U.S. v. Solomon

Decision Date01 March 2005
Docket NumberNo. 04-5063.,04-5063.
Citation399 F.3d 1231
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Shawn Tywan SOLOMON, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Kevin D. Adams, Tulsa, OK, for Appellant.

Leena Alam, Assistant United States Attorney (David O'Meilia, United States Attorney, Northern District of Oklahoma with her on the brief) Tulsa, OK, for Appellee.

Before O'BRIEN, HOLLOWAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

A jury in the Northern District of Oklahoma found Shawn Tywan Solomon guilty on one count each for possession of cocaine with intent to distribute under 21 U.S.C. § 841(a) and (b) (Supp.2004), possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c) (2000), and felon in possession of a firearm under 18 U.S.C. §§ 922(g) (2000) and 924(a) (Supp.2004). Solomon argues on appeal that his constitutional rights were violated in three ways: (1) the admission of hearsay statements at trial violated his Sixth Amendment right to confrontation; (2) the exclusion of certain photographs of injuries he received in an unrelated assault denied him the due process and compulsory process right to present a defense; and (3) the combination of the above-mentioned errors denied him a fundamentally fair trial.

Finding no constitutional violations, we AFFIRM.


On March 10, 2003, Officer Dianna Liedorff of the Tulsa Police Department noticed a black Lexus parked on the wrong side of the road, facing oncoming traffic. A female sat in the driver's seat. Shawn Tywan Solomon came out of a nearby house and entered the passenger side of the car, which then departed. Officer Liedorff followed the Lexus and, after several blocks, initiated a traffic stop because the Lexus was exceeding the posted speed limit. After stopping the Lexus, Officer Liedorff approached the passenger side of the vehicle where Solomon was seated. Solomon would not make eye contact, was breathing rapidly, and seemed "nervous."

Officer Liedorff obtained the female's driver's license and returned to her patrol car. While in her patrol car, Officer Liedorff noticed that Solomon was repeatedly bending and moving inside the car. Using her speaker, she instructed both passengers to place their hands on the roof of the car. Although initially complying with Officer Liedorff's instructions, Solomon began dropping down his right hand out of sight. Officer Liedorff repeated her instructions three times, and each time Solomon again dropped his hand. Concerned by Solomon's movements, Officer Liedorff called for backup, and Officer Jake Kelley arrived shortly thereafter.

Officers Liedorff and Kelley approached the passenger side of the car together and asked Solomon to step out. Solomon did not immediately comply, and so, concerned for her safety, Officer Liedorff placed handcuffs on Solomon while he remained seated in the car. Solomon was then helped from the car and patted down by Officer Kelley, who found a loaded semiautomatic handgun in Solomon's waistband and a piece of crack cocaine that fell from his pant leg. Officer Kelley also found $278 on Solomon's person spread out among three different pockets.

While Officer Kelley detained Solomon, Officer Liedorff escorted the driver of the Lexus to the patrol car for questioning. She asked the driver whether any of the drugs belonged to her, and the driver said "no." Officer Liedorff also asked whether there was any other contraband in the car, and the driver "indicated that there was a blue tin [in the car]." R.O.A., VI at 39. Officer Liedorff relayed this information to Officer Kelley, who in turn located the blue tin in the door pocket on the passenger side of the Lexus. Inside the blue tin was over four grams of crack cocaine and an Exacto knife. No other drug paraphernalia was found in the car or on Solomon's person.

At trial, the government used testimony by Harold Adair, a sergeant assigned to the Special Investigations Division, to establish that Solomon possessed the crack cocaine for the purpose of distribution rather than personal use. Adair contrasted indicia of personal drug use with indicia of distribution. Specifically, he testified that simple users of crack cocaine do not carry more than one or two "rocks" at a given time, while dealers typically carry approximately five grams. While users are typically found with drug paraphernalia such as glass or metal pipes, dealers are not. While users typically do not carry cash, dealers typically have significant amounts, in small bills, and spread around in multiple pockets. While users rarely carry weapons, dealers almost always have weapons. And finally, Adair testified that dealers frequently store their cocaine base with a razor blade or Exacto knife which allows them to cut the rocks into smaller pieces for distribution.

Another set of facts that bears on our disposition of this case occurred approximately one week prior to Solomon's traffic encounter with Officers Liedorff and Kelley. On the morning of March 4, 2003, Solomon was assaulted while at a night club in Tulsa. Following the assault, friends escorted Solomon to his grandmother's house where he was living. Solomon's grandmother testified at trial that "he had lacerations throughout his head, some were bleeding very badly" and that "he had a huge hematoma in the forehead around the size of my fist." R.O.A., VII at 169. In an attempt to establish that Solomon carried the firearm because he feared for his safety, and not because he was involved in drug distribution, at trial Solomon's counsel sought to introduce photographs of Solomon's injuries that were taken shortly after the assault. The district court, finding the photographs not relevant to the charged crimes, ruled that the photographs were inadmissible.


On appeal, Solomon does not dispute that he was a felon in possession of a firearm under 18 U.S.C. §§ 922(g) and 924(a). He does, however, challenge his convictions under 21 U.S.C. § 841(a) and (b) (possession of cocaine with intent to distribute) and 18 U.S.C. § 924(c) (possession of a firearm in furtherance of a drug trafficking crime). Solomon asks for a new trial on these counts due to the alleged constitutional violations discussed below.

A. Confrontation Clause and Hearsay Evidence

Solomon first contends that the district court improperly admitted hearsay statements by Officer Liedorff in violation of the Confrontation Clause of the Sixth Amendment.1 On direct examination, Officer Liedorff described the conversation she had with the driver while seated in the patrol car. Solomon ascribes error to the following colloquy:

Q: And when you asked the passenger to sit in your car, did you have a conversation with her?

A: Yes, ...

Q: And what was the purpose of that conversation?

A: To determine whether she was involved, how she knew him, if she was involved with drugs, and to cut her loose if she wasn't, to get rid of her and her traffic violation so I could deal with Mr. Solomon.

Q: What specifically did you ask her?

A: I asked her if any of the drugs were hers. She said no. I asked her if —

Defense counsel: Objection, Your Honor.

The Court: Overruled. Go ahead.

Q: What did you ask her specifically after that?

A: I asked her if there was anything else of his in the vehicle. And she indicated that there was a blue tin.

Defense counsel: Your Honor, once again, we are objecting to anything ... that the driver said as hearsay.

The Court: Right for now, we'll just wait for it to be linked up later. Go ahead.

R.O.A., VI at 39.

The government argues that the above-quoted language was not hearsay because it was offered for the limited purpose of explaining why Officer Kelley searched the Lexus. Aple. Op. Br. at 8. We disagree. Having located a firearm and a piece of crack cocaine on Solomon's person, Officer Kelley had probable cause to search the Lexus for additional contraband. The record shows, in fact, that Officer Kelley had already started to search the Lexus before Officer Liedorff alerted him to the existence of the blue tin. R.O.A., VI at 38. Thus, in our view, Officer Liedorff's statements constituted inadmissible hearsay under the Federal Rules of Evidence. See Fed.R.Evid. 801(c) (hearsay is an out-of-court statement offered to prove the truth of the matter asserted).

The Supreme Court has recently held that the Confrontation Clause prohibits such testimonial out-of-court statements unless the declarant is shown to be unavailable and the defendant had an earlier opportunity to cross-examine the declarant.2 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Testimonial hearsay includes "custodial examinations" and "[s]tatements taken by police officers in the course of interrogations." Id. at 1364. Here, there was no showing by the government that the driver was unavailable, nor did Solomon have a prior opportunity to cross-examine the driver. Thus, under Crawford, the district court should not have admitted the driver's out-of-court statements.

Nevertheless, Solomon did not object on Sixth Amendment grounds, and "where a Confrontation Clause objection is not explicitly made below we will not address the constitutional issue in the absence of a conclusion that it was plain error for the district court to fail to raise the constitutional issue sua sponte." United States v. Perez, 989 F.2d 1574, 1582 (10th Cir.1993) (en banc). To meet this plain error standard, Solomon must show that the constitutional error (1) was obvious, and (2) affected substantial rights. Id. at 1583 (citations and quotations omitted). This standard does not apply, however, where the defendant has failed to argue on appeal that the district court committed plain error in not raising the constitutional issue sua sponte, as Solomon has failed to do here. United States v. LaHue, 261 F.3d 993,...

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