Judgment rendered April 10, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,591-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
BRAD A. GALLOWAY Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 391,581
Honorable Donald Edgar Hathaway, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
REBECCA A. EDWARDS COURTNEY RAY Assistant District Attorneys
Before PITMAN, COX, and HUNTER, JJ. COX, J.
This criminal appeal arises from the First Judicial District Court,
Caddo Parish, Louisiana. On April 25, 2023, defendant, Brad Galloway
(“Galloway”), was convicted by a unanimous jury of one count of attempted
simple robbery. Following sentencing, Galloway was sentenced to three and
one-half years at hard labor. Galloway now appeals his conviction and
sentence, alleging that the evidence presented at trial was insufficient to
positively identify him as the attempted robber and that his sentence was
excessive. For the reasons set forth below, we affirm Galloway’s conviction
and sentence.
FACTS
On October 24, 2022, Galloway was charged by bill of information of
attempted simple robbery, in violation of La. R.S. 14:27 and 14:65, of Home
Federal Bank on September 22, 2022. Trial began on April 25, 2023,
wherein the following testimony was elicited:
First, Officer Garrett Hayes (“Officer Hayes”), of the Shreveport
Police Department (“SPD”), testified that on September 22, 2022, he was
dispatched to Home Federal Bank in response to an attempted robbery.
Officer Hayes testified that while en route, he learned that a white male
entered the bank and gave the teller a note demanding money, but after the
teller refused to comply, the man left in a dark-colored sedan. Officer Hayes
stated that when he arrived, he spoke with the manager and two tellers and
confirmed that a white male entered the building and put a grocery bag and a
note on the teller’s counter. Officer Hayes explained that the note demanded
that the teller place cash into the bag, without dye packs, and to wait ten
minutes before contacting the police. Officer Hayes stated that during his investigation, he reviewed the
bank’s surveillance footage and observed a white male, around 5’10”, over
200 pounds, wearing a dark-colored shirt, pants, wig, maroon hat, glasses,
and a face mask. He stated that after he reported the suspect’s description,
another officer detained a man, later identified as Galloway, matching the
description at the parking lot of the Siegel Suites, a hotel near the bank. On
cross-examination, Officer Hayes admitted that the suspect in the video was
seen wearing a blonde wig and glasses, but neither item was ever recovered.
Officer Hayes then admitted that at no point during the suspect’s interaction
with the teller did he remove any clothing so that his facial identity was
revealed.
Next, Vanessa Gray (“Gray”), the branch manager for Home Federal
Bank, testified that she worked for the company for ten years. She stated
that, for safety concerns, she was trained to recognize anything out of the
ordinary, or anyone who acts suspiciously or enters the bank in sunglasses,
hats, masks, or a disguise to conceal their face. After the State introduced
and played a copy of the surveillance footage taken from the bank on the
date of the incident, Gray testified that on the day of the incident, she left her
office when she noticed a man enter the building wearing a wig, hat, and
sunglasses. She stated that she immediately asked the man to remove his hat
and sunglasses, but he failed to comply. Gray testified that the teller on
duty, Hannah Gibson (“Gibson”), then showed her the note the man handed
her.
Gray explained that she was upset upon seeing the note and after the
man left, she pushed the panic button, called the police, had an employee
2 lock the door,1 and instructed a teller to take a picture of the vehicle the man
left in. Gray testified that shortly after she spoke with officers, she was
taken to identify the man she saw enter the bank. Gray then confirmed that
the man she identified for officers was the same person who attempted to rob
the bank. Gray then identified Galloway in open court as the man she
identified to officers. On cross-examination, Gray admitted that the man
who entered the bank never removed his hat, sunglasses, or face mask, so
she never saw his face; however, she was able to identify him by his body
type.
Gibson, who worked as a teller for Home Federal Bank when the
incident occurred, reviewed the surveillance footage and testified that on the
day of the incident, a man entered the building and handed her a note. She
explained that she handed the note to Gray, who then directed the man to
remove his hat and mask. Gibson stated that after Gray asked the man to
remove those items a few times, he got frustrated and said in a louder voice
that they were not doing what he wanted. Gibson stated that at some point
after the man left, Gray called the police, the building was locked, and she
took pictures of the vehicle the man left in. Gibson then explained that after
officers arrived, she showed them the photos she took of the vehicle before
she was taken to identify the man.
Gibson stated that the person she saw looked identical to the person
who attempted to rob the bank, just without a disguise. Gibson then
identified Galloway in open court. On cross-examination, Gibson also
1 Alyssa Shumate (“Shumate”), an employee at Home Federal Bank, testified that she also saw the note the suspect handed Gibson, and believed that the note was more of a threat than a demand. She stated that after the man left, she locked the lobby door and read the license plate number to the vehicle she saw the man leave in. 3 admitted that the man never removed any clothing items and that she never
saw his face.
Next, Detective Donald Belanger, Jr. (“Detective Belanger”) of SPD
testified that he investigated the attempted robbery at Home Federal Bank.
Detective Belanger stated that he spoke with Gray, Gibson, and Shumate
about the matter to understand what occurred. Detective Belanger explained
that after he reviewed the surveillance footage and the vehicle from the
photographs and video was discovered, he learned that another officer
located the suspect in the Siegel Suite parking lot, where he then took Gray
and Gibson to identify the suspect. Thereafter, Detective Belanger identified
Galloway as the suspect identified from the parking lot. Detective Belanger
explained that it was common practice to transport witnesses for
identification since the offense occurred shortly after the suspect was
located. He then testified that both Gray and Gibson positively identified
Galloway as the suspect who attempted to rob the bank.
On cross-examination, Detective Belanger admitted that he was aware
that neither Gray nor Gibson saw the suspect’s face. Detective Belanger
stated, however, that there were other distinct features used to identify
Galloway, notably, his body type or “large belly.” Detective Belanger also
admitted that at the time of the identification, Galloway did not have on a
wig, hat, sunglasses, or mask.
Corporal John Madjerick (“Cpl. Madjerick”), a crime scene
investigator for SPD, then testified that he was dispatched to the Siegel
Suites parking lot. He stated that when he arrived, he collected the
recovered items and photographed Galloway’s vehicle. Cpl. Madjerick then
identified that Galloway’s vehicle was a black Saab with a sticker placed 4 over the vehicle’s logo, and a Texas license plate, just barely affixed to the
vehicle so that it was easily removable. Cpl. Madjerick also identified
another Texas license plate found in the door pocket of the passenger seat, a
red and gray hat, a cloth mask that was wedged between the seat and
console, and a pair of black and gray gloves found between the console and
the front passenger seat. Cpl. Madjerick then identified the articles of
clothing officers discovered, including a gray polo with a yellow bear logo
on the front, and a pair of blue jeans, as well as blonde strands of what he
believed to be synthetic hair, that were discovered on the floorboard of the
vehicle.
Cpl. Madjerick then identified the grocery bag and the note from the
bank. He explained that the note was tested for fingerprints, but no prints
were able to be developed from it. On cross-examination, Cpl. Madjerick
testified that he was unaware if any fingerprints were taken from the screws
on the license plate and that he was unaware if a Louisiana license plate was
discovered during a search of Galloway’s vehicle, but he was informed that
the surveillance footage reflected that the vehicle had a Louisiana license
plate. He then admitted that the jeans recovered from this investigation were
common and that anyone could have worn them, that face masks were
common since Covid, and that no wig or sunglasses were found during the
search of the vehicle. Cpl. Madjerick further admitted that the strands of
hair were never tested to verify that it was synthetic hair.
Finally, Detective Melvin Smith (“Detective Smith”) testified that he
and Detective Belanger were dispatched to investigate an attempted robbery.
Detective Smith testified that when he arrived at the bank, he spoke with
Gibson, who identified the suspect as a white male in blue jeans, a polo shirt, 5 a maroon hat, sunglasses, and a black face mask. Detective Smith stated that
Gray informed the suspect he would have to remove his hat and sunglasses,
but rather than complying, handed Gibson a grocery bag and note that
indicated for them to put money in the bag, without dye packs, and wait ten
minutes before calling the police.
Detective Smith explained that he also reviewed the surveillance
footage and the photos Gibson took and learned that the suspect left in a
black Saab. Detective Smith testified that the license plate seen in the
photos was a switched tag, typically issued to trucks. Detective Smith then
noted several distinctive features on the vehicle as seen from the photos
taken from the bank, including tape over the taillights, and an American flag
sticker over the vehicle’s logo. In looking at a photograph of the black Saab
that was discovered at the Siegel Suites parking lot, Detective Smith testified
that the license plate was different, and the American flag sticker appeared
to have been ripped off the vehicle’s logo because a sticky adhesive residue
was left behind. Detective Smith testified that aside from those differences,
the vehicle, nevertheless, appeared to be the same one identified from the
photos taken at the bank. Specifically, Detective Smith stated that it was the
same make and model as the vehicle seen at the bank.
Detective Smith then testified that while at the Siegel Suite parking
lot, he spoke with Galloway and Jacqueline Tune (“Tune”), the owner of the
vehicle and Galloway’s girlfriend. Detective Smith stated that Tune
consented to a search of the vehicle and the motel room Galloway and Tune
stayed in. He explained that after officers searched the room, they
discovered a polo shirt and blue jeans. After he reviewed the note found at
the bank, Detective Smith testified that the handwriting was illegible and 6 appeared to have been written that way on purpose. Detective Smith then
identified Galloway in open court and stated that after the search and witness
identification, Galloway was determined to be the person who attempted to
rob the bank.
On cross-examination, Detective Smith acknowledged that, as seen on
the bank’s surveillance footage, the suspect entered the bank wearing a hat,
wig, face mask, and sunglasses. He also acknowledged that the suspect did
not remove any of those items during the encounter. Detective Smith further
acknowledged that both Gray and Gibson identified Galloway as the suspect
even though Galloway did not have on any of the items the suspect was seen
wearing. Detective Smith then testified that he showed Tune a photo taken
from the surveillance footage and she identified Galloway as the suspect.2
On redirect, Detective Smith clarified that Galloway’s arrest was not made
strictly on witness identification alone.
At the close of testimony, the jury unanimously found Galloway
guilty as charged. On April 27, 2023, Galloway filed a motion for new trial;
however, while the trial court signed the order, it did not indicate whether
the motion was granted or denied. On May 4, 2023, sentencing was held,
wherein the trial court stated in open court that Galloway’s motion was
denied.3 The trial court then reviewed Galloway’s background, including
his personal relationships, education, employment, and criminal history,
which included three DWI’s, a charge of theft, and criminal simulation. The
trial court then stated its considerations of the factors set forth under La. C.
2 We note that no formal objection was made to Detective Smith’s response. 3 Defense counsel indicated that a motion for post-verdict acquittal was also filed and the trial court denied that motion as well. However, a copy of this motion is not in the appellate record. 7 Cr. P. art. 894.1, and sentenced Galloway to three and one-half years at hard
labor with credit for time served. On May 11, 2023, Galloway filed a
motion to reconsider sentence, which was subsequently denied. This appeal
followed.
DISCUSSION
Sufficiency of the Evidence
By his first assignment of error, Galloway argues there was
insufficient evidence presented at trial for the State to prove beyond a
reasonable doubt that he was guilty of the offense in question. Galloway
acknowledges that while no motion to suppress was filed concerning the
lineup procedure and identification, this court should, nevertheless, consider
the manner in which the procedure was conducted. Specifically, Galloway
highlights that when Gray and Gibson were called to identify the suspect,
they were brought to the Siegel Suites parking lot, where they made an
identification from across the parking lot and were not shown any other
suspects.
Galloway further argues that both witnesses described the suspect as
having a large stomach or midsection, and at the time of the robbery, as
wearing dark glasses, a red or burgundy hat, a face mask, and a blonde wig;
however, he notes that he was not wearing any of the described items at the
time the identification was made. He asserts that he was only identified
because he was overweight and by no other physical characteristics.
In addition to the eyewitness identification, Galloway further argues
that the evidence officers seized also failed to establish that he was the
perpetrator. Galloway contends that the blue jeans officers recovered were
regular pants with no identifying features; further, the shirt recovered had a 8 yellow bear logo on it, but neither witness described the shirt the suspect
wore as having an emblem on it. Moreover, Galloway argues that the face
mask officers found in the vehicle was also a common item anyone could
have worn, especially in the wake of COVID-19, and neither the gloves nor
strands of blonde hair were ever submitted for “scientific testing.” Finally,
Galloway argues that the license plate on the vehicle being loose was also
not indicative of his identity as the perpetrator. Galloway asserts that a front
license plate being missing simply indicated that the plate had yet to be
replaced and could have simply been attached poorly. He maintains that his
poor mechanical skills do not equate to guilt, and therefore, his conviction
should be reversed.
The standard of appellate review for a sufficiency of the evidence
claim in a criminal case is whether, after reviewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert denied, 541 U.S.
905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004). The Jackson standard, now
legislatively embodied in La. C. Cr. P. art 821, does not afford the appellate
court with a means to substitute its own appreciation of the evidence for that
of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517;
State v. Steines, 51, 698 (La. App. 2 Cir. 11/15/17), 245 So. 3d 224, writ
denied, 17-2174 (La. 10/8/18), 253 So. 3d 797.
The Jackson standard also applies in cases involving both direct and
circumstantial evidence. An appellate court which reviews the sufficiency
of the evidence in such cases must resolve any conflict in the direct evidence 9 by viewing that evidence in the light most favorable to the prosecution.
When the direct evidence is viewed as such, the facts established by the
direct evidence and inferred from the circumstances established by that
evidence must be sufficient for a rational trier of fact to conclude beyond a
reasonable doubt that the defendant was guilty of every essential element of
the crime. State v. Sutton, 436 So. 2d 471 (La. 1983).
Likewise, if a case rests essentially upon circumstantial evidence, that
evidence must exclude every reasonable hypothesis of innocence. La. R.S.
15:438; see also, State v. Mingo, 51, 647 (La. App. 2 Cir. 9/27/17), 244 So.
3d 629, writ denied, 17-1894 (La. 6/1/18), 243 So. 3d 1064. The appellate
court will review the evidence in the light most favorable to the prosecution
and determine whether an alternative hypothesis is sufficiently reasonable
that a rational juror could not have found proof of guilt beyond a reasonable
doubt. State v. Calloway, 07-2306 (La. 1/21/09), 1 So. 3d 417; State v.
Garner, 45,474 (La. App. 2 Cir. 8/18/10), 47 So. 3d 584, writ not cons., 12-
0062 (La. 4/20/12), 85 So. 3d 1256.
In the absence of any internal contradiction or irreconcilable conflict
with physical evidence, the testimony of the witness, if believed by the trier
of fact, alone, is sufficient support for a requisite factual conclusion. State v.
Elkins, 48,972 (La. App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-
0992 (La. 12/8/14), 152 So. 3d 438; State v. Wiltcher, 41,981 (La. App. 2
Cir. 5/09/07), 956 So. 2d 769. Where there is conflicting testimony
concerning factual matters, the resolution of which depends upon a
determination of the credibility of the witnesses, the matter is one of the
weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App.
2 Cir. 9/18/02), 828 So. 2d 622, writ denied, 02-2595 (La. 6/27/03), 847 So. 10 2d 1255. The appellate court neither assesses the credibility of witnesses nor
reweighs evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
Rather, the reviewing court affords great deference to the jury’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Gilliam, 36,118 (La. App. 2 Cir. 8/30/03), 827 So. 2d 508, writ denied, 02-
3090 (La. 11/14/03), 858 So. 2d 422.
Moreover, in a case where a defendant claims he was not the person
who committed the offense, the Jackson standard requires that the
prosecution negate any reasonable probability of misidentification. State v.
Green, 38, 335 (La. App. 2 Cir. 5/12/04), 873 So. 2d 889, writ denied, 04-
1795 (La. 11/24/04), 888 So. 2d 227; State v. Powell, 27,959 (La. App. 2
Cir. 4/12/96), 677 So. 2d 1008, writ denied, 96-1807 (La. 2/21/97), 688 So.
2d 520. Positive identification by one eyewitness or victim may suffice to
support a conviction. State v. Hughes, 05-0992 (La. 11/29/06), 943 So. 2d
1047; State v. Green, supra.
After viewing the evidence in the light most favorable to the State, we
find that the evidence produced at trial was sufficient to convict Galloway of
the charged offense. Here, Galloway was charged with one count of
attempted simple robbery in violation of La. R.S. 14:27 and 14:65. La. R.S.
14:65 defines simple robbery as either:
(1) The taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.
(2) The taking of anything of value when a person is part of a group of three or more individuals and the person has the intent to take anything of value from a retail establishment that is in the immediate control of a retail employee or employer and there is a reasonable belief that a reasonable person would not intercede because of fear. 11 La. R.S. 14:27(A) further provides:
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
We find that the evidence and testimony presented by both witnesses
and Detective Smith, clearly establishes that Galloway was the person who
attempted to rob Home Federal Bank.
Both Gray and Gibson testified that they interacted with the suspect
and were able to see several key identifying features, including, but not
limited to body type and clothing which they were able to describe to
officers in detail; namely, that the suspect wore a red or burgundy hat, wig,
face mask, jeans, and the color of the suspect’s shirt. Moreover, both Gray
and Gibson identified the suspect shortly after the event occurred and
expressed that they were positive in their identification. We further
highlight that surveillance footage captured the suspect and Detective Smith
testified that Galloway’s girlfriend, Tune, also positively identified him as
the suspect.
Moreover, detectives in this case testified that the identification alone
was not the sole basis for Galloway’s arrest. Specifically, the detectives in
this case highlighted that the suspect fled the scene in a black Saab with a
Louisiana license plate, as identified by both surveillance footage and the
photographs employees took of the vehicle. Detectives also noted that the
vehicle the suspect fled in also had an American flag sticker that covered the
vehicle’s rear emblem. They testified that when the vehicle was located, the
plate had a loosely hanging Texas plate located on the back of the vehicle 12 only, and not the front as required under Texas law. Moreover, the
American flag sticker that had been seen previously was gone, and in its
place was a sticky residue. Further, officers discovered strands of yellow
hair in the vehicle they believed were synthetic and likely came from a wig.
Officers additionally discovered a red or burgundy hat, a face mask, jeans,
and a shirt that matched the description provided by both eyewitnesses.
Accordingly, given the totality of the evidence and testimony
presented in this case, we find that there was sufficient evidence for any
rational trier of fact to find that Galloway was guilty of the offense in
question.
Excessive Sentence
In his final assignment of error, Galloway argues that the imposition
of a three and one-half-year sentence at hard labor, the maximum sentence
for this offense, was excessive under the facts and circumstances of this
case. Galloway asserts that maximum sentences are reserved for the worst
offenders, and he simply does not fall within that category. Specifically,
Galloway argues that his criminal history is minimal as it consists of only
three previous DWI charges from 20 years prior, two theft counts in 2011,
and a misdemeanor charge of criminal simulation in 2020. Galloway notes
that the present offense did not involve a weapon, and involved no force,
intimidation, or threats. Moreover, Galloway highlights that he is “an
educated man in his fifties,” and has worked as a consultant in Florida and
Alabama.
In this case, the maximum sentence for a conviction of simple
robbery is seven years at hard labor, and the maximum sentence for a
13 conviction of attempted simple robbery is three and one-half years.
La. R.S. 14:65; La. R.S. 14:27(D)(3).
The law concerning excessive sentences is well-settled; claims are
reviewed by examining whether the trial court adequately considered the
guidelines established in La. C. Cr. P. art. 894.1, and whether the sentence is
constitutionally excessive. State v. Vanhorn, 52,583 (La. App. 2 Cir.
4/10/19), 268 So. 3d 357, writ denied, 19-00745 (La. 11/19/19), 282 So. 3d
1065. A review of the sentencing guidelines does not require a listing of
every aggravating or mitigating circumstance. Id.
A sentence violates La. Const. art. I, § 20 if it is grossly out of
proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. McKeever,
55,260 (La. App. 2 Cir. 9/27/23), 371 So. 3d 1156. To constitute
an excessive sentence, a reviewing court must find that the penalty is so
grossly disproportionate to the severity of the crime as to shock the sense of
justice or that the sentence makes no reasonable contribution to acceptable
penal goals and, therefore, is nothing more than the needless imposition of
pain and suffering. State v. Griffin, 14-1214 (La. 10/14/15), 180 So. 3d
1262; State v. Efferson, 52,306 (La. App. 2 Cir. 11/14/18), 259 So. 3d
1153, writ denied, 18-2052 (La. 4/15/19), 267 So. 3d 1131.
The trial court has wide discretion in the imposition of sentences
within the statutory limits and such sentences should not be set aside as
excessive in the absence of a manifest abuse of that discretion. State v.
Griffin, supra; State v. Trotter, 54,496 (La. App. 2 Cir. 6/29/22), 342 So. 3d
1116. On review, an appellate court does not determine whether another
14 sentence may have been more appropriate, but whether the trial court abused
its discretion. State v. McKeever, supra.
Here, the trial court fully set forth its considerations of the sentencing
factors set forth under La. C. Cr. P. art. 894.1 and gave an adequate
consideration of Galloway’s personal and criminal history. The trial court
determined, however, that because Galloway’s actions created the possibility
that a security guard could have produced a firearm to stop the attempted
robbery, those present during the offense stood the chance of being injured.
Therefore, a lesser sentence would deprecate the seriousness of his actions.
Moreover, Galloway’s sentence falls within the statutory range for this
offense, and Galloway’s sentence is neither grossly out of proportion to the
severity of the offenses, nor does it shock the sense of justice.
Accordingly, we find that the trial court did not abuse its discretion in
imposing this sentence, and this assignment of error is without merit.
CONCLUSION
For the aforementioned reasons, Galloway’s conviction and sentence
is affirmed.
AFFIRMED.