Solemekum v State, 2753

• Decision Date: 28 March 2002
• Docket Number: 2753
• Parties: BABATUNDE SOLEMEKUM A/K/A AKANBI BABATUNDE v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

BABATUNDE SOLEMEKUM A/K/A AKANBI BABATUNDE v STATE OF MARYLAND

No. 2753

September Term, 2000

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

Filed: March 28, 2002

HEADNOTE: Babatunde Solemekum a/k/a Akanbi Babatunde v. State of Maryland, No. 2753, September Term, 2000

Evidence - Trial court erroneously approved, in limine, prosecutor's potential impeachment of accused by an inadmissible prior conviction, provided crime was described only as "a felony." Accused testified, acknowledging on direct prior conviction for "a felony." On cross, State elicited the date of the unspecified offense and the length of the suspended sentence imposed. Held: Accused's preemptive introduction in evidence of conviction waived the initial error, but State's further development of circumstances made the court's error reversible.

Murphy, C.J. Rodowsky, Lawrence F. (retired, specially assigned) Getty, James S. (retired, specially assigned) JJ.

Opinion by Rodowsky, J., Murphy, C.J., concurs

Babatunde Solemekum a/k/a Akanbi Babatunde (Solemekum) appeals his criminal conviction. At trial he correctly, but unsuccessfully, asserted on motion in limine that he was not impeachable by a prior conviction. He then testified to the prior conviction, as a matter of trial tactics, thereby raising issues of preservation for appellate review. The State's cross-examination raises an issue of admissibility that requires an analysis proceeding in the opposite direction from the conventional model. We explain.

The victim, Kaboya Brown (Brown), was shot and wounded by a handgun on May 3, 2000, in the club basement of the residence at 4236 Seidel Avenue in the City of Baltimore. Only two persons were present in the basement at the time of the shooting, Solemekum and Brown. Following a trial in January 2001 Solemekum was convicted of first-degree assault, for which he was sentenced to twenty years' imprisonment, and convicted of the use of a handgun in the commission of a crime of violence, for which he was sentenced to ten years, to be served consecutively to the twenty year term.

Some general background facts are not disputed. The club basement scene of the crime is the living area of Charles West (West) in a residential building also occupied by his mother and younger brother. Solemekum, age nineteen at the time of the crime, employed West, age twenty-four at the time of trial, on a daily basis in the former's drug business. Solemekum testified that on the morning of the shooting he and West were in the basement, where they packaged crack cocaine in glassine bags.¹ The two then went to Patapsco Avenue in the Brooklyn area of Baltimore City where they sold, by Solemekum's calculation, approximately seventy $10.00 ("dime") bags of cocaine. Upon their return to the basement at about 4:00 p.m. there were present a friend of West's since childhood, Kenneth Saunders (Saunders), age twenty at the time of trial, and Brown, a lifelong friend of Saunders and age twenty at the time of trial.

Brown testified that some days before the shooting a person whom Brown later learned to be Solemekum had telephoned Brown's home and asked for Saunders. When the caller refused to identify himself Brown hung up. When the caller replaced the call, Brown again hung up.

In the late afternoon of May 3, 2001, shortly after West and Solemekum had returned to the basement, West went to a cupboard, took out an automatic handgun, and handed it to Solemekum. He held the weapon in one hand while he spoke on the telephone, returning telephone calls that had been placed to his pager, while the other three young men watched television. At some point Solemekum, referring to Brown, said that Brown was the person who had been disrespectful to Solemekum on the telephone and that he should pistol whip Brown. A jury could infer that this motivated Saunders to go out on the street and around the corner where he "chilled" for about fifteen minutes. West concurrently realized that he was in need of cigarettes and departed for the local 7-Eleven.

Brown testified that, after he had gone to the bathroom located in the rear of the basement, he returned to the general living area to find that West and Saunders were no longer there. Brown sat down and watched TV. Solemekum, with the gun in his hand, approached Brown and swung the pistol at him, striking Brown in the side of the head. Brown described what occurred next.

"I got up. We started to tumble. We fell on the bed. I had his hand. I had one hand here, and I had one hand holding the hand that had the gun. And then so as it's a twin sized bed, I fell off the bed.

"Once I fell off the bed, he had time to get up, cock the gun back, and shoot me while I was trying to get up."

Brown was hospitalized for fourteen days for treatment of a gunshot wound to the left chest and resulting complications.

Solemekum denied that he knew who Brown was or that Brown was supposed to have disrespected Solemekum. He said that Brown was introduced to Solemekum by Saunders as a customer. Solemekum testified that West had placed the gun that had been taken from the cabinet on a counter in front of the television and that Brown had taken the gun back to the bathroom. When Brown returned to the living area he pointed the gun at Solemekum. Solemekum testified:

"He [Brown] say, I know, I know what you got. He was like, you know what time it is, like that. I was like, what you mean. He was like kick that shit out, like that, that's all he said."²

A struggle ensued during which the gun discharged.

Solemekum was arrested on May 4, 2000. He gave the police a written statement in which he said that he was at his girlfriend's house at the time of the shooting.

At the conclusion of the State's case the court and counsel, for the first time on the record, considered whether Solemekum was impeachable by a 1999 conviction for a crime which the court referred to as assault with intent to murder.³ It is clear that defense counsel previously had directed the court's attention to Fulp v. State, 130 Md. App. 157, 745 A.2d 438 (2000). There this Court said that assault with intent to murder "does not tell us anything about the truth telling propensity of the accused. There is simply no relationship between the disposition to commit such a crime and the disposition to be untruthful." Id. at 167, 745 A.2d at 443. After the trial court had stated its analysis of Fulp, the State suggested an alternative.

"I have always suggested that if you don't want the crime to be named, well, let's say he's been convicted of a felony, and let them know that he has a conviction in his past recently that would bring some question of his credibility to the jury. Just not say what the crime is. At least let them know that he has something in his background that makes him questionable; that he has a reason to lie in this case, not a person they would trust on the street if they knew him, and knew of this conviction."

The court indicated agreement with the State's suggestion, pointing out that it avoided the problem of impeaching with the same type of crime, and it avoided a consideration on the record of the balancing factors outlined in Jackson v. State, 340 Md. 705, 668 A.2d 8 (1995). In response the State said that its "goal is to ask him specifically of what crimes he was convicted of, but I mention[] the felony aspect."

After further colloquy the court said:

"My ruling is, based on everything up to this point, is that if the defendant testifies, the State will be permitted to ask is it not true that in 1999, if that's the year, you were convicted of a felony. He will not be permitted to ask wasn't that felony an attempted murder. He will not be able to ask the question as to the nature of the crime."⁴

In adopting the State's suggestion, the court ran afoul of the holding in Bells v. State, 134 Md. App. 299, 759 A.2d 1149 (2000), which adopted the rule "in the minority of jurisdictions" and held "that sanitized prior convictions are improper for impeachment." Id. at 310, 759 A.2d at 1155.⁵ Defense counsel consulted with his client and, disclaiming an intent to waive, announced that Solemekum would testify.

After giving his version of the critical events, Solemekum, on direct examination, further testified as follows:

"Q: I'm going to show you a statement dated May 4, 2000. Is that your statement?

"A: Yes, it is.

"Q: That's the statement you gave?

"A: Yes.

"[Defense Counsel]: Your Honor, I'm going to offer this as Defendant's Exhibit Number 1, rights form and statement by Mr. Solemekum.

"(Defendant's Exhibit Number 1 rights form, and statement marked and received in evidence).

"BY (DEFENSE COUNSEL):

"Q: Mr. Solemekum

"A: Yes.

"Q: I want you to tell the ladies and gentlemen of the jury what you told the police.

"A: I told the police that I wasn't even there. I told them I ain't had nothing to do with it.

"Q: You told the police you weren't there and you had nothing to do with it?

"A: Yeah.

"Q: It was a lie, wasn't it?

"A: Yes.

"Q: Why did you lie to the police?

"A: Because I was on probation for

"Q: You were on probation because you had a prior conviction for a felony. Isn't that right?

"A: Yes.

"Q: And you were scared?

"A: Yes.

"Q: What were you scared of?

....

"A: Scared they was just going to say I did it anyway, and say it was on purpose or something like that."

On cross-examination Solemekum testified:

"[PROSECUTOR]: Mr. Solemekum, let me first back up to, you say you have been convicted of a felony before. Is that correct?

"A: Yes.

"Q: As a matter of fact, you were found guilty of that felony on December 14th of 1999. Isn't that correct?

"A: I copped out so, yes.

"Q: Excuse me?

"A: Yeah. I copped out so

"Q: Yeah, so that's the right date?

"A: I pled guilty, yes.

"Q: And you stated already that you were on probation right now for that felony?

"A: Yes.

"Q: And it is also true, sir, that you're backing up nine years.

"A: Yes -- eight and...