## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 1 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-5063 SHAWN TYWAN SOLOMON,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. NO. 03-CR-78-H)

Kevin D. Adams, Tulsa, Oklahoma, for Appellant. Leena Alam, Assistant United States Attorney (DavidO’Meilia, United States Attorney, Northern District of Oklahoma, with her o n the brief) Tulsa, Oklahoma, for Appellee.

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

TYMKOVICH , Circuit Judge.

A jury in the Northern District of Oklahoma found S hawn 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), possessionof a firearm in furtherance of-2-

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 9 24(a) (Supp. 2004). Solomon argues on appeal that his constitutional rights wer e violated in three ways: (1) the admission of hearsay statements at trial violated h is Sixth Amendment right to confrontation; (2) the exclusion of certain photogr aphs 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 a bove-mentioned errors denied him a fundamentally fair trial. Finding no constitutional violations, we AFFIRM.
I. BACKGROUND On March 10, 2003, Officer Dianna Liedorff of the T ulsa Police Department noticed a black Lexus parked on the wron g 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 sid e 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 e ye contact, was breathing rapidly, and seemed “nervous.”-3-

Officer Liedorff obtained the female’s driver’s lic ense and returned to her patrol car. While in her patrol car, Officer Liedo rff noticed that Solomon was repeatedly bending and moving inside the car. Usin g her speaker, she instructed both passengers to place their hands on the roof of the car. Although initially complying with Officer Liedorff’s instructions, Sol omon began dropping down his right hand out of sight. Officer Liedorff repe ated her instructions three times, and each time Solomon again dropped his hand. Conc erned by Solomon’s movements, Officer Liedorff called for backup, and Officer Jake Kelley arrived shortly thereafter. Officers Liedorff and Kelley approached the passeng er side of the car together and asked Solomon to step out. Solomon di d not immediately comply, and so, concerned for her safety, Officer Liedorff placed handcuffs on Solomon while he remained seated in the car. Solomon was t hen helped from the car and patted down by Officer Kelley, who found a loaded s emiautomatic handgun in Solomon’s waistband and a piece of crack cocaine th at 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 Lied orff escorted the driver of the Lexus to the patrol car for questioni ng. She asked the driver whether any of the drugs belonged to her, and the d river said “no.” Officer-4-

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 knif e. No other drug paraphernalia was found in the car or on Solomon’s person. At trial, the government used testimony by Harold A dair, 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 cra ck 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 d rug paraphernalia such as glass or metal pipes, dealers are not. While users typic ally 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 frequentl y store their cocaine base with a razor blade or Exacto knife which allows them to cu t the rocks into smaller pieces for distribution.-5-

Another set of facts that bears on our disposition of this case occurred approximately one week prior to Solomon’s traffic e ncounter with Officers Liedorff and Kelley. On the morning of March 4, 20 03, Solomon was assaulted while at a night club in Tulsa. Following the assa ult, friends escorted Solomon to his grandmother’s house where he was living. Solom on’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 ar ound 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 h e was involved in drug distribution, at trial Solomon’s counsel sought to introduce photographs of Solomon’s injuries that were taken shortly after th e assault. The district court, finding the photographs not relevant to the charged crimes, ruled that the photographs were inadmissible.
II. ANALYSIS On appeal, Solomon does not dispute that he was a f elon in possession of a firearm under 18 U.S.C. §§ 922(g) and 924(a). He d oes, however, challenge his convictions under 21 U.S.C. § 841(a) and (b) (posse ssion of cocaine with intent to distribute) and 18 U.S.C. § 924(c) (possession of afirearm in furtherance of a drug trafficking crime). Solomon asks for a new tr ial on these counts due to the alleged constitutional violations discussed below.1 “In all criminal prosecutions, the accused shall e njoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall hav e been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the A ssistance of Counsel for his defence.” U.S. Const. amend. VI (emphasis added). -6- A. Confrontation Clause and Hearsay Evidence Solomon first contends that the district court impr operly 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 i n the patrol car. Solomon ascribes error to the following colloquy: Q: And when you asked the passenger to sit in your c ar, 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 kn ew him, if she was involved with drugs, and to cut her loose if sh e wasn’t, to get rid of her and her traffic violation so I could deal wi th 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.-7-

Q: What did you ask her specifically after that?
A: I asked her if there was anything else of his in th e vehicle. And she indicated that there was a blue tin

. Defense counsel: Your Honor, once again, we are obje cting

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 languag e was not hearsay because it was offered for the limited purpose of e xplaining why Officer Kelley searched the Lexus. Aple. Op. Br. at 8. We disagr ee. Having located a firearm and a piece of crack cocaine on Solomon’s person, O fficer Kelley had probable cause to search the Lexus for additional contraband . The record shows, in fact, that Officer Kelley had already started to search t he 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 inadmissable hearsay under the Federal Rules of Evidence. See Fed. R. Evid. 801(c) (hearsay is an out-of-court s tatement offered to prove the truth of the matter asserted). The Supreme Court has recently held that the Confro ntation Clause prohibits such testimonial out-of-court statements unless the declarant is shown to be unavailable and the defendant had an earlier opp ortunity to cross-examine the2 The Crawford decision marks a fundamental shift in the Supreme Court’s Confrontation Clause jurisprudence. Under the pre -Crawford rule, a criminal defendant’s right to confront a witness did not barthe admission of an unavailable witness’s statements as long as those s tatements bore “adequate indicia of reliability,” a test met when the eviden ce either fell within a “firmly rooted hearsay exception” or bore “particularized g uarantees of trustworthiness.” Ohio v. Roberts , 448 U.S. 56, 66 (1980). Crawford was decided on March 8, 2004, approximately two months after Solomon’s Janu ary 2004 trial. Nevertheless, Crawford applies to our analysis because Solomon’s case is on direct review. Griffith v. Kentucky , 479 U.S. 314, 328 (1987) (new rules regarding the conduct of criminal prosecutions are to be applied retroactively to all cases pending on direct review). -8- declarant. 2 Crawford v. Washington , —U.S.—, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004). Testimonial hearsay includes “custodial ex aminations” 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 wa s unavailable, nor did Solomon have a prior opportunity to cross-examine the driver. Thus, under Crawford, the district court should not have admitted the d river’s out-of-court

statements. Nevertheless, Solomon did not object on Sixth Amend ment grounds, and “where a Confrontation Clause objection is not expl icitly 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 c onstitutional 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 constitutionalerror (1) was-9-

obvious, and (2) affected substantial rights. Id. at 1583 (citations and quotations omitted). This standard does not apply, however, w here the defendant has failed to argue on appeal that the district court committe d 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, 1009 (10th Cir. 2001). We therefor e deem the issue waived. In the absence of plain error, we are left to revie w only the hearsay objection, which we review under the nonconstitutio nal harmless error standard.
Perez , 989 F.2d at 1582. A nonconstitutional harmless e rror “is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect.” LaHue , 261 F.3d at 1009 (citation and quotation omitted); see also Kotteakos v. United States , 328 U.S. 750, 765 (1946). Thus, where there is an abundance of evide nce regarding the defendant’s guilt, the nonconstitutional error will be deemed h armless. See, e.g., United States v. Jefferson , 925 F.2d 1242, 1255 (10th Cir. 1991). Solomon contends that admission of the driver’s out -of-court statements was not harmless. He argues that a central issue at trial was whether Solomon possessed the firearm “in furtherance of” a drug tr afficking crime, as required for conviction under 18 U.S.C. § 924(c), and whether he “intended to distribute” the crack cocaine found in his possession, as required for conviction under 21 U.S.C.-10-

§ 841(a). Solomon argues that without the driver’s statements, the government could not tie him to the blue tin and its contents, and, in fact, “a reasonable inference could be drawn that the [blue tin] belong ed to the owner of the Lexus and that she had given Mr. Solomon the crack that h e possessed.” Aplt. Op. Br. at 14. Having reviewed the evidence in the record, we disagree. Even without the driver’s statements, there was amp le evidence tying Solomon to the blue tin: Solomon appeared nervous when pulled over; Officer Liedorff saw him dipping his hands as if he was hid ing something; he continued to dip his hands even after Officer Liedorff instru cted him three times to place them on the roof of the car; Officer Kelley found t he blue tin in the passenger side door pocket closest to Solomon; and a piece of crack cocaine matching the contents of the blue tin fell from his pants. In a ddition, the jury heard evidence that Solomon was carrying a loaded handgun, had lar ge sums of cash distributed among several pockets, and that no other drug parap hernalia was found in the car or on Solomon’s person—all factors identified by th e government’s expert witness as indicia of drug distribution rather thandrug use. Thus, because there was an abundance of evidence ot her than the driver’s out-of-court statements from which a jury could hav e reached the conclusion that the blue tin belonged to Solomon, we find that the admission of the driver’s statements into evidence was harmless.-11-

B. Right to Present a Defense Solomon next argues that the photographs taken afte r an assault were relevant to his intent in possessing the firearm fo und by Officer Kelley during the pat down. According to Solomon, by viewing the pho tographs of his injuries, a jury could reasonably conclude that he was still su ffering the psychological effects of the assault and that his intent in carry ing the firearm was therefore not to further a drug trafficking crime, see 18 U.S.C. § 924(c), but rather to provide protection in the event his attackers returned. Th e district court’s exclusion of the photographs, according to Solomon, denied him the r ight to present a defense. The district court has broad discretion in determin ing the admissibility of evidence. United States v. Bautista , 145 F.3d 1140, 1151 (10th Cir. 1998). We therefore review a district court’s decision to exc lude evidence for abuse of discretion. United States v. Ramone , 218 F.3d 1229, 1234 (10th Cir. 2000). The question of whether a constitutional violation has occurred is reviewed de novo. Id.; see also United States v. Wooten , 377 F.3d 1134, 1141 (10th Cir. 2004); United States v. Powell , 226 F.3d 1181, 1198 (10th Cir. 2000). Whether the exclusion of the photographs denied Sol omon the right to present a defense implicates important constitution al guarantees. See Taylor v. Illinois , 484 U.S. 400, 408 (1988) (“Few rights are more fu ndamental than that of an accused to present witnesses in his own defense. ”) (citation omitted). The-12-

right to present a defense arises under the Fifth a nd Fourteenth Amendment right to due process and the Sixth Amendment right to compulsory process. Richmond v. Embry , 122 F.3d 866, 871 (10th Cir. 1997). As we have f requently stated, however, the right to present a defense is not with out limits. See, e.g., United States v. Martinez-Morel , 118 F.3d 710, 715 (10th Cir. 1997). The defendan t’s presentation of evidence is constrained by the twin prongs of relevancy and materiality. Simply stated, a criminal defendant d oes not have a constitutional right to present evidence that is not relevant and not material to his defense. See id. (citing Washington v. Texas , 388 U.S. 14, 16 (1967); Roviaro v. United States , 353 U.S. 53, 63 (1957); United States v. Begay , 937 F.2d 515, 523 (10th Cir. 1991)). Furthermore, in presenting evidence the defendant m ust “comply with established rules of evidence and procedure . . . t o assure both fairness and reliability in the ascertainment of guilt and innoc ence.” Richmond, 122 F.3d at 871–72 (quoting Chambers v. Mississippi , 410 U.S. 284, 302 (1973)). While the trial court “may not apply a rule of evidence mecha nistically to defeat the ends of justice, in appropriate circumstances, the defendan t’s right to present relevant testimony may ‘bow to accommodate other legitimate interests in the criminal trial process.’” Id. at 872 (quoting Michigan v. Lucas , 500 U.S. 145, 149 (1991)). In addition, the defendant must show that the exclu sion of evidence rendered his-13-

trial fundamentally unfair, i.e., that the exclusio n of evidence “fatally infected the trial” and “necessarily prevent[ed] a fair trial.” Id. (quoting United States v. Valenzuela-Bernal , 458 U.S. 858, 872 (1982)). “It is the materiality of the excluded evidence to the presentation of the defens e that determines whether a petitioner has been deprived of a fundamentally fai r trial.” Maes v. Thomas , 46 F.3d 979, 987 (10th Cir. 1995). During a bench conference, Solomon’s counsel explai ned that he intended to introduce the photographs as evidence of Solomon ’s state of mind. The court, however, found that defense witnesses had already e stablished that Solomon had been seriously injured during the assault, and ther efore the addition of the photographs was merely cumulative evidence not prob ative to the elements of the charged offenses. R.O.A., VII at 173–74. In short , having allowed testimony of the assault that went to Solomon’s state of mind, t he court declined to admit the photographs: “We’ve established the degree of the beating for what you’re talking about. Now we’re talking about the play-by -play.” Id. at 174. Having reviewed the trial transcript, we find that the district court did not abuse its discretion in excluding the photographs. Although evidence of the assault was somewhat relevant to Solomon’s state of mind, the photographs themselves were merely cumulative of live-witness t estimony that had already established Solomon had been assaulted and remainedfearful of another attack.3 As noted, in order for Solomon to prevail on his c onstitutional claim, he

must show that the exclusion of the photographs ren dered his trial fundamentally unfair. Richmond, 122 F.3d at 872; Young , 383 F.3d at 1238. Because we have held that the photographs were not material to his defense, we hold also that he has not been denied a fundamentally fair trial. -14- See Fed. R. Evid. 403 (testimony is properly excluded where it amounts to “needless presentation of cumulative evidence”). Even if we were to find that the district court err ed in excluding the photographs, Solomon still cannot show that they we re material to his defense.
See Valenzuela-Bernal , 458 U.S. at 868 (evidence is material if its supp ression might have affected the trial’s outcome). Three of Solomon’s four witnesses testified about the assault and Solomon’s resulting fear. Solomon’s grandmother, father, and close friend all testified that Solomon ’s behavior changed dramatically following the assault. R.O.A., VI at 177, 187–89, 201–02. These witnesses all testified that whereas Solomon was outgoing and upb eat prior to the assault, after the assault he became fearful and reclusive (thus s upporting Solomon’s trial theory that he carried the firearm for self-defense , not for drug trafficking purposes). Thus, on this record, there is simply n o indication that the photographs materially advanced Solomon’s defense. Indeed, in light of our previous discussion regarding the cumulative nature of the photographs, the lack of materiality is obvious. 3 See Young v. Workman , 383 F.3d 1233, 1238 (10th-15-

Cir. 2004) (holding that the exclusion of cumulativ e evidence did not materially impact defendant’s right to present a defense). In sum, the district court did not abuse its discre tion in excluding the photographs. As recognized by the district court, the photographs were merely cumulative of live-witness testimony. The Constitu tion does not guarantee Solomon the unfettered right to present such eviden ce. We therefore hold that the exclusion of the photographs did not violate Solomo n’s right to present a defense.
C. Cumulative Error Solomon’s final argument is that he was denied his due process right to fundamental fairness through the combined effect of (1) the admission of the driver’s out-of-court statements into evidence and (2) the exclusion of the photographs. We deal with this contention only bri efly. “As applied to a criminal trial, denial of due proc ess is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that t he absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. California , 314 U.S. 219, 236 (1941). Because we have held that (1) the erroneous admission of th e driver’s statements was harmless and (2) the exclusion of the photographs d id not deny Solomon the right to present a defense, we also hold that the combination of these alleged errors did-16-

not render the trial fundamentally unfair. United States v. Rivera , 900 F.2d 1462, 1470 (10th Cir. 1990) (“A cumulative-error analysis merely aggregates all the errors that individually have been found to be harm less, and therefore not reversible, and it analyzes whether their cumulativ e effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.”).
III. CONCLUSION For the above stated reasons, we find that Solomon has not been denied any of his constitutional rights, and we therefore AFFI RM.