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State v. Priest

Court of Appeals of Louisiana, Fifth Circuit

February 6, 2019

STATE OF LOUISIANA
v.
MARK PRIEST

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-4724, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Matthew Whitworth

          COUNSEL FOR DEFENDANT/APPELLANT, MARK PRIEST Cynthia K. Meyer

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson

          SUSAN M. CHEHARDY CHIEF JUDGE

         On appeal, defendant challenges the sufficiency of the evidence used to convict him, the trial court's denial of his verbal motion to continue, and the excessiveness of his sentence. For the following reasons, we affirm defendant's conviction, vacate defendant's sentence as unconstitutionally excessive, and remand for resentencing.

         Procedural History

         On August 19, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Mark Priest, with one count of possession of over four hundred grams of methamphetamine, in violation of La. R.S. 40:967(F). Trial commenced on May 14, 2018. At the conclusion of the two-day bench trial, the trial judge found defendant guilty as charged. On May 24, 2018, the trial court sentenced defendant to thirty years imprisonment at hard labor, imposed a fine of $250, 000.00, and granted defendant's motion for appeal.[1]

         Facts

         Detective Kevin Treigle of the Kenner Police Department ("KPD") testified that, in 2016, he was assigned to work with the Drug Enforcement Agency, pursuant to the federal High Intensity Drug Trafficking Area ("HIDTA") program, on a task force investigating narcotics trafficking in Texas and Louisiana. Based on information obtained from a confidential informant that was corroborated through further surveillance, the task force determined that it was highly probable that Mark Priest and two other individuals were transporting a large quantity of methamphetamine through Jefferson Parish on June 27 and/or June 28, 2016.

         On the evening of June 27, 2016, Detective Treigle observed Mark Priest and two men, later identified as Gabriel De La Cruz and David Deleon, meet a man known only as "Richard"[2] at the Laketown Bar and Grill in Kenner. Detective Treigle witnessed De La Cruz speaking to the unknown man as Priest and Deleon stood nearby. Priest, Deleon, and De La Cruz left in a vehicle together.[3]

         Later that night, the task force observed Priest leaving a hotel near the Treasure Chest Casino and entering the casino with Deleon. By that time, officers had learned that there was an outstanding arrest warrant for Priest out of Harris County, Texas. Detective Treigle, working with Detective Keenan Jackson of the KPD located Priest, escorted Priest and Deleon to the casino's security office, and arrested Priest (hereinafter "defendant") on the outstanding warrant.

         Pursuant to a search incident to defendant's lawful arrest, [4] the officers seized three black, cylindrical objects, wrapped in electrical tape, from the front waistband of defendant's underpants and a small plastic bag from defendant's sock. Defendant was advised of his rights and elected not to speak to officers at that time.

         After defendant's arrest, Detective Jackson took custody of the black 'cylinders' and the plastic bag. Upon removing the electrical tape from each cylinder, the officers discovered a cellophane wrapper containing almost six hundred grams of crystalline material. Further, the plastic bag recovered from defendant's sock contained about four grams of crystalline material. The crystalline substance found in each package field-tested positive for methamphetamine.

         At trial, Detective Jackson identified his handwriting on the seal of the evidence bag containing the methamphetamine recovered from defendant's person and the seal of the evidence bag containing the cellophane packaging and black electrical tape from each cylinder. Further, he identified his signature on the seal of the evidence bag containing the small plastic bag recovered from defendant's sock. Detective Jackson testified that, after he logged the evidence, he placed it in an evidence safe until he transferred it to the evidence custodian.

         Michael Cole, a forensic chemist for the Jefferson Parish Sheriff's Office ("JPSO") Crime Lab who was accepted as an expert in forensic analysis of controlled dangerous substances, testified that he analyzed the crystalline substance seized from defendant and concluded that it contained methamphetamine. Mr. Cole further testified that the crystalline substance found in the three cylindrical objects seized from defendant's underpants had a total net weight of approximately five hundred eight-two grams, and that the methamphetamine found in defendant's sock had a total gross weight of approximately three grams.[5]

         At trial, after waiving his Fifth Amendment right to remain silent, defendant testified that he met De La Cruz through a friend while he was living in Texas.[6]According to defendant, De La Cruz, when they first met, threatened defendant with a gun. Defendant testified that, on June 26, 2016, defendant agreed, under duress, to accompany De La Cruz from Texas to New Orleans to show him around the city. During the ride from Texas to New Orleans, defendant claimed he told De La Cruz that he did not want to be part of any drug deal. Once in Louisiana, the men traveled to Slidell where they met up with Deleon.

         According to defendant, the next day, the trio met a fourth man, named Richard, at a bar and grill. Defendant then left with Deleon in a truck driven by De La Cruz, who pulled over into a parking lot and gave defendant two packages wrapped in electrical tape, which he placed in his pants, and a third package which he placed in his sock. Defendant testified that he was nervous and told the men he did not want anything "to do with this," but did as he was instructed.

         Defendant recalled that, later that evening, he and Deleon went into the bar at the Treasure Chest Casino. Defendant noted that Deleon was on his phone the entire time they were in the casino. Defendant testified that he "knew there was something odd" so he dialed 9-1-1 and then hung up. He further stated that he "knew the cops were following" them because the same taxicab that he observed at the bar and grill, later stopped for Deleon and him at a Wendy's restaurant. Defendant testified that, after his arrest, he discovered evidence that Deleon was working for law enforcement.

         Discussion

         When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id.; See also State v. Nguyen, 05-569 (La.App. 5 Cir. 2/3/06), 924 So.2d 258, 262.

         Thus, we will address the sufficiency of the evidence, which defendant raises in his second assignment of error before his other assignments. Specifically, defendant argues that the evidence is insufficient to support his conviction because the State failed to establish the chain of custody regarding the methamphetamine allegedly recovered from his person. He maintains the documents from the JPSO Crime Lab show the evidence was received from ...


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