State v. Khalfani

• Decision Date: 29 October 2008
• Docket Number: No. 43,648-KA.,No. 43,647-KA.,43,647-KA.,43,648-KA.
• Citation: 998 So.2d 756
• Parties: STATE of Louisiana, Appellee v. Mustafaa Kamau KHALFANI, Appellant.
• Court: Court of Appeal of Louisiana — District of US

998 So.2d 756

STATE of Louisiana, Appellee v. Mustafaa Kamau KHALFANI, Appellant.

No. 43,647-KA.

No. 43,648-KA.

Court of Appeal of Louisiana, Second Circuit.

October 29, 2008.

J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.

John Cucci, Jr., Shreveport, for Defendant/Appellant, Mustafaa Kamau Khalfani.

Before BROWN, CARAWAY & PEATROSS, JJ.

PEATROSS, J.

Defendant, Khalfani Mustafaa Kamau,¹ was convicted of Possession of a Schedule II Controlled Dangerous Substance, namely Methamphetamine; Possession of a Schedule I Controlled Dangerous Substance, namely Methylenedioxymethamphetamine (MDMA); and Possession of a Schedule II Controlled Dangerous Substance, namely Cocaine. He was sentenced to 5 years at hard labor for the Possession of Methamphetamine conviction; 10 years at hard labor for the Possession of MDMA conviction; and, for the Possession of Cocaine conviction, 20 years at hard labor with all but 15 years of the sentence suspended and the first 10 years without the benefit of probation, parole or suspension of sentence, 5 years' probation and a $100,000 fine. All sentences are to be served concurrently. Defendant now appeals. For the reasons set forth herein, Defendant's convictions and sentences are affirmed.

FACTS

On the morning of October 15, 2005, Louisiana State Trooper Shane Sears stopped a car driven by Defendant, in which Akintunde Charmez Collins was a passenger, on the side of Interstate 20. Trooper Sears had been assisting another trooper at a separate traffic stop when he witnessed a burgundy Ford Taurus pass them without changing lanes of travel to the lane farthest from the stopped emergency vehicles. The failure to move into the inside lane away from a stopped emergency vehicle, when possible, is a traffic violation of R.S. 32:125(B).

Trooper Sears testified that, since the prior stop was coming to an end, he chose to pursue the burgundy car with the intent of pulling the car over for failure to yield for an emergency vehicle. Trooper Sears followed the vehicle and clocked it with his radar as traveling at 78 miles an hour in a 70-mile an hour speed zone. After stopping the vehicle, Trooper Sears asked the driver, Defendant, to step out of the vehicle.² Trooper Sears explained that the proper procedure during a traffic stop is to speak with drivers behind the stopped car and off the shoulder of the road as a safety precaution from the interstate traffic.

Trooper Sears observed Defendant's behavior to be aggressive: "... [H]e, in a confrontational-type manner, asked me what he was stepping out of the car for." Trooper Sears further described Defendant's behavior as "confrontational. He seemed agitated. He was what we call noncompliant because I asked him to step in—over into the grass several times and he wouldn't do it."

Trooper Sears discovered that the vehicle was a rental car which had been rented to a third party who had named Defendant as a driver of the vehicle. As a result of a driver's license check on both Defendant and Collins, Trooper Sears discovered several names and social security numbers connected to both Defendant and Collins.

When asked by Trooper Sears about their travel plans, Defendant told him that they had been headed to Atlanta, Georgia. By that time, Deputy James McLamb, a Caddo Parish Sheriff's deputy, had arrived on the scene and had begun interviewing Collins. Deputy McLamb had been participating in the prior stop along with Trooper Sears. Deputy McLamb further described Defendant's demeanor as:

I could see the guy was just anxious, a little—kind of flexing his fists, just— there was—there was something there. I didn't hear the conversation between them. I could just tell by eyesight that something wasn't quite right, so I— that's the reason I stayed instead of going back and getting in my car.

* * *

He just—he wasn't quite listening. He would—he would walk back towards the car. He was moving around. He was flexing his fists. Further into the conversation when I was talking to him, he would glance down at my weapon. He just—just—It's not exactly one thing. It's a lot of combinations of things that he was doing.

During his driver's license search, Trooper Sears discovered that Collins had an outstanding warrant in Texas and, at that time, he took Collins into custody and placed him in the back of his patrol car. Trooper Sears returned Defendant's driver's license and vehicle documents to him without issuing him a citation, but continued the traffic stop while waiting on confirmation from Texas that the outstanding warrant for Collins was valid.

While waiting for information on the outstanding warrant, Trooper Sears asked Defendant for consent to search the vehicle. Defendant initially agreed. Deputy McLamb conducted the search of the vehicle and found a screwdriver in the glove box which he thought looked out of place in a rental vehicle. He then retrieved his K-9 from his vehicle and conducted an open-air sniff around Defendant's vehicle. At that point, Defendant protested the search, but Deputy McLamb continued to circle the vehicle with the dog. Deputy McLamb subsequently informed Trooper Sears that the K-9 had alerted to the presence of narcotics in the vehicle and a thorough search was necessary. The K-9 appeared to alert on the trunk and, later on, on the driver's side at the front of the vehicle. Deputy McLamb looked more closely at an area near where the windshield met the vehicle body where the dog had seemed more focused. At that point, he identified an area that looked like a portion of the plastic had been removed and replaced. When he pried the plastic back off, he was able to locate the hiding place of the narcotics.

Trooper Sears described the location where the narcotics were located as:

[T]he narcotics were located in the lower left—what we call the firewall, which is below the windshield, that plastic—piece of plastic that touches the windshield to the motor department [sic] where your windshield wipers are, it was—the plastic had been pried open and the narcotics were bundled up in duct tape and dryer sheets stuffed down in a natural void below the windshield wipers in the firewall.

The officers also found a receipt in the car for a box of Claritin sinus medication and another receipt for a box of Bounce dryer sheets purchased on the same night within five minutes of one another from the same CVS Pharmacy in Humble, Texas. The officers located cocaine and Ecstasy tablets in the firewall of the vehicle.

After the search was conducted and the narcotics had been located, Collins and Defendant were transported back to Troop G where Defendant was interviewed by Trooper Jason Parker. Trooper Parker testified that Defendant's first response to questioning about the narcotics was that he wanted to go home. When Trooper Parker informed him that he would have to go to jail first and asked him if he would like to cooperate, Defendant responded, "You can't help me."

Trooper Parker further testified that he had taken possession of the narcotics once the vehicle and its occupants were transported to Troop G and he maintained custody of them until they were transferred to the Shreveport Field Office. The narcotics were delivered to the Crime Lab on October 17, 2005, by Trooper Parker, who also picked them up from the evidence custodian the day before his testimony on October 25, 2007. Trooper Parker could not testify from personal knowledge who had transferred them from the Crime Lab to the evidence custodian or when that transfer had occurred.

Defendant and Collins were tried together and, after waiving any conflict problems, were represented by the same counsel. They separately appealed. While their appeals were consolidated at this court for purposes of consideration, we issue a separate opinion regarding the appeal of Collins.

Prior to trial, defense counsel filed a motion to suppress seeking to keep any evidence obtained as a result of the traffic stop from being introduced which, in this case, was all the evidence. The trial court denied the motion to suppress. At trial, defense counsel argued that the State failed to establish a proper chain of custody for the narcotics, so they should not be permitted into evidence. The trial court disagreed and found that the evidence should be admitted since it was "more probable than not that these drugs are related to this case."

After the close of evidence and jury deliberation, the jury returned verdicts for both men of Guilty of Possession of a Schedule II Controlled Dangerous Substance, namely over 200 grams of Cocaine; Guilty of Possession of a Schedule II Controlled Dangerous Substance, namely Methamphetamine; Guilty of Possession of a Schedule I Controlled Dangerous Substance, namely Methylenedioxymethamphetamine (MDMA); and Not Guilty of Conspiring to Distribute Schedule I and Schedule II Controlled Dangerous Substances, namely Cocaine, Methamphetamine and Methylenedioxymethamphetamine (MDMA).

Defendant was sentenced to 5 years at hard labor for possession of methamphetamine; 10 years at hard labor for possession of MDMA; and, for possession of cocaine, 20 years at hard labor with all but 15 years of the sentence suspended and the first 10 years without the benefit of probation, parole or suspension of sentence, 5 years' probation and a $100,000 fine. Defendant appeals.

DISCUSSION

Voir Dire

Defendant argues that he was denied a fair trial because the initial screening of the petit jury venire was done outside the presence of Defendant. Defendant filed a motion for mistrial on that basis, which was denied by the trial court.

La. C. Cr. P. art. 783 allows the trial court to excuse a member of the petit jury venire at any time prior to the time he is sworn for a particular trial. The article provides that:

If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court...