State of Louisiana v. Hartson Dale Nash

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-293

STATE OF LOUISIANA

VERSUS

HARTSON DALE NASH

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 73973
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar,
Judges.

AFFIRMED.

Honorable Don M. Burkett
District Attorney
Eleventh Judicial District
Ronald D. Brandon
Assistant District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

S. Christie Smith, IV
Smith Advocates, LLP
300 Courthouse Street
P.O. Drawer 1528
Leesville, LA 71496
(337) 239-2244
COUNSEL FOR DEFENDANT/APPELLANT:
Hartson Dale Nash

SAUNDERS, J.

This criminal suit arises from a Defendant’s appeal of a trial court judgment

convicting him of possession of a controlled dangerous substance and sentencing

him to three years hard labor.

FACTS AND PROCEDURAL HISTORY:

Hartson Dale Nash, hereinafter “Defendant,” was a passenger in a vehicle

that was stopped by police in Sabine Parish on July 2, 2014. Police found cash,

drug paraphernalia, and a weapon inside the vehicle. During the booking process at

the Sabine Parish Detention Center, an officer found drugs in a trash can near

Defendant. After being given a Miranda warning, Defendant admitted to the

officers that the drugs were his. The jail’s security cameras had recorded the

incident, but the recordings were not preserved by the facility.

On September 9, 2014, the State filed an amended bill of information

charging Defendant with possession of a Schedule II Controlled Dangerous

Substance, hereinafter “CDS,” in violation of La.R.S. 40:67; illegal possession of a

firearm, in violation of La.R.S. 40:967; illegal carrying of a weapon, in violation of

La.R.S. 14:95; and possession or introduction of contraband into a penal institution,

in violation of La.R.S. 14:402. The third and fourth charges in the bill of

information were dropped.

The parties conducted jury selection on March 30, 2015. The jury began

hearing evidence on April 2, 2015, and ultimately found Defendant guilty of

possession of CDS, but it did not find him guilty on the firearm possession charge.

On July 23, 2015, the trial court sentenced Defendant to three years at hard labor.

Defendant now seeks review of this judgment.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the records, we find there

are no errors patent.

ASSIGNMENTS OF ERROR:

1. Whether the trial court erred in denying the defendant’s motion for mistrial
or other relief on the grounds of double jeopardy when the state prosecuted
the defendant concurrently for possession of a CDS and illegal carrying of a
weapon (LSA-14:95(E)) when the “illegality” element was the possession of
the CDS for which he was also being tried.

2. Whether the trial court was within its broad discretion to decline to allow
testimony from officers regarding what they claim to have observed on a
purported video when that video was made by and solely in the possession
of police, destroyed by (some of) the police, no copies exist, neither the
defendant nor the prosecutor had viewed it, and its lack of production is
wholly attributable to the indifference of the police towards preserving it for
trial.

3. Whether the trial court determined that the police had acted in “bad faith”
under Louisiana Code of Evidence Article 1004 by failing to have any
policy about preserving security video made in the jail, by failing to have
any training to the officers operating the equipment in how to preserve the
video, by failing to inform the officers whom to ask in the chain of
command for help in preserving the video, by intentionally ignoring repeated
requests from others to preserve the video, by failing to take any action
whatsoever to assist in requests to preserve the video or to direct the
requestor to someone within the department who could assist in doing so, by
thwarting the requestor from obtaining information about how to have the
video preserved by informing him it simply was not possible to preserve the
video, by thwarting the efforts of the requestor in securing the video by
informing him it was destroyed, when, in fact, it was not, and by systematic,
apathetic inertia (or intentional disregard) acting to deprive the factfinder of
the evidence in its sole and direct control.

DISCUSSION OF THE MERITS:

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant argues that trying him for both

simple possession of CDS and illegal possession of a weapon for possessing the

same CDS constitutes double jeopardy. We find this assignment is moot, as

Defendant was not convicted of both charges.
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ASSIGNMENTS OF ERROR NO. 2 and NO. 3:

In his second and third assignments of error, Defendant argues that this court

erred by ruling in a pretrial writ that police officers should be allowed to testify

regarding the content of missing security video footage and questioned the

determination of bad faith.

According to said officer testimony, the security footage showed Defendant

putting the drugs at issue into the trash can in which the drugs were later found.

We observe that this court has previously addressed this issue when the State

brought a writ in response to the district court’s ruling on excluding the testimony.

The majority ruled as follows:

WRIT GRANTED AND MADE PEREMPTORY: In excluding the
testimony of those who viewed the video footage, the trial court found
the video footage was not available because of gross negligence. The
jurisprudence requires bad faith in destruction or loss for the evidence
to be excluded. State v. Mitchell, 09-977 (La. 5/22/09), 9 So.3d 130.
The evidence establishes that the video footage is unavailable, and the
trial judge did not make a specific finding of bad faith. La.Code Evid.
Art. 1004(1). The trial court’s judgment excluding the testimony is
hereby reversed, vacated, and set aside. The matter is remanded to the
trial court for proceedings consistent with this opinion.

We agreed that “gross negligence” does not equate to “bad faith.” State v.

Nash, 15-296 (La.App. 3 Cir. 4/1/15)(unpublished opinion). The previous ruling

does not render this court unable to revisit the issue. However, we note from a

prior case, in pertinent part:

As the State observes, this court has previously addressed
Defendant’s argument in a pre-trial writ bearing docket number 03-
1680. As the State correctly notes, the court’s prior review of the issue
does not automatically preclude its review on appeal. The supreme
court has explained:

When this court considers questions of admissibility of
evidence in advance of trial by granting a pretrial application
for supervisory writs (rather than deferring the judgment until
an appeal in the event of conviction), the determination of
admissibility does not absolutely preclude a different decision
on appeal, at which time the issues may have been more
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clearly framed by the evidence adduced at trial. Nevertheless,
judicial efficiency demands that this court accord great
deference to its pretrial decision on admissibility, unless it is
apparent, in light of the subsequent trial record, that the
determination was patently erroneous and produced an unjust
result.

State v. Humphrey, 412 So.2d 507, 523 (La. 1981).

Since Defendant’s counsel-filed brief makes no mention of the
previous writ ruling, it also lacks any argument that said ruling was
patently erroneous or unjust. Similarly, the brief contains no attempt
to show how the evidence adduced at trial might have “more clearly
framed” the issues addressed in the previous writ. Thus, we decline to
revisit this issue on appeal.

State v. Gauthier, 04-1608, p. 8 (La.App. 3 Cir. 11/2/05), 916 So.2d 314, 320, writ

denied, 06-465 (La. 9/22/06), 937 So.2d 378.

We find that Defendant’s current argument is virtually identical to the one

he advanced in his opposition to the State’s pretrial writ. As Defendant has failed

to show that this court’s earlier ruling was patently erroneous or unjust, we find

these assignments of error lack merit.

DISPOSITION:

Defendant, Hartson Dale Nash, raised three assignments of error. For the

foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules– Courts of Appeal, Rule 2–16.3.

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