[Cite as State v. Ajumu, 2011-Ohio-2520.]




               Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 95285



                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       BAKARI AJUMU

                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED
                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-529858

       BEFORE: Stewart, P.J., Sweeney, J., and Jones, J.

       RELEASED AND JOURNALIZED: May 26, 2011

ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Pinkey S. Carr
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶ 1} Defendant-appellant, Bakari Ajumu, appeals from his conviction

for murder, a lesser-included offense of the original charge of aggravated

murder. He complains that the court erred by refusing to allow him to offer

certain evidence to show that he acted in self-defense, that the state
improperly commented on his criminal record and post-arrest silence, and

that his conviction is against the manifest weight of the evidence.

      {¶ 2} The state’s evidence showed that the victim formerly dated

Ajumu’s current girlfriend, and that the victim remained friendly with her.

The day before his death, the victim had been arrested on drug charges and

his vehicle was impounded.        He called the girlfriend at her place of

employment and asked her to give him the money he needed to retrieve the

vehicle. She refused. The victim called back and told the girlfriend that

unless she lent him the money he would break the windows of her house,

broadly hinting that it would be less expensive for her to lend him the money

than suffer the cost of repairing her windows. The girlfriend then spoke with

Ajumu and told him that the victim was mad at her and coming to her house.

 Ajumu arrived at the girlfriend’s house before either the girlfriend or the

victim. The girlfriend’s goddaughter was home and heard Ajumu say that if

the victim came over, he would kill him. The girlfriend arrived home from

work and received a call from the victim. She told him not to come over.

She hung up but saw Ajumu pick up her phone and dial the number from the

call she just received. The girlfriend left the room and did not hear Ajumu’s

conversation. When she returned to the room, Ajumu was no longer using

the telephone. The girlfriend went downstairs and told the goddaughter to

call the police because she thought Ajumu and the victim were “about to start
acting crazy.” The victim’s daughter, who was staying with the girlfriend,

saw Ajumu holding a knife. Ajumu went outside and confronted the victim

who had since arrived at the house.          The two men pushed each other.

Ajumu pulled a knife and stabbed the victim in his right arm. The wound

was so deep that the victim eventually bled to death.

        {¶ 3} Ajumu testified that he acted in self-defense.   He said that at the

start of the confrontation, the victim lifted his shirt to show a gun in the

waistband of his pants. After the reciprocal shoving commenced, the victim

started to reach for the gun, prompting Ajumu to react by stabbing the victim.

 Ajumu conceded that after he learned that the victim had died from the

stabbing, he fled to Nevada for two months under an alias, ostensibly to raise

money to mount a criminal defense. He was arrested upon his return to

Ohio.

                                         I

        {¶ 4} In his first assignment of error, Ajumu complains that the court

abused its discretion by playing for the jury, but refusing to allow into

evidence, a videotape depicting the victim briefly assaulting the girlfriend at

her place of employment. The court refused to allow the video into evidence

on grounds that it was “needless” in light of the girlfriend having testified to

the matters shown on the video and because the video was only available on

the state’s laptop computer, which could lead to certain technical issues.
      {¶ 5} R.C. 2945.35 states in part:   “No article or paper identified but

not admitted in evidence shall be taken by the jury upon its retirement.”

The court has broad discretion to admit an exhibit into evidence. State v.

Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 434, paragraph two of the

syllabus. The court does not abuse its discretion by refusing to admit an

exhibit on grounds that it is cumulative. See Cleveland v. Hill (1989), 63

Ohio App.3d 194, 199, 578 N.E.2d 509.

      {¶ 6} The video in question was marked as an exhibit and made the

subject of questioning for both the girlfriend and the victim’s mother. Ajumu

first mentioned the video during the mother’s testimony when she testified

that she had never seen her son hit another woman. Defense counsel asked

the mother whether she was aware of an incident occurring seven months

earlier at the girlfriend’s place of employment, captured by a security camera,

which showed the victim placing his hands around the girlfriend’s neck and

momentarily holding her against a wall. This conduct apparently led to the

victim’s arrest, and the mother conceded that she viewed the video at the

time legal proceedings were pending for the incident. The mother disputed

whether the video showed the victim putting has hands on the girlfriend’s

neck, so the court gave defense counsel permission to play the video for the

jury. The mother became distraught at the thought of seeing her deceased

son on the video, so defense counsel voluntarily refrained from playing the
video. In remarks later made on the record, the court stated that it would

accept by inference the authenticity of the video, but in light of the state’s

objections on relevancy grounds, withheld ruling on its admissibility.

Defense counsel stated his understanding that the court would allow the

defense to play the video for the jury at a later point in the trial.

      {¶ 7} During cross-examination of the girlfriend, defense counsel asked

her about the incident occurring at her place of employment. The girlfriend

said that she recalled it and that she mentioned it to the police at the time of

the victim’s death. At that point, the court allowed Ajumu to play the video

for the jury over the state’s objection. The girlfriend then narrated events as

they unfolded on the video.      She said that although the victim had been

arrested because of the incident, she did not press charges against him. This

led to a temporary protection order being entered against the victim, although

the girlfriend claimed to have been unaware of that order at the time of the

stabbing.

      {¶ 8} At the close of all evidence, Ajumu asked that the video be

admitted into evidence. The state again objected on grounds that the video

was cumulative in light of the girlfriend’s testimony admitting that the

incident occurred and that it was irrelevant because of her decision not to

press charges against the victim. The court excluded the video, stating that

it was cumulative because the jury had previously viewed it and that it
wished to avoid any “technical issues” that might arise in the jury room

because the video had been played on the state’s laptop computer.

      {¶ 9} We find no abuse of discretion in the court’s refusal to admit the

video on grounds that it was cumulative. “Evidence is ‘cumulative’ when it

adds very little to the probative force of the other evidence in the case, so that

if it were admitted its contribution to the determination of truth would be

outweighed by its contribution to the length of the trial, with all the potential

for confusion, as well as prejudice to other litigants, who must wait longer for

their trial, that a long trial creates.” United States v. Williams (C.A.7, 1996),

81 F.3d 1434, 1443. The jury saw the video during the trial and listened as

the girlfriend gave a lengthy narration of the events depicted in the video.

Repeated playing of the video in the jury room would have added nothing to

the probative force of Ajumu’s claim, particularly since the incident lasted for

mere seconds.

      {¶ 10} Ajumu now argues for the first time on appeal that the video was

relevant to his theory of self-defense because it showed his state of mind and

explained his actions in defending himself.

      {¶ 11} Having raised self-defense, Ajumu was entitled to testify about

“his knowledge of specific instances of the victim’s prior conduct” in order to

establish his state of mind at the time of the incident. State v. Baker (1993),

88 Ohio App.3d 204, 208, 623 N.E.2d 672. He did not, however, testify that
he personally viewed the video prior to the stabbing incident — he could only

say that he had conversations with the girlfriend regarding the incident

shown on the video and that he was aware of two other incidents in which the

victim “pulled a gun on her.” The video itself was therefore beyond Ajumu’s

knowledge. The court allowed Ajumu to testify to what he heard from the

girlfriend, so Ajumu had an adequate opportunity to establish his frame of

mind without the need for the video to be admitted as an exhibit.

                                       II

      {¶ 12} Ajumu next complains that the state committed misconduct by

eliciting testimony about his prior incarceration as well as implying that his

failure to immediately claim that he acted in self-defense constituted a

comment on his post-arrest right to remain silent.

                                       A

      {¶ 13} During the girlfriend’s direct testimony, she was asked by the

assistant prosecuting attorney what, if anything, she knew about Ajumu’s

background. She replied, “nothing really.” The state then asked “[d]id you

have any information that he spent time in prison?” The court sustained

Ajumu’s objection to that question. The state repeated the question during

its direct examination of a police detective, asking the detective did he, during

the course of his investigation, “make a determination as to whether or not

[Ajumu] had a criminal history?” Ajumu did not object to this question.
        {¶ 14} Evidence of prior convictions fall within the Evid.R. 404(B)

prohibition of using other acts to prove criminal conduct because they are

ultimately irrelevant to the crime charged. State v. Cotton (1996), 113 Ohio

App.3d 125, 131, 680 N.E.2d 657.        Evid.R. 609(A)(2) allows a party to

impeach the accused with evidence of a prior conviction, but only if the

accused chooses to testify.

        {¶ 15} The questions posed to the girlfriend and the detective about

Ajumu’s “criminal history” explicitly sought to elicit that which is forbidden

by Evid.R. 404(B) — information about Ajumu’s prior conviction. The state

does not seriously dispute that this constituted prosecutorial misconduct, at

least as it relates to the girlfriend, and we see no justifiable basis otherwise

for the question. Instead, the state falls back on the proposition that there is

no such thing as a perfect trial and that any error in the questioning was

harmless beyond a reasonable doubt.

        {¶ 16} “Error in the admission of evidence is harmless if there is no

reasonable possibility that the evidence may have contributed to the accused’s

conviction.” State v. Bayless (1976), 48 Ohio St.2d 73, 106, 357 N.E.2d 1035,

vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d

1155.

        {¶ 17} We have serious reservations with applying the harmless error

rule in a case like this where the state uses it to immunize blatant
misconduct.   Nevertheless, the harmless error rule applies.       See State v.

DePew (1988), 38 Ohio St.3d 275, 287-288, 528 N.E.2d 542. Ajumu made it

clear in his opening statement to the jury that he would be defending the

charges on a theory of self-defense. Ohio uses a subjective test to determine

whether a defendant acted in self-defense, so the defendant has the burden of

proving his state of mind; that is, that he had a bona fide belief that he was in

imminent danger of death or great bodily injury. State v. Robbins (1979), 58

Ohio St.2d 74, 80, 388 N.E.2d 755; State v. Scott, 8th Dist. No. 90671,

2008-Ohio-6847, at ¶32.

      {¶ 18} None of the trial witnesses gave any testimony to show that

Ajumu acted with the bona fide belief that he was in imminent danger of

death or great bodily harm. No one saw the victim with a gun, saw him raise

his shirt indicating that he had a gun, or saw him motion as if to draw a

weapon; no one, that is, except Ajumu. Additionally, no one testified that

Ajumu said anything about a gun or that his actions were taken to protect

himself or others. In fact, not only did Ajumu fail to tell any other witness

that he acted in self-defense, he was heard shortly before the stabbing to say

that he would kill the victim if the victim came over to the house.          The

evidence presented by the state thus strongly rebutted Ajumu’s theory of

self-defense. It was incumbent upon Ajumu to carry his burden of proving
the defense by testifying to his subjective state of mind at the time of the

stabbing.

      {¶ 19} If it was inevitable that Ajumu would testify in order to carry his

burden of proving self-defense, the state surely would have impeached him

with evidence of his prior conviction under Evid.R. 609(A). Indeed, defense

counsel asked Ajumu about his prior conviction on direct examination as a

means of blunting the state’s impeachment.

      {¶ 20} Nevertheless, we are troubled by the state’s eliciting testimony of

Ajumu’s criminal history before he took the stand because the questions did

not result from innocent conduct. Every prosecuting attorney knows, or

should know, that impeachment with evidence of a defendant’s prior

convictions can only be done if the defendant testifies. A single violation of

this rule from an experienced prosecuting attorney is difficult to comprehend;

a second violation of the rule in the same trial is unthinkable to the point that

the conduct must be intentional.       We condemn in the strongest terms

possible the assistant prosecuting attorney’s actions with the reminder that

“[p]rosecutors have a special duty to seek justice, not merely to convict,”

Connick v. Thompson (2011), ___ U.S.___, and that a violator of this duty can

be subject to disciplinary action. State v. DePew (1988), 38 Ohio St.3d 275,

288-289, 528 N.E.2d 542. Yet at the same time, we are constrained to find

that any information elicited from the state’s improper questioning about
Ajumu’s prior criminal history was thus truly harmless given the certainty

that his criminal history would come out during his testimony.

                                      B

        {¶ 21} Ajumu next complains that the state improperly commented on

the exercise of his post-arrest right to remain silent.      During Ajumu’s

cross-examination, the state challenged him on his claim of self-defense by

eliciting the admission that Ajumu “walked away” after the stabbing and his

concession that no other witness saw the gun that he claimed to have seen in

the waistband of the victim’s pants. The state then asked, “[y]ou were so

justified in [stabbing the victim] you didn’t even tell anyone, right?” The

court overruled an objection and, before Ajumu could answer, the state asked:

 “Sir, yes or no: Did you tell anyone besides us here in court?” Ajumu replied

“no.”

        {¶ 22} Among the post-arrest rights that attach to a defendant is the

right to remain silent. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694. Under Miranda, the state may not use at trial “the

fact that [the defendant] stood mute or claimed his privilege in the face of

accusation.” Id. at 468, fn. 37. The Supreme Court has held further that

the prosecution may not use a defendant’s post-arrest silence to impeach an

exculpatory story told at trial. See Doyle v. Ohio (1976), 426 U.S. 610, 96

S.Ct. 2240, 49 L.Ed.2d 91. This is because implicit in the Miranda warnings
is an assurance that silence carries no penalty, and, due to the warnings,

every post-arrest silence is insolubly ambiguous. Doyle, 426 U.S. at 617.

      {¶ 23} Doyle has no application to this case, however, because the state’s

question, viewed in context, did not refer to a time period after Ajumu’s

arrest. Three days after the stabbing Ajumu went to the girlfriend’s place of

employment. She urged him to turn himself into the police, but he said he

would “when he was ready.”       He did not claim to her that he acted in

self-defense. He then fled to Nevada, without having spoken to the police

and without having been given his Miranda rights.

      {¶ 24} We find these circumstances justified the state’s questioning

without violating the principles set forth in Doyle.     The state’s question,

viewed in the context of the testimony, referenced Ajumu’s conversations with

the girlfriend just days after the stabbing and his state of mind during the

time of the stabbing — that is, if he had been in such fear of imminent death

or great bodily harm from the victim, why didn’t he communicate that fact to

the girlfriend.   He had not been in police custody at this point (he was

preparing to flee to Nevada), so he had not been given any assurances that

his statements could not be used against him.             It follows that no

constitutional guarantees for the right to remain silent attached and none
were violated. The state could validly impeach Ajumu on this basis.1 See

Jenkins v. Anderson (1980), 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86;

Fletcher v. Weir (1982), 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490.

                                                 III

       {¶ 25} Finally, Ajumu argues that his conviction is against the manifest

weight of the evidence because the jury lost its way by rejecting his claim of

self-defense.

       {¶ 26} The manifest weight of the evidence standard of review requires

us to review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. State v. Otten (1986), 33 Ohio App.3d 339,

340, 515 N.E.2d 1009. The use of the word “manifest” means that the trier of

fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution

of factual issues resides with the trier of fact. State v. DeHass (1967), 10

Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The trier of

fact has the authority to “believe or disbelieve any witness or accept part of


         For the same reasons, we find no merit to Ajumu’s third assignment of error claiming that the
       1


court erred by denying his motion for mistrial based on an alleged Doyle violation.
what a witness says and reject the rest.” State v. Antill (1964), 176 Ohio St.

61, 67, 197 N.E.2d 548.

      {¶ 27} There were two major conflicts in the evidence:     whether Ajumu

told the goddaughter that he would kill the victim if he came over to the

house and whether the victim carried a gun in the waistband of his pants.

      {¶ 28} The   jury could rationally conclude that Ajumu told the

goddaughter that he would kill the victim if he came to the house. Shortly

after receiving the victim’s telephone call at her house, the girlfriend testified

that she told the goddaughter to call the police because Ajumu and the victim

were “about to start acting crazy.” She knew that Ajumu and the victim

“had this thing where they think they have to protect women,” implying that

the two men might start fighting.     Ajumu himself claimed to be aware of the

victim’s violent history with the girlfriend, so it was conceivable that the jury

believed Ajumu would respond to the victim’s visit by threatening to kill him.

      {¶ 29} We also conclude that the jury could rationally have found that

the victim was not carrying a gun. Apart from Ajumu’s testimony, no one

else saw a gun on the victim, nor did anyone else see him lift his shirt to

display a gun. Ajumu’s credibility on the matter suffered given his failure to

mention to the girlfriend that he acted in self-defense — a claim that would

appear to be immediately obvious from the circumstances that he claimed

existed.   His credibility likewise suffered when he fled the state to avoid
being arrested.           “Flight from justice * * * may be indicative of a

consciousness of guilt.” State v. Taylor (1997), 78 Ohio St.3d 15, 27, 676

N.E.2d 82. The jury could have rationally found that Ajumu’s immediate

failure to claim self-defense and his two-month evasion of the police showed a

consciousness of guilty that belied his claim of self-defense.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.           Case remanded to

the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR
