State v. Mendez

140 So. 3d 284, 13 La.App. 5 Cir. 909, 2014 WL 1622371, 2014 La. App. LEXIS 1084
CourtLouisiana Court of Appeal
DecidedApril 23, 2014
DocketNo. 13-KA-909
StatusPublished
Cited by5 cases

This text of 140 So. 3d 284 (State v. Mendez) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mendez, 140 So. 3d 284, 13 La.App. 5 Cir. 909, 2014 WL 1622371, 2014 La. App. LEXIS 1084 (La. Ct. App. 2014).

Opinion

ROBERT A. CHAISSON, Judge.

lain this appeal, defendant, Jose Mendez, seeks review of his convictions and sentences for possession of cocaine and possession of a legend drug. For the reasons that follow, we affirm defendant’s conviction for possession of cocaine and his conviction and sentence for possession of a legend drug. With regard to defendant’s enhanced sentence on his possession of cocaine conviction, we amend the sentence to delete the fine and affirm his twenty-five year sentence as amended. Additionally, we grant appellate counsel’s motion to withdraw as attorney of record.

PROCEDURAL HISTORY

On January 17, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of twenty-eight grams or more, but less than two hundred grams, of cocaine, in violation of LSA-R.S. 40:967(F) (count one), and possession of a legend drug without a prescription, in violation of 13LSA-R.S. 40:1238.1 (count two). At his arraignment, defendant pled not guilty. The matter proceeded to trial before a twelve-person jury on March 12 and 13, 2013. After considering the evidence presented, the jury found defendant guilty as charged on both counts.

The trial court sentenced defendant, on count one, to twenty years imprisonment at hard labor with a fine of $50,000.00, and, on count two, to five years imprisonment at hard labor. The State thereafter filed a [287]*287multiple offender, bill of information, pursuant to the provisions of LSA-R.S. 15:529.1, alleging that defendant was a second felony offender. After defendant admitted to the allegations in the multiple bill, the court vacated the original sentence on count one and imposed an enhanced sentence of twenty-five years imprisonment at hard labor. The trial court ordered this sentence to be served concurrently with defendant’s sentence on count two and consecutively to defendant’s parole violation time. The court also reimposed defendant’s fine of $50,000.00. Defendant now appeals.

FACTS

In November of 2011, Detectives Julio Alvarado and Donald Clogher of the Jefferson Parish Sheriffs Office were participating in a narcotics investigation of defendant. The officers conducted a three-day surveillance, during which they determined defendant resided on 17th Street in Gretna and drove a black Dodge Ram pickup truck, which was registered in his name. Over these three days, the officers observed defendant driving the truck by himself, except for one occasion in which they observed a female passenger with him. This female passenger was determined to be defendant’s girlfriend, Toni Stein.1

| ⅜At the conclusion of this surveillance, search warrants were obtained for defendant’s residence and vehicle. The officers then conducted another period of surveillance over eight days. On the eighth day of this surveillance, December 9, 2011, the officers observed defendant leave his residence on 17th Street in his black pickup truck and proceed to a residence located at 1715 Huey P. Long Avenue in Gretna. Defendant entered this residence and exited five or ten minutes later. He proceeded up the street to a closed gas station at 1624 Huey P. Long Avenue. He entered the gas station empty-handed and exited two minutes later with a white package. From here, defendant returned to the residence at 1715 Huey P. Long Avenue and exited after five minutes. He got back into his vehicle, drove onto the elevated West Bank Expressway, and proceeded across the river into Metairie. Based on their belief that defendant was gathering and transporting illegal narcotics, the officers initiated a traffic stop of defendant on Interstate 10 near Clearview Parkway in order to execute the search warrant that had been issued for his vehicle.

Upon making contact with defendant, Detective Alvarado observed him to be visibly nervous. The detective informed defendant of the narcotics investigation and that he had a search warrant for his vehicle. After advising defendant of his Mirandoi2 rights in both English and in Spanish, Detective Alvarado asked defendant where he had been that day, to which defendant replied that he had only been at his residence. The detective knew this to be false based upon the surveillance of defendant earlier that day. The detective inquired as to where defendant was going. Defendant stated that he was going to his son’s house, but was unable to provide an address. Defendant was then handcuffed and detained in the police vehicle.

|SA search of the vehicle turned up 56.9 grams of cocaine,3 16 Viagra pills, three [288]*288Boost Motóle cell phones,4 and several loose keys. A subsequent search of defendant’s person revealed approximately $1,600.00 in cash. Defendant did not deny that the cocaine or the Viagra were his; nor did he have, or claim to have, a prescription for the Viagra.

While Detective Alvarado transported defendant to the detective bureau, Detective Clogher participated in the effort to locate defendant’s “stash” house. Detective Clogher explained that “more elaborate” narcotics dealers, in an effort to separate their narcotics dealings from their personal lives, store, or “stash,” narcotics and proceeds therefrom in a separate location. Detective Clogher proceeded to the gas station at 1624 Huey P. Long Avenue where defendant was seen earlier that day. Upon the officers’ arrival, they were approached by Kenneth Yokum, who identified himself as the owner of the property. Detective Clogher obtained consent from Mr. Yokum to search the property, but no narcotics were found.

The officers then proceeded to defendant’s residence on 17th Street and executed the search warrant they had previously obtained. No contraband was found at defendant’s residence. While there, the officers also encountered and questioned Toni Stein, who initially provided the officers with several false names. Ms. Stein told the officers that defendant dealt cocaine and informed the officers of where he hid cocaine in his truck. In addition, Ms. Stein informed the officers that defendant stored cocaine in a black lockbox which he kept at a residence located at 1715 Huey P. Long Avenue.

|fiAs a result of the information obtained from Ms. Stein, the officers went to 1715 Huey P. Long Avenue, where Detective Clogher again encountered Mr. Yokum, who identified himself as a resident of the property. The detective obtained consent to search the residence, which turned up nothing. The officers also searched the backyard and discovered a black lockbox hidden under a deck by an above-ground pool. Utilizing a key found in defendant’s possession, the officers opened the lockbox to reveal approximately 69 grams of cocaine,5 $1,263.00 in cash, and Louisiana brake tags.

Following the seizure of these items, Mr. Yokum was transported to the detective bureau where, with a rights of arres-tee form, he was advised of his Miranda rights. Mr. Yokum indicated that he understood his rights, waived them, and provided a recorded statement. In his statement, Mr. Yokum acknowledged that he allowed defendant to store the lockbox at his house but explained that he thought defendant only stored money in it. Further, Mr. Yokum asserted that defendant was at his house earlier that day and walked into the backyard. Mr. Yokum also admitted that he had seen defendant in possession of cocaine in the past. Mr. Yokum was subsequently placed under arrest and charged with possession of cocaine.

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Related

Mendez v. McCain
E.D. Louisiana, 2021
State v. Payne
220 So. 3d 889 (Louisiana Court of Appeal, 2017)
State v. Camp
215 So. 3d 464 (Louisiana Court of Appeal, 2017)
State v. LeBlanc
165 So. 3d 1022 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
140 So. 3d 284, 13 La.App. 5 Cir. 909, 2014 WL 1622371, 2014 La. App. LEXIS 1084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mendez-lactapp-2014.