State v. Broadnax

• Decision Date: 15 May 1987
• Docket Number: No. KA 4054.,KA 4054.
• Citation: State v. Broadnax, 503 So.2d 511 (La. App. 1987)
• Parties: STATE of Louisiana v. Derek A. BROADNAX and Cyrilla M. Young.
• Court: Court of Appeal of Louisiana

503 So.2d 511

STATE of Louisiana v. Derek A. BROADNAX and Cyrilla M. Young.

No. KA 4054.

Court of Appeal of Louisiana, Fourth Circuit.

November 14, 1986.

Rehearing Denied March 19, 1987.

Writ Denied May 15, 1987.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., A. Hammond Scott, Pamela S. Moran, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.

Harold Douglas, New Orleans, for appellant Derek A. Broadnax.

John Wilson Reed, Lori R. Fregolle, Glass & Reed, New Orleans, for defendant-appellant Cyrillia M. Young.

Before SCHOTT, KLEES and BYRNES, JJ.

SCHOTT, Judge.

After defendants were jointly charged by bill of information with possession with intent to distribute pentazocine in violation of LSA-R.S. 40:967 and possession of a firearm as convicted felons, in violation of R.S. 14:95.1, the charges were severed and the pentazocine charge was brought to trial. Defendant, Cyrillia Young, was convicted of possession, and defendant, Derek Broadnax, was convicted of possession with intent to distribute.

Young was sentenced to five years and a $4,958.00 fine, and Broadnax was sentenced to ten years and a $5,000.00 fine. They were both adjudged habitual offenders under R.S. 15:529.1, their sentences were vacated, and they were resentenced, Young to five years, and Broadnax, twenty years.

After obtaining a search warrant for 2212 Ursulines Avenue in New Orleans and being confronted with an iron door and a heavy wooden door at the entrance to the premises, the police obtained a wrecker and pretended to tow away an automobile from the front of the premises so as to entice the occupants to open the doors. Broadnax came out first, then Young, who was standing just outside the wooden door when the police moved to execute the warrant. As Officer Melder ran past Young she pulled the wooden door closed, it was locked, and they entered by force with Melder kicking it open. Inside the officers seized about $5,000.00 from a safe in the front room and 199 sets of Talwin and Pyribenzamine from a dresser drawer in the bedroom. They also seized a few pieces of jewelry, some marijuana, scales, two hand guns, and some ammunition.

BROADNAX ASSIGNMENT OF ERROR NO. 1:

C.Cr.P. art. 705 requires the district attorney to file separate bills of information when the court has ordered a severance. By this assignment Broadnax contends he was prejudiced because when the offenses were severed a new bill on the drug offense was not produced. Defendant has made no suggestion in the trial court or in this court as to how he was prejudiced by the state's failure to comply with C.Cr.P. art. 705. In the absence of such a showing the state's conduct is considered harmless error. State v. Sermon, 404 So.2d 261 (La.1981).

BROADNAX ASSIGNMENT OF ERROR NO. 2

By this assignment defendant attacks the trial court's denial of his motion to suppress on the ground that the search warrant was not based on probable cause. The affidavit which led to the issuance of the search warrant disclosed these facts: A confidential and reliable informant whose information in the past led to arrest of drug dealers told police he had just purchased two "sets" from one Cyrillia at 2212 Ursulines where she was living with her new boy friend, Jerry, and that wholesale amounts of sets were available there. Officer Austin, who on two previous occasions had obtained and executed search warrants at these premises and both times arrested one Cyrillia Valmore, organized a surveillance of the premises. Within an hour they observed three different individuals go to the front door. One of them went inside for a few minutes, came out, and sped away in an automobile. The other two were seen passing objects inside and, in turn, receiving objects which they placed in their clothes. One of these two was looking about constantly as if to see whether he was being observed.

In State v. Olsen, 446 So.2d 439 (La.App. 4th Cir.1984), writ denied 450 So.2d 963 (La.1984), the court summarized the principles and authorities governing review of a magistrate's decision to issue a search warrant. The affidavit here meets all the tests discussed therein. The totality of circumstances presented to the issuing magistrate established a fair probability that criminal evidence would be found at the premises to be searched. These circumstances include the information from the informant whose reliability was known to the police from prior experience, in combination with the activities observed by the police which were consistent with drug dealing. This assignment is meritless.

BROADNAX ASSIGNMENT OF ERROR NO. 3:

The record does not disclose that Broadnax filed a written motion for a severance of his trial. Young did, and Broadnax indicated to the trial judge his agreement with Young's motion. He also made an oral motion to sever immediately before trial on grounds of antagonistic defenses, which was denied. In this court, Broadnax argues the severance should have been granted pursuant to C.Cr.P. art. 704 because his defense and Young's were antagnostic with the result that justice could not be obtained from a joint trial.

Whether "justice requires a severance" under C.Cr.P. art. 704(2) must be determined by the facts of each case. State v. Turner, 365 So.2d 1352 (La.1978). The trial judge is vested with discretion in acting upon a motion for a severance the exercise of which will not be disturbed in the absence of an abuse thereof. State v. Prudholm, 446 So.2d 729 (La.1984). In that case, the court held that while a severance should be granted where the defenses are truly antagonistic, a mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance.

As Prudholm states, an antagonistic defense occurs when a co-defendant attempts to place the blame on the defendant seeking the severance, causing the latter to defend himself against the co-defendant in addition to the state. Broadnax has failed to show this. He claims he was deprived of the opportunity of accusing Young, but he does not show that he was forced to defend himself against accusations by her. Thus, his argument that he was entitled to a severance because of antagonistic defenses has no merit.

BROADNAX ASSIGNMENT OF ERROR NO. 4:

By this assignment Broadnax asserts he was deprived of his constitutional right to cross-examine one of the police officers. This stems from the trial court's ruling that questions to the officer regarding the contents of the affidavit supporting the application for the search warrant were improper. Broadnax argues that the entire focus of the affidavit both as to the confidential informant's report to the officer and the officer's own knowledge was on Young and had he been permitted to bring this out he could have shown his own "non-involvement." Several officers participated in the search. Officer Dorian testified that he seized the 199 sets from the top dresser drawer in the bedroom of 2212 Ursulines; and that he saw male clothing, and "male trappings", "some after shave, colgne and what not, things like that" in the bedroom. Officer Austin also testified he seized a number of receipts addressed to Broadnax at 2212 Ursulines and at 3116 Dumaine and an automobile title in the name of Derek Broadnax at 3116 Dumaine. In light of this evidence we are convinced that the restriction on his cross examination, if erroneous at all, constituted harmless error. Receipts in the name of Broadnax found at the address carried the implication that he resided at the house. The facts that these receipts were found in the bedroom along with his automobile title and male clothing and cosmetics tend to show his occupancy of this room where the dresser containing the drugs was located and therefore support the conclusion that he had dominion and control over the drugs. Under these circumstances there is no likelihood that the restriction of Broadnax's cross examination contributed in any way to his conviction.

BROADNAX ASSIGNMENT OF ERROR NO. 7:

Broadnax contends the state failed to establish an unbroken chain of evidence between the officer who seized the pentazocine and the criminalist who tested it. The testimony of the officer who identified the 199 sets introduced in evidence as the ones he seized was sufficient to meet the test that more probably than not these were the ones seized. State v. Vaughn, 431 So.2d 763 (La.1983).

Because of the conclusion we reach below concerning errors patent we need not consider Broadnax's remaining assignments which concern his sentence.

YOUNG'S ASSIGNMENT OF ERROR NO. 1:

Young asserts that the evidence was insufficient as a matter of law to convict her of possession of the pentazocine. She argues that no rational trier of fact could have found beyond a reasonable doubt that she exercised dominion or control over the substance and that every reasonable hypothesis of her innocence was not excluded.

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