Stacy Wright Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Gwendolyn K. Brown Baton Rouge, Louisiana Counsel for Defendant-Appellant Kevin Broadway
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 01-13-0742, SECTION III, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE MICHAEL R. ERWIN, JUDGE Hillar C. Moore III
District Attorney
Stacy Wright
Assistant District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana Gwendolyn K. Brown
Baton Rouge, Louisiana Counsel for Defendant-Appellant
Kevin Broadway BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: CONVICTION AND SENTENCE AFFIRMED.
CHUTZ, J.
Defendant, Kevin Broadway, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and filed a motion to suppress, which the trial court denied. Following a jury trial, defendant was found guilty as charged. Defendant filed motions for new trial and postverdict judgment of acquittal, both of which the trial court denied. Thereafter, the trial court sentenced defendant to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging two assignments of error. For the following reasons, we affirm defendant's conviction and sentence.
FACTS
On the morning of September 22, 2011, Baton Rouge Police Department ("BRPD") Officer Ivory Taylor was dispatched to the Motel 6 at Gwenadele Avenue and Airline Highway in response to a body found lying naked next to a dumpster. Upon arriving at the scene, Officer Taylor determined that the individual, later identified as Kristin Lynn Granier, was deceased. When the victim was found, she was discovered to have a shoestring (attached to a shoe) tied around her neck. An autopsy subsequently determined that the cause of death was mechanical asphyxiation, secondary to strangulation, and the manner of death was homicide.
Swabs of the victim's body could not eliminate defendant as a source of DNA in samples taken from the victim's vagina, cervix, vulva, rectum, breast, inner thigh, left and right hand, neck, and right arm; defendant also could not be eliminated as a contributor to DNA found on the shoe and shoestring attached to the victim's neck. With respect to the mixture of DNA found in the vaginal swab, statistical analysis indicated that it was 52.8 quadrillion times more likely this DNA profile originated from a mixture of the victim's and defendant's DNA than an unrelated, random, black male; for the rectal swab, this multiplier was 247 quintillion; for the shoe and shoestring, this multiplier was 1.21 million.
Defendant was eventually arrested as a result of this DNA evidence, and he gave a statement to the police. In this statement, defendant stated that the victim was a prostitute, and he occasionally had sex with her in exchange for money. He also stated that the victim liked drugs and asked for crack cocaine. Defendant admitted to having sex with the victim on the night before her body was found, but he denied killing her. He told the police that the sex took place inside his girlfriend's car, a gold Kia. Defendant also initially admitted that the victim was in the car with him at the Motel 6, but he later retracted this statement when he was told that the property had cameras. Defendant did not testify at trial.
The police retrieved surveillance video from several security cameras positioned around the Motel 6. The seven-plus hours of video from each of these cameras were edited to a relevant "snippet" beginning around 4:11 a.m. on the morning the victim's body was discovered. At this time, a car identified at trial as a 2006-2011 Kia Rio can be seen twice entering and exiting the Motel 6 parking lot. On the second occasion, this vehicle entered the parking lot with its headlights turned off. Because of the quality of the video, neither the driver nor the vehicle's license plate could be identified at trial.
At trial, the State also introduced evidence that defendant had previously committed two crimes involving strangulation in Livingston Parish. In the first incident, defendant pled guilty to manslaughter in the death of another prostitute, Tammy Smith, who was found dead on December 4, 1997. When this victim was found, she was partially clothed. In the second incident, a surviving victim identified defendant to the police as the person who entered her home and strangled her to the point of unconsciousness. This victim later regained consciousness and discovered that she was naked, and all of her clothes were missing. Following the State's presentation of evidence, a jury found defendant guilty of the second degree murder of Kristin Lynn Granier.
MOTION TO SUPPRESS
In his first assignment of error, defendant asserts that the trial court erred in denying his motion to suppress the "snippet" of surveillance video presented at trial. He contends that the State was unable to provide a chain of custody to demonstrate that this video was unaltered from the video obtained from the motel.
Prior to trial, defendant filed a "motion to suppress identification" wherein he sought to exclude introduction of the "snippet" of surveillance video into evidence by the State at trial. Defendant contended that the State was unable to provide a chain of custody for the video, nor was it able to present any evidence that defendant was the person operating the vehicle on the video.
With respect to defendant's second claim, we note that defendant was never identified as driving the vehicle at issue in the relevant portion of the video.
Before opening statements, the trial court held a hearing to address defendant's motion to suppress. BRPD Detective Jim Verlander testified that he retrieved the surveillance videos from the Motel 6 by downloading them to a thumb drive. From the thumb drive, Detective Verlander transferred the videos to his department laptop and, from there, onto a DVD. When presented with a display at the hearing, Detective Verlander stated that the footage had not been modified at all. The State then presented Detective Verlander with a separate video that he identified as "snippets out of the original video that [he] obtained." He stated that this footage, which purportedly showed the suspect vehicle driving around the Motel 6 parking lot, did not appear to have been altered other than having the order changed from the way he downloaded it. Otherwise, it fairly and accurately depicted the Motel 6 security footage.
At trial, Detective Verlander again testified when the edited video was introduced. He described the video at issue (State's exhibit 18) as a "snippet" created by the district attorney's office, from longer videos, to focus upon a suspicious vehicle that appears around 4:11 a.m. on the morning the victim's body was found. BRPD Detective Chris Johnson also testified at trial and stated that the only suspicious thing on the surveillance videos was this same suspect vehicle.
In determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin , 372 So.2d 1222, 1223 n.2 (La. 1979). --------
We note first that a motion to suppress is not the proper vehicle for a defendant to challenge the introduction of evidence based upon a deficient chain of custody. Louisiana Code of Criminal Procedure article 703 only applies to the suppression of evidence obtained by an unconstitutional search (and not to challenges of relevancy or prejudicial effect). See La. C.Cr.P. art. 703(A); State v. Naas , 409 So.2d 535, 545 (La. 1981) (on rehearing), cert. denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332 (1982); State v. Joseph , 454 So.2d 237, 242 (La. App. 5th Cir. 1984) (question of relevancy and/or chain of custody is not properly within the scope of a motion to suppress).
While defendant did not object to the introduction of the "snippet" video at trial, we recognize that he did file a written motion, albeit one that was mistitled, that sought to exclude this evidence. Therefore, we will review this assignment of error as one from the denial of a written motion, for which there is no contemporaneous objection requirement. See La. C.Cr.P. art. 841(B).
To be admitted at trial, demonstrative evidence must be identified. This identification can be visual, that is, by testimony at trial that the object exhibited is the one related to the case. Alternatively, the evidence can be identified by a chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Pittman , 486 So.2d 895, 896 (La. App. 1st Cir. 1986). The purpose of the chain-of-custody rule is to prevent evidence from being tampered with or from being lost. State v. Gaudet , 93-1641 (La. App. 1st Cir. 6/24/94), 638 So.2d 1216, 1223, writ denied, 94-1926 (La. 12/16/94), 648 So.2d 386. However, the law does not require that the evidence as to custody eliminate all possibility that the object has been altered. In order to introduce demonstrative evidence, threshold legal requirements are satisfied if the foundation laid establishes that it is more probable than not that the object is the one connected to the case. Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence, rather than to its admissibility. Ultimately, a chain of custody or connexity of the physical evidence is a factual matter for determination by the jury. State v. Spooner , 550 So.2d 1289, 1304 (La. App. 1st Cir. 1989), writ denied, 566 So.2d 394 (La. 1990).
In the instant case, the "snippet" video was clearly identified by Detective Verlander both at the pretrial hearing and at trial. He testified that the "snippet" was created by the district attorney's office from the longer surveillance videos in order to highlight the time when the suspect vehicle appeared on the premises of the Motel 6. A fair interpretation of Detective Verlander's testimony is that the State simply edited out irrelevant portions of the security footage so as not to waste time during trial. Detective Verlander stated that this "snippet" video fairly and accurately depicted the footage from the security cameras for the relevant time frame.
Based on our review of the foundation laid, the record supports a finding that Detective Verlander's testimony demonstrated it was more probable than not the "snippet" video was connected to this case. Defendant did not challenge the admissibility of the longer surveillance videos, and while the "snippet" video was undoubtedly edited to highlight the relevant portion, it was not apparently tampered with or compromised in any substantive fashion. We further note that defendant had complete access to the unedited surveillance videos and could have elected to publish them in their entireties to the jury, but he elected not to do so.
This assignment of error is without merit.
OTHER CRIMES EVIDENCE
In his remaining assignment of error, defendant alleges that the trial court erred in allowing the State to introduce evidence of other crimes. He submits that these prior acts were not sufficiently similar to the instant offense and were introduced for the improper purpose of painting defendant as a man of bad character.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett , 99-0917 (La. App. 1st Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115. Louisiana jurisprudence allows the use of other crimes evidence to show modus operandi (i.e., system) as it bears on the issue of identity, particularly when the modus operandi employed by the defendant in both the charged and uncharged offenses is so peculiarly distinctive one must logically say they are the work of the same person. See State v. Hills , 99-1750 (La. 5/16/00), 761 So.2d 516, 520-21. A trial court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano , 2002-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam).
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.
Before other crimes evidence can be admitted as proof of identity, three prerequisites must be satisfied: (1) the prior acts must be similar; (2) there must be a real and genuine contested issue of identity at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect. See La. C.E. arts. 403 & 404(B); State v. Lee , 2005-2098 (La. 1/16/08), 976 So.2d 109, 139, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L. Ed.2d 39 (2008); State v. Day , 2012-1749 (La. App. 1st Cir. 6/7/13/), 119 So.3d 810, 814-15. The other crimes evidence presented at defendant's trial met these requirements.
Retired Livingston Parish Sheriff's Detective Kearney Foster testified at a pretrial hearing and at trial to detail the other crimes evidence sought to be introduced by the State. He testified that defendant pled guilty to the manslaughter of Tammy Smith, a prostitute found dead in Livingston Parish on December 4, 1997. Like the victim in the instant case, Smith's body had been found partially clothed, and she died as a result of strangulation. Also similar to the instant victim, defendant admitted to having sex with Smith, and his sperm was found in her vagina. Detective Foster also testified that he investigated defendant for a second strangulation with a surviving victim. This victim positively identified defendant as someone who came into her house and strangled her. When she regained consciousness after the incident, the victim could not remember whether she had been raped, but she was naked, and her clothes had been taken. The second victim also lived relatively near to where Smith's body was found.
Considering the above, we conclude that the trial court did not abuse its discretion in allowing the State to present other crimes evidence at trial. The prior offenses demonstrated a high degree of similarity to the instant offense and peculiarity to defendant. All of the offenses involved strangulation and victims in varying states of undress. In each of the prior cases, defendant was unequivocally identified as the perpetrator - once by guilty plea, and once by eyewitness identification from a surviving victim. Further, two State witnesses (Detective Foster and Dr. William "Beau" Clark, the coroner) testified regarding the rarity of homicide occurring by strangulation. Detective Foster stated he had handled only one other strangulation homicide over thirty-five years in law enforcement, and Dr. Clark testified he had only dealt with one other strangulation homicide since he became coroner in March of 2012. While the instant offense included the use of a shoestring as a strangulation tool, this difference alone is not so great as to render the instant offense dissimilar.
In addition to the similarity of the offenses, there was a real and genuine contested issue of identity at trial. There were no apparent eyewitnesses to the victim's murder. Further, the Motel 6 surveillance videos were not clear enough to identify defendant as the driver of the suspect vehicle or to show that vehicle's license plate. Finally, defendant gave a statement in which he denied killing the victim. Therefore, the other crimes evidence was independently relevant to the issue of defendant's identity as the perpetrator via proof of his modus operandi.
Lastly, the trial court implicitly concluded that the probative value of this evidence outweighed its prejudicial effect. While the prejudicial effect of the other crimes evidence was certainly high, due to the light in which it painted defendant, it was highly probative on the issue of identity, as discussed above.
Considering the record as whole, we conclude that the trial court did not abuse its discretion in allowing the State to present evidence of defendant's prior instances of strangulation.
This assignment of error is without merit.
DECREE
For all these reasons, we affirm the conviction and sentence of defendant, Kevin Broadway.
CONVICTION AND SENTENCE AFFIRMED.