DOCKET NO. A-2201-08T2
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Stonerod, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-11-1756.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Stonerod, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
The first jury to hear this case was unable to reach a verdict. A second jury found defendant Vonte L. Skinner guilty of attempted murder, N.J.S.A. 2C:5-1a(3), 2C:11-3a(1); aggravated assault resulting in serious bodily injury, N.J.S.A. 2C:12-1b(1); and aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2), but acquitted him of unlawful possession of a weapon, N.J.S.A. 2C:39-5; and possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4a. The judge merged defendant's convictions and imposed an extended term sentence of thirty-years imprisonment pursuant to N.J.S.A. 2C:43-6, which is also subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
The most significant of the several issues defendant raises on this appeal concerns the reading of his rap lyrics to the jurors. Because of the length of the reading, the redacted lyrics read to the jury are set forth in full in the appendix to this opinion. The lyrics were read to establish defendant's motive and intent — material issues that were not "genuinely in dispute." State v. Darby, 174 N.J. 509, 519 (2002). The lyrics graphically conveyed the impression that defendant, the author, had a propensity for violence and reprehensible disregard for human life and had no permissible relevance — exactly what N.J.R.E. 404(b) is "designed to interdict." See State v. Kemp, 195 N.J. 136, 150 (2008). This was error, and it was not harmless.
On the night of November 8, 2005, the victim, Lamont Peterson, was shot multiple times at close range with a 9- millimeter gun that was never recovered. The shots pierced Peterson's abdomen, chest, back and the side of his head. As a consequence, Peterson is paralyzed from the waist down. Several cell phones were recovered near the spot on the street where Peterson was found, and the police later linked one phone to defendant. Nine days after the shooting, defendant was arrested and gave a statement to the police which was admitted at trial. Defendant's rap lyrics were found in the back seat of the car he was driving when arrested — his girlfriend's Malibu.
Prior to the shooting, Peterson sold drugs provided by Brandon C. Rothwell. Defendant was the newest member of Rothwell's three-man team. According to Peterson, defendant also sold drugs but had an additional role — serving as the team's muscle to address "problems" with buyers and other drug dealers. Apart from Peterson's testimony identifying defendant as the muscle, there was no evidence of anything defendant had done in that role. In fact, Peterson testified that he had never asked defendant for help because he took care of his own problems. According to Peterson, all members of the team had 9-millimeter guns.
Peterson's share of the profits diminished after defendant joined Rothwell's team. To address his shortfall, Peterson kept some of the money he obtained from buyers rather than giving it to Rothwell as expected. Rothwell and Peterson had a falling out, and Rothwell directed Peterson to return a Tech-9 that he had been given as a member of the team. Peterson still had the Tech-9 on the night he was shot. It and fourteen bags containing drugs were found in the trunk of his car at the scene of the crime. Peterson also had drugs in his pocket.
There was no dispute that defendant was present when Peterson was shot. He admitted that he was there in the statement he gave to the police after learning they had found his phone, and he said he met Peterson to buy drugs from him. Additionally, phone and "Nextel" records confirmed that the men spoke several times that day, the last contact being moments before the shooting. Consistent with defendant's statement explaining his presence, Peterson testified that he had agreed to meet defendant to sell him drugs.
When Peterson arrived at the designated place, he saw Rothwell standing near defendant and was surprised by that. Peterson got out of his car and left it running. By Peterson's account at trial, as he walked toward defendant, defendant approached and fired. Peterson recalls seeing defendant and the gun but nothing else about the incident.
According to a post-arrest statement defendant gave the police, he went to meet Peterson to buy drugs alone and drove his girlfriend's Malibu to get there. Just as Peterson was about to give him the "coke," a "shot [went] off, boom." When he heard the shot, defendant ran one way and Peterson ran another. He did not see Peterson get shot or who was doing the shooting.
The officer responding to the scene found Peterson lying on the street, partially under a parked car. Peterson told him he did not know who shot him, but en route to the hospital he told another officer that defendant was the shooter. Peterson later reverted to his original account and said he did not know who shot him, but after speaking to his mother, he decided to tell the "truth" and consequently abandoned his plan to avoid being a snitch by exacting revenge himself.
Alexandria Ross, Peterson's cousin and the mother of Rothwell's child, testified for the defense at this trial. Contradicting her prior testimony and statements, she said Peterson told her defendant did not shoot him and that he thought another man, Joseph Ward, also known as Neri, had. Neri and Peterson had been arguing for a few weeks when Peterson was shot — ever since Neri robbed one of Peterson's relatives and others retaliated by shooting at Neri's car. Neri was also in the area on the night Peterson was shot.
After the defense rested, the State called a rebuttal witness, a detective who had interviewed Ross after the shooting. He testified that she had told him that she and other members of her family were afraid of defendant and thought she was in danger because defendant knew where she lived and because she knew what he was capable of.
Although Rothwell was charged in the indictment along with defendant, he was not prosecuted. During the State's opening, the prosecutor explained that charges against Rothwell had been dismissed because Peterson had reservations and decided that he would not testify against Rothwell. Neither defendant nor Rothwell testified.
On appeal defendant raises these issues:
THE COURT ERRED IN ADMITTING HIGHLY PREJUDICIAL HARDCORE AND GRAPHIC RAP LYRICS UNDER N.J.R.E. 404(b[)].
A. The Writings Were Improperly Authenticated.
B. The Rap Lyrics Were Inadmissible Under N.J.R.E. 404(b).
C. The Admission Of The Rap Lyrics Was Precluded by N.J.R.E. 403.
A REBUTTAL WITNESS INTERJECTED PREJUDICIAL HEARSAY OF THE DEFENDANT'S REPUTATION FOR VIOLENCE WHICH RESULTED IN BOTH A DENIAL OF THE RIGHT TO A FAIR TRIAL AND OF CONFRONTATION. (Not Raised Below).
THE COURT FAILED IN ITS DUTY TO ADEQUATELY INSTRUCT THE JURY ON THE RELEVANT LAW WHEN IT RESPONDED TO QUESTIONS FOR CLARIFICATION BY GIVING JURORS COPIES OF THE CHARGES. (Not Raised Below).
THE MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE INCONSISTENT VERDICT RESULTED FROM A FINDING OF GUILT AS AN ACCOMPLICE WHICH WAS NOT PART OF THE JURY INSTRUCTIONS.
THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY WHEN HE TOLD THE JURY THAT TO NOT CONVICT WOULD BE APPROVING A SUBCULTURE OF LAWLESSNESS. (Not Raised Below).
THE COURT ERRED IN IMPOSING A GRAVES ACT EXTENDED TERM BECAUSE THE JURY ACQUITTED THE DEFENDANT OF THE POSSESSORY FIREARM OFFENSES. ADDITIONALLY, THE SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE VACATED.
A. The Extended Term Sentence Cannot Stand Because It Was Based On A Judicial Determination That The Defendant Possessed A Firearm.
B. Alternatively, The Quantum Of Sentence Is Excessive.
As noted at the outset of this opinion, the most significant issues concern the admission of defendant's rap lyrics that were found in the car he was driving at the time of his arrest. Prior to defendant's first trial the judge ruled, over defendant's objections, that the State could introduce the selections with specified redactions. Defendant wrote the lyrics over a period of several years. The State pointed to one lyric written after September 2005, but conceded that others were written as many as three to four years prior to this crime. The jury was not given any information about when the lyrics were written.
At this trial, the State referenced the rap lyrics in its opening and introduced them in its case in chief to establish defendant's motive and intent, not in response to an attack on the State's evidence. Defendant's brother, a part-time music producer, testified for the defense. He read the jury a lyric of tribute defendant had written about a friend killed in an accident and other lyrics defendant had written about his life. Defendant's brother also read rap lyrics composed by successful rap artists to illustrate the graphic nature and legitimacy of the genre.
The State's reading from defendant's lyrics was extensive. The trial transcript of the reading, which was not interrupted at any point, runs for thirteen pages of twenty-five lines each. The lyrics are generally written in a first person narrative, with several identifying the narrator as "Threat." Defendant has the moniker "Threat" tattooed on his arm, and one lyric mentions defendant's tattoo as follows: "In block wars I'm a vet, In the hood I'm a threat. It's written on my arm and signed in blood on my Tech." Another lyric states "Threat's" date of birth, which matches defendant's birth date.
The lyrics as redacted and read to the jury recount "Threat's" violent acts — for example, shootings, knifings and rapes committed while "Threat" is forcing members of the woman's family to watch. The lyrics describe the acts with disturbing metaphors, and they include profanity, expletives and odious racial epithets. For example, one metaphor depicts the grief "Threat" would cause a mother by shooting her child as follows:
Yo, look in my eyes. You can see death comin' quick. Look in my palms, you can see what I'm gunnin' with. I play no games when it comes to this war shit. If death was a jacket, you would see how the floor fits. Crackin' your chest when I show you how the force spits, makin' your mother wish she would have had an abortion.Other selections describe the physical damage "Threat" causes when he shoots someone in the head, neck or abdomen.
Overall, the lengthy reading amounted to a prolonged and appalling assault on common sensibilities. The first eleven-and-one-half lines of the transcribed reading, approximately 3.5% of the total, give some idea of the overall effect. Generally, the transcribed text has not been altered, but the words "person" and "people" are substituted for the singular and plural form of a racial epithet.
But these [people] keep testin' my weapons. I hold my head just to keep from stressin'; Got Beef, I can spit from a distance for instance; a [person] wouldn't listen so I hit him with the Smithen; hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, lifted and flipped him. The safe street squad found him, half his shell missin. I play my position, fall back and watch [people] keep my enemies real. Close to my twin bitches, hollow heads in the back of they throats mercury drippin'. They spit sickness, poison a [person] right when they clip him. They don't call me Threat for nothin', so pay attention.
Although writing about evil things and expressing evil thoughts is not a bad act, this court and the Supreme Court have recognized that when a defendant's writing reflects his bad acts or a propensity to act badly, Evidence Rule 404(b) applies. State v. Crumb, 307 N.J. Super. 204, 231 (App. Div. 1997) (assuming that Evidence Rule 404(b) limits the use of a defendant's racist writings because the jury could interpret the writing "to constitute other wrongs or acts"), certif. denied, 153 N.J. 215 (1998); see State v. Koskovich, 168 N.J. 448, 482-84 (2001) (relying on Crumb and considering whether Evidence Rule 404(b) required exclusion of a rap lyric written by defendant because there was "at least some basis to consider [the rule's] implication").
Considering the content of these lyrics, even the small segment fully set forth above, there is no question that Evidence Rule 404(b)'s purpose was implicated. It is an understatement to say that, as in Crumb, a jury could infer that the author of these rap lyrics, defendant, was a bad person who not only believed in addressing people who cross him by killing them but also had done that in the past as he so vividly describes in his lyrics.
Of course, the bad-act evidence must be competent evidence. Defendant's writings are hearsay that could be admitted for the truth of the matters asserted only if the judge had found adequate evidence to support a determination that the lyrics were a credible description of acts done by defendant, N.J.R.E. 803(c)(1), 104(c), and only if the jurors were directed to disregard the statements if they found the lyrics were not a credible description of things defendant had done, N.J.R.E. 104.
The relevant law is clear. Because evidence of defendant's bad conduct on another occasion "has a 'unique tendency' to prejudice a jury against the defendant, it must be admitted cautiously." Id. at 85 (quoting State v. Reddish, 181 N.J. 553, 608 (2004)). "The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is 'a "bad" person in general.'" State v. Cofield, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). Evidence Rule 404(b) is designed to avoid that consequence.
The rule prohibits admission of such evidence to "prove the disposition of a person in order to show that such person acted in conformity" with that disposition, but it permits use of such evidence for other limited purposes — including to establish motive or intent when "relevant to a material issue in dispute." N.J.R.E. 404(b). The dispute must be genuine. Darby, supra, 174 N.J. at 519. Thus, "other-crimes evidence should not be admitted solely to bolster the credibility of a witness against a defendant." State v. P.S., 202 N.J. 232, 256 (2010).
In Cofield, the Court developed "a rule of general application in order to avoid the over-use of extrinsic evidence of other crimes or wrongs." 127 N.J. at 338. That rule sets forth in four prongs the necessary conditions for admission of bad-act evidence:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
With respect to the first prong, prior to Cofield the Court stated that when defendant's motive or intent "is important and material, a somewhat wider range of evidence is permitted in showing such motive or intent than is allowed in the support of other issues." State v. Rogers, 19 N.J. 218, 228 (1953). The Court reasoned that "[o]therwise there would often be no means to reach and disclose the secret design or purpose of the act charged in which the very gist of the offense may consist." Ibid. On that ground, the Court stated a broad rule applicable to show state of mind: "All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him although they may have occurred previous to the commission of the offense." Ibid.
Cofield limits the breadth of that standard by permitting the use of 404(b) evidence in a case where there is a genuine dispute about motive or intent — in other words in cases where the rationale of Rogers is applicable. Cofield makes it clear that the State's need for the evidence is a factor important to relevance under prong one. 127 N.J. at 338-39 (noting that "if identity is not really in issue . . . it would be improper to justify the use of other-crime evidence on that basis").
In this case, there was evidence of defendant's motive. Peterson's testimony provided it. He testified the defendant served as Rothwell's muscle when there were problems with Rothwell's drug business, and Peterson testified that he had been skimming profits, argued with Rothwell and refused to give Rothwell his Tech 9 as Rothwell demanded. That motive was the centerpiece of the State's case. In the State's opening statement to the jury, the prosecutor explained: Defendant's "motive was to enforce the street laws against Lamont Peterson, and his intent was to kill him." Thus, this was not a case in which circumstantial evidence of defendant's writings were critical to show his motive.
Nor was such evidence important to show that defendant had the intent to kill Peterson, which the State was required to establish to prove attempted murder. This brutal shooting bespoke intent to kill. The jurors did not need rap lyrics, capable of suggesting that conviction would be proper for no reason other than his depravity, to understand that whoever fired seven bullets into Peterson head, neck and abdomen meant to cause his death. There was no evidence that raised any question as to the shooter's intent.
The absence of defense evidence raising a question as to the shooter's intent distinguishes this case from Koskovich, which also involved a shooting with a clear capacity to cause death. Three bullets hit the victim's head — one grazed his nose, another entered his face on the right side and the third, the fatal shot, hit the back of his head. 168 N.J. at 472. In Koskovich, the defendant presented expert evidence to demonstrate that his use of the drug "Fiorcet" affected his "capacity to commit the offenses knowingly and purposely . . . ." Id. at 473. In that circumstance, the Court concluded that the rap lyric showing a "sort of obsession with killing people" was relevant and admissible to prove defendant acted "knowingly or purposefully[.]" Id. at 480-81.
Similarly, Peterson's testimony providing evidence of defendant's motive distinguishes this case from Koskovich and Crumb. In Koskovich a rap lyric written by defendant was introduced to establish defendant's motive "to experience the 'thrill' of killing" or "establish his reputation as a criminal." 168 N.J. at 481. The crime involved the senseless shooting of a pizza delivery man and his companion whom defendant and his friend summoned to the scene by ordering the pizza; the Court concluded that the lyrics showing "a willingness and desire to kill" were probative of motive in that case, which was otherwise incomprehensible. Ibid. The lyric was brief: "About killing, people, you can kill by [illegible]. One by guns, one night you break in, somebody home. And you take their money and kill by drive [illegible] down the road and shout, and shouting. By the big heads. The Best." Id. at 472. In Crumb the defendant's racist writing was used to establish a motive that explained the senseless and otherwise inexplicable beating of the elderly and vulnerable African American. 307 N.J. Super. at 231.
To the extent the lyrics depicting defendant as an enforcer and hit-man had any relevance beyond demonstrating his criminal propensity and depravity, it was to add weight to Peterson's testimony that defendant played that role for Rothwell. With respect to defendant's motive to kill Peterson, the lyrics added nothing. The only logical relevance was to give additional weight to Peterson's testimony about defendant's motive. In that respect, the lyrics were much like the testimony of the witness in Darby who was permitted to testify that he committed another robbery to support the credibility of his testimony that he and defendant had committed the robbery for which defendant was on trial. 174 N.J. at 520-21. The Court disapproved that use of 404(b) evidence in the form of extrinsic evidence to bolster the witness's credibility. Ibid. While the State did not argue that these lyrics were admissible for that purpose in this case, that was the only relevance they had other than to suggest what Evidence Rule 404(b) prohibits — that defendant had a propensity for and belief in shooting people who crossed him and was the sort of person who must be guilty. See Kemp, supra, 195 N.J. at 150 (reversing on this ground where evidence that defendant committed another robbery alone had no relevance to his guilt of a robbery committed with an accomplice in the same area apart from showing his propensity to rob).
The lyrics could not be used to identify defendant based on the fact that he had committed similar crimes with similar guns. While his lyrics describe similar crimes against unknown persons and some lines mention Tech-9s, a gun of the same millimeter used to shoot Peterson, other than Peterson's unsubstantiated assertion the defendant acted as Rothwell's enforcer, there was no evidence that defendant did any of the acts he wrote about in his lyrics or had any knowledge of the subject matter of his work beyond what might be seen in a violent movie. For that reason, the third prong of the Cofield test barred its use. That prong required the judge to act as gatekeeper and preclude use of the other bad acts for that purpose because the State did not present clear and convincing evidence that defendant had shot people in similar ways for similar reasons in the past. The judge's instructions to the jurors did not prohibit them from concluding that defendant had done what he wrote about. Without the required threshold showing of clear and convincing evidence, this was error.
To illustrate the risk of extreme prejudice, we refer to a portion of the lyric quoted in full in section A above: "Got Beef, I can spit from a distance for instance; a [person] wouldn't listen so I hit him with the Smithen; hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, lifted and flipped him." This lyric describes a shooting resembling Peterson's in that it involved multiple gun shots delivered to the head, "the mask," and chest, "the ribs," and the shooting was motivated by the victim's failure to listen. The jurors were left to speculate that defendant had done such things even though there was no evidence to suggest that his writing was anything other than fiction. Moreover, since the gun was never found, we fail to see how the references to 9-millimeter guns in the lyrics had any capacity to show that he was the person who used a 9-millimeter gun to shoot Peterson.
We have reviewed all of the lyrics set forth in the appendix in full and found none that do not suffer from the same defects that lead us to conclude that the lyrics we have discussed should have been excluded under the first and third prongs. Accordingly, we conclude that the judge erred in allowing the reading. As Evidence Rule 404(b) and Kemp make clear, where the bad act evidence is not relevant to a material issue it is not admissible. Indeed, the fourth and final prong of Cofield, which requires that the probative value of the evidence not be substantially outweighed by its apparent prejudice, 127 N.J. at 338, cannot be satisfied if the bad act evidence has none other than to demonstrate propensity. Even if we were to conclude that the lyrics had some permissible probative value, given the volume of graphic, highly inflammatory and extremely prejudicial lyrics, we would conclude that the probative value was overwhelmingly outweighed by the risk of prejudice.
While our conclusion that these lyrics were erroneously admitted makes further discussion unnecessary, it is worth noting the readings of a defendant's fictional writing pose special problems that must be addressed before the lyrics are deemed relevant to prove a material issue. The relevance of writing like this is difficult to discern because it uses words differently than in common parlance. To illustrate, we need only quote a portion of one lyric: "The safe street squad found him, half his shell missin. I play my position, fall back and watch [people] keep my enemies real. Close to my twin bitches, hollow heads in the back of they throats mercury drippin'. They spit sickness, poison a [person] right when they clip him."
Without a competent explanation by a person with some expertise in the area, the judge and jury are left to speculate about this lyric's meaning. See generally, Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1 (2007) (discussing this complexity and others involved in use of rap lyrics as evidence, its inherent limitations and proposing an approach to the problems). Moreover, we do not know whether an expert in the area would explain that rap lyrics are a vehicle through which writers commonly convey horrific things in a graphic way to point out the tragedy of street violence and thereby diminish it. If that is the case, then such lyrics have no relevance but extreme prejudice.
We recognize that decisions of courts in other jurisdictions, upon which our dissenting colleague relies, have upheld the use of rap lyrics in criminal trials. We do not find them persuasive or helpful in resolving this case. In Cook v. State, 45 S.W.3d 820 (Ark. 2001), defendant was charged with aggravated robbery based on the allegation that he entered a restaurant and shot the manager. Id. at 821. The lyrics, which discussed the planning and execution of robberies, were admitted for the limited purpose of establishing the defendant's intent, and the court found no abuse of discretion. Id. at 821-23. The jury instruction was not discussed in Cook and there is no indication that it was inadequate with respect to indicating that the act written about had not occurred and indicating that the evidence was offered only to show planning relevant to intent. To the extent that the court did not find the inclusion of arguably unnecessary inflammatory material irrelevant to motive problematic, the decision is inconsistent with Cofield.
In Bryant v. State, 802 N.E.2d 486, 491 (Ind. App. 2004), the court concluded that a line repeated in two lyrics referring to a body in the trunk of a car was relevant in defendant's prosecution for killing his stepmother, whose body he had placed in the trunk of a car he identified as his. In that case, the court disregarded the irrelevant inflammatory lyrics because the defendant invited the error by insisting on admission of the entire lyric, and the court noted that the critical line of the lyric had particular relevance because the defendant claimed that someone else did the killing. Id. at 498.
Finally, in Joynes v. State, 797 A.2d 673, 676-77 (Del. 2002), the court held that the trial court did not abuse its discretion in admitting a rap song indicating that the victim of the alleged crime — aggravated menacing and reckless endangering — was on defendant's "hit list." Defendant had composed the lyric the day after he held a knife against the victim's neck and said he did not like him and would cut him. Thus, the writing was a highly probative and direct explanation of the writer's motive and intent written after the criminal act. Id. at 675.
The nature of Evidence Rule 404(b) analysis makes the proper outcome highly dependent upon the facts and posture of the particular case. Consequently, efforts to identify a majority approach or state a general rule of admissibility of rap lyrics is fraught with difficulty. In Cook, the court correctly included Koskovich in a list of cases that approved admission of song lyrics as proof of intent. 45 S.W.3d at 823 n.2. That accurate observation, without more, is not instructive in resolving cases presenting different facts.
There are cases in which courts have found, based on the content of the lyric or the facts of the case, that it was error to admit lyrics authored by the defendant. See, e.g., State v. Hannah, 23 A.3d 192, 196-201 (Md. 2011) (concluding that lyrics were not probative of anything other than propensity for violence, discussing decisions from courts of other jurisdictions and reversing); State v. Cheeseboro, 552 S.E.2d 300, 312-13 (S.C. 2001) (finding error because the probative value of lyrics generally glorifying violence was minimal and outweighed by the unfair prejudicial value but concluding that the error was harmless).
One court has rejected "the proposition that an author's character can be determined by the type of book he writes." State v. Hanson, 731 P.2d 1140, 1145 (Wash. Ct. App. 1987). As noted above, where there is no evidence that defendant has committed acts he has described in his lyrics, the predicate question for the court is whether a jury could determine, on the evidence presented, whether the type of lyric written demonstrates the author's motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident or some other specific point relevant to a material issue in dispute. N.J.R.E. 404(b). Beyond that statement, we see no basis for a rule of general applicability as to admission or exclusion of rap lyrics.
Finally, we must consider whether the erroneous admission of this evidence over defendant's objection was harmless or clearly capable of producing an unjust result. R. 2:10-2. Because there was no physical evidence linking defendant to this crime other than his cell phone and Peterson at times implicated and at times exonerated defendant, we have a significant doubt about whether the jurors would have found defendant guilty if they had not been required to listen to the extended reading of these disturbing and highly prejudicial lyrics. Accordingly, we reverse and remand for a new trial. Because we have found no basis on which these lyrics may be admitted without offense to Evidence Rule 404(b), they must be excluded.
Defendant raises additional issues. The arguments presented in Point II have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). And the arguments raised in Points I, III, IV, V and VI, including his claim that the rap lyrics were not properly authenticated, are mooted by the reversal and our determination that the lyrics may not be introduced in another trial.
On June 28, 2012, defendant moved for leave to file a pro se supplemental brief as within time. The motion is granted and the merits are discussed here.
Defendant argues that the court erred in denying his motion for a new trial. That claim is mooted by our reversal of defendant's conviction. Accordingly, there is no reason to address it.
In addition, defendant argues that the indictment must be dismissed because the State presented false testimony to the grand jury suggesting that Neri had an alibi. The defendant sought dismissal of the indictment prior to trial on the ground that the State failed to present the grand jurors with evidence concerning Neri that tended to exculpate defendant and instead misleadingly suggested that Neri had a legitimate reason to be in the area. The judge concluded that the evidence was not clearly exculpatory and presented an issue for trial. We affirm that determination substantially for the reasons stated by the judge in an oral decision of March 30, 2007.
The argument that defendant presents in his supplemental brief is different and was not raised in the trial court. It is based on an alleged inconsistency between a detective's grand jury and trial testimony. Because we are remanding for further proceedings and defendant may raise the issue on remand, we decline to address it in the first instance.
In the interest of avoiding repetition of similar arguments in the future, we briefly address defendant's objection to the State's closing. The prosecutor's expression of his personal weariness with the subculture's code of silence and his argument likening Ross's testimony to a call for anarchy were, at best, improper. While there was no objection, a prosecutor has a duty to see that justice is done and should not require an objection to keep a closing argument within the broad boundaries of permissible advocacy related to the evidence produced at trial. State v. Farrell, 61 N.J. 99, 103-06 (1972).
Reversed and remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Appendix - Lyrics Read to the Jurors
Q. Thank you. If you could begin. A. At the top of the page is number 5 on the left, the words, "No Hook," at the top and page — page 59 on the right-hand side.
"But these [people] keep testin my weapons. I hold my head just to keep from stressin'; Got beef, I can spit from a distance for instance; a [person] wouldn't listen so I hit him with the Smithen; hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, lifted and flipped him. The safe street squad found him, half his shell missin. I play my position, fall back and watch [people] keep my enemies real. Close to my twin bitches, hollow heads in the back of they throats mercury drippin'. They spit sickness, poison a [person] right when they clip him. They don't call me Threat for nothin', so pay attention. This shit is real. You can find yourself missin', cause [people] got kids to feed with no dishes. This concrete jungle keeps [people] holdin' they pistols. Some silence it up to hear they shells whistle, but you can hear the screams when the slugs pierce the gristle. Blows out tissue. (Breaking News) Man gunned down by six youths, left him twisted, masked open and thoughts drippin', his kids cryin' and wife twitchin'. Where the turnkeys got 40 cowls for death missions and ya' whack is ya' strap, so [people] aim with precision. Cause I'm a grimy [person] that'll cross a coffa'. Head on first round death by decision, layin' ten count in ya' vision. Blacks creepin', mad silence, eternal sleepin'."
The next page has Page 60, the number 60 circled on the top left corner and then starts with:
"The price you pay when you run in these streets and the [person] gets to drop one tone no beepin', beep. For many years [people] thought shit was game until they frames got touched with flames, had they moms in the mortuaries screamin' they names, grabbing they clothes, red soaked ravaged with holes, shakin' your dormant body on the tables, that's called cryin' your name. Wonderin' if you died in pain. Was it instant or did you feel the slugs fryin' your veins. Noone will ever know cause the dead don't speak when they flesh is touched with heat, slugs crush your dreams like that movies, die American me. Chokin' a [person] if I ain't the guns, I'm a poka [person]."
The next page is number 78 at the top left corner:
"I'm from the city where [people] don't sleep. Wartime all my [person] speak with heat. I love bringin' heat and to beef melt ya' Jeep. Two to your helmet and four slugs drillin' your cheek to blow your face off and leave your brain caved in the street — the seat. I play with fire like pyros and gasoline, so, come test one. I hope your brain got a rhino vest on. Death is your final step, Dawg, ain't nothin' sweet here, everywhere I go, I got my heat. There, if there's a problem, then pop-off. I got my fleet here. I'm that kickin' your door [person] spit in the four [person], rock your cap and watch you flip to the floor, [person], see if your gravity can defeat the law [person]. With two 9's — with two 9's, I am a hated [expletive] the law [person]. I am home now with Kays and Mac's, Ruger's and Techs. I'm, the dude to shoot at ya' neck, shatter your life like a bottle of Becks. One and only to slice a dude like bologna, you don't know me. I'll watch you pricks die slowly, lay you stiff like a trophy. Don't approach me; I hurt dudes who play me closely. I keep to 9's smoking, bend a [person] and leave his ass open."
The next page is number 81 on the right-hand side and it say, "Loose Rap," at the top:
"For [people] that's fees, I keep cotch and calicos, rip your solar plex right where your salad bowl. Knock a few parts off and put your heart in a salad bowl, talk loose, you lose your valuables: your wife and your son and the dog that your momma holds. This life is cold when you break survival codes, now your family gotta witness what the rifle holds. Your mom's died in the bed readin' Bible scrolls. Your pop's heart stopped, then watched his ex wife — who — his wife explode.
The words, "Pick Apart" are at the bottom and circled.
The next page is page 84. It begins:
"A thug [person] is a dude that's willing to pop, can't find you in a manhunt. He's killin' your pops. Won't let the law touch him. He's stealin' a cop. Before he drops, he pulls the shots. He's peelin' his top. He only aims for the head and throat to dead your ghost. Hit you with lead close and watch your threads explode and leaves you with a red note and thoughts exposed."
The next page is page 88 on the top left corner and it starts: "Streets of Rage," underlined, up top:
"I'm the [person] to drive-by and tear your block up, leave you, your homey and neighbors shot up, chest, shots will have you spittin' blood clots up. Go ahead and play hard. I'll have you in front of heaven prayin' to God, body parts displaying the scars, puncture wounds and bones blown apart, showin' your heart full of black marks, thinkin' you already been through hell, well, here's the best part. You tried to lay me down with you and your dogs until the guns barked. Your last sight you saw was the gun spark, nothin' but pure dark, like Bacardi. Dead drunk in the bar, face lent over the wheel of your car, brains in your lap, tryin' to comprehend what the [expletive] just tore you apart, made your brains pop out your skull. So, rest like your bitch just sucked you off. You tried to get me, but my guns talked first. Got you in a hearse, face up in a church, with a clay-made face and an R.I.P. shirt. Thought I was a [expletive] until my guns lifted your skirt. Now, who's the real bitch? My semi-autos keep long clips. Teach gymnastics on how to lift and flip your ribs and your house and rip your kids, catch your Moms on the late night and split her wig. The streets of rage, you end up in the cage or grave. Block war for the raw where no lives are safe; the guns go off and many [people] die for cake."
The next page is page 89 on the right-hand side and it's also entitled — titled up top, "Streets of Rage" and underlined.
"[People] run around with a vest on they chests until the bullets enter they neck and exit they pecs. Clappin' the Tech, now your block's a track meet, neighbors dashin' for steps and snatchin' kids to their breasts. Take dudes out the game with two Tech's clips are the ref. I'll light your crib up with a Molotov, watch you run out the front door and hit ya' with the Callos — Callosnicroff. Bent over the Smirnoff — Schear — Schearinoff, clutchin' my balls, watchin' you fall, blowin' your mother [expletive] limbs off you. It's got the gall to talk loose and try to brawl. It's a whole new war game in the city where [people] die for dice games, ice chains, go to war with the Feds, and let the [expletive] pipes sing. Push or get pushed is the reason why we light things and block battles shatter the night scene, and lives cease young broads by the age of 19. Got five seeds, young boys guardin' the block hard until light's seem like night trains, I-95 with the white thing and trip beam, [people] die for six scenes and big dreams. So, run around with a vest on your chest. I got bullets that'll enter your neck and exit your pecs, squeezin' the Tech, turn blocks into track meets. Neighbors dashin' for steps, snatchin' kids to their breasts, takin' [people] out the game with two Techs, my clip's the ref (gun cocks, auto fire). The locker room is death."
The next page is numbered 105 at the right — top right-hand corner. The title "Murda," -U-R-D-A, is underlined at the top.
"On the block, I can box you down or straight razor ox you down, run in your crib with the four pound and pop your crown. Checkmate, put your face in the ground. I'll drop your queen and pawn, [expletive - expletive] wastin' around. They don't call me Threat for nothin'. Prick, I'll take your town and flood it with more white than the face on a clown. Threat is a menace that will serve slugs just like tennis ace you dudes. I'm the hood. I'm the hood Sampras. Not a fifth and a bad chick. Like Alyssa O'Neill with the .380 Steel; a knife game is nice with the wheel. Won't hesitate to push your brains right with the steel at night on the block, getting' change off the pills. Comes home just to give brains to real like abandoned orphans, loves to raise the steel and finger [expletive] the trigger dumpin' on [person] back to back slumpin' you all. [People], I've got 44 long just to pump y'all. [People] full of hot hollows. I'm a hard act to follow. Put one in your neck and make it hard to swallow. After you die, I'll go to your Mom's house and [expletive] her until tomorrow and make ya' little brother watch with his face full of sorrow. I'm that boy who didn't give a [expletive]. I lust to hear the guns bust. (click, click, boom). [People] duck or take a trip in that black bus. Ya' soul rise like weed in black dust. I ain't no stranger to danger, friend or foe, acquaintance or stranger, I'll bang you."
At the bottom, it says, "times two" on the left side of the page and then:
"You [people] ain't ready for me, ready for me, ready for me, ready for me, ready for me. You [people] ain't ready for me."
The next page is number 111 at the top right-hand corner:
"You dudes is lame, playin' tough by callin' my name. You think it's a game until I come and speak with the flame and take ya' blood. Let my slugs shake in your blood. I'm breakin' you, [person]. I got nothin' but gangster and thugs to touch you all. How you want it? Double lot or sawed? I'm takin' you off, see? You [person] buckle the — the wall. Squad One rushin' you off, touchin' you soft. Electric shock jumpin' your heart silence assassins, semi-auto spit [person]. I doubled the action, Threat. Spit [person], I double your back. Spit, blacken your vision. I stay cuttin', packin' — packin' the scissors, takin' your fame, the Mac, forsaken your name. Two G's, the reaper done came, I rapen your dame. Boil the water, drop the powder. I'm bakin' the cane. For 2 G's I pop the yo, I'm shakin' your frame. When I clap them thin's, when it be the Mac or the Gauge, I'll remove your waves and put them on your Dame so she can see you think. You [people] can't [expletive] with Threat, with my hands on a Tech. You [people] gone [expletive] with death."
The next page is number 117 at the top right-hand corner:
"You pricks goin' to listen the Threat tonight. Cause you feel when I pump this P-89 into your head like lice. Slugs will rush ya' life twice, like handlin' dice. Eighty slugs pass ya' D, like Montana and Rice, that's five hammers, 16 shots to damage your life, leave you faggots all bloody like Passion of Christ. When I blast the pipe, I crack the night. Run in your cribs like Feds. So, get them answers right. Where's the cash and stash of white? I got ya' wife tied to the bed and at her throat is a knife. I came for the change, coke, water and ice. Don't make me hit you with stun gun or go in the other room, lace ya' Mom with these dumb-dumbs. Slump your whole family and make you watch they [expletive] brains run like Mo' Green gettin' chased with guns. I'm tired of crumbs. I'm tryin' to eat steak and eggs with a side of yum on the block with a bottle. Gettin' high with a bum, my young dudes with pies in the slums." Q. Now, would you — can you continue on to S-52, which begins with "Free Style?" A. Yes, sir. At the top, left-hand corner is the number eight, circled and the words "Free Style" at the top of the page underlined.
"You [people] really don't want to put your life on the line. Beef with Threat, you get the knife or the 9. All you see is bright lights flash like your life's on the line. But my name ain't Pavarotti — Pavarotzi. I'll box you — I'll box you in, but I'm not Rocky. I stand strong, but I'm not cocky. When I come for you, you'll not stop me and put you on the wall like it's block hockey; Leave you smokin' like a hot pot. I suggest that you not rock me, cause head shots will leave you top sloppy and brains leakin', frame tweakin', and your family in the church talkin' to the main Deacon. It's quiet time for you [expletive] lames speakin' and I stay dumpin' while you [expletive] lames stay reach — reachin'. With guns big enough to spray regions and lay you and your squad on the same cement. You [people] [expletive] with a deranged demon that will change your breathin' and leave your body with a strange feelin' from holes the same size arranged ceilin'. I move swift like a brave villain who falls back after eight killin's. My clumsy fin'er keeps the eight spillin' to empty out all your face — all your face fillin'. To push you pricks is such a great feelin', like sendin' you a tape of me [expletive] your wife in front of your eight children, [expletive]."
Next page, number 29, top right-hand corner, the word, "Leakin'" up top, underlined.
"Yo, look in my eyes. You can see death comin' quick. Look in my palms, you can see what I'm gunnin' with. I play no games when it comes to this war shit. If death was a jacket, you would see how the floor fits. Crackin' your chest when I show you how the force spits, makin' your Mother wish she would have had an abortion. Make no mistakes, I'm the devil made in portions, destroyin' careers like Paul's maiden with porches. Now, your broad love me, after five minutes of floor sex. I'll make her stomp you out with five flavors of GOR-TEX. You think you had Jedi, but haven't felt the force yet. My slugs make you thinner like smut broads in corsets. So, tell me, what's the reason you sit down and pee. I'm tryin' to warn you [people] here that Threat is a beast. We can look at your stats. Mike Game [expletive] deceased. So, don't look at me and be deceived. I'll cut your life short like altered states shirts and sleeves. I stand up and dump, never duck and squeeze and I'll leave you pricks Daffy with the duck disease. Your beak all twisted when you [expletive] with me. I know you [people] want to kill me, but you're stuck with me. Cause listen, Canon, when beams on you, the team's on you. Slugs drill in your chest, spillin' (red) cream on you." Red is in parentheses. "Leavin' you wet like drunks" — I can't read those one word — and then it says, "on you and purposely peed on you."
The next page is number 45 at the top right-hand corner:
"You may see me in a black Caddy on black rims fitted low and black muzzle on a Mac-10. Clip full of them black rhinos in that gold skin. Rubber grip held tight with some black gloves, blood in my eyes. Intent is to murder and crack thugs I keep slugs like mat — menage a trois, they lack love. So, wet you do dirt [people] and turn you back to mud. When I crash your mug, like the Shaq attack, the Mac is back. Slugs will smack your cap. When I am gunnin' you cats, bullets like Westbrook, they'll run in your back. An if your son — and if your son in your cap, he can get one in his traps. I'll send you B.M. an early present. Your son in a sack, with a hole in his neck, the same size of my pecs. In block wars I am a vet. In the hood, I am a threat. It's written on my arm and signed in blood on my Tech. I'm in love with you, death. Just call me the soul searcher when huntin' your breath."
The next page number is 47 at the top right-hand corner:
"I am the hit man sent in to smash you lames, thrash you frame and break it down like crashin' planes. Now, you the Trade Center with a bashed in brain, when I clap them thin's, whether Mac or the Gauge."
The next page is number 85 on the right-hand corner and the words, "I Can Tell You," underlined and "Free Style" underlined:
"I can tell you about blocks of coke, nine young boys in three shifts on the block with dope. Or I can tell you about glocks and smoke, or the SR-15, big shit on the tops of scope. Or I can tell you about the riding — the riding broads. A — a cop chest stuffing packs to a double D bra. Or I can tell you about a city of mobsters and for the price, I can get you high, put up in boxes. Or I can tell you about block wars, Nossberg marble pumps or them semi-automatic SIG Sour blocks fours. That'll pop you through doors and turn your crib to a full family dead and gone block morgue. And I got more for a full fledged SWAT war. [Expletive] body armor. I'm a rocking pop, mother [expletive], until my spots is gone. I can tell you about hot whips, big rims, little tire, gun ports, fully equipped. T.V.s, D.V.D.s and big Callys to spit. Or I can tell you about these stick-up broads, bad bitches out for the change that'll get you for it with 380s and they Coach bags, razors and they tracks will leave you somewhere leakin' bad, depending on Kojack. Or I can tell you about these shot pushers that won't hesitate to haul off and let a few shots push you. Or I can tell you about life's high stakes." And at the bottom is: "[people] raisin' the murder rate."
The next page is number 105 at the top right-hand corner: "My life is like a tumor in the lungs of cancer patients. It can get cut short. [Expletive] the new rules of engagement. This street shit is real, like shoes hittin' the pavement. That's why my trigger finger and slugs leave [people] caved in. I never discriminate between thugs, killers and brave men. Anyone can get it. When my slugs exit the chamber, I keep you [people] fallin' when I mark my destination. I've been chasin' death for years. He keep escaping. So, I'm a keep on livin', move with hard hitters. Or you can get cut the [expletive] up, no pull-up, push-up or dippin'. But I'm back to the block now with bigger guns, extended clips and then black towels. You want a beef with Threat Dawg? I never back down. We can box in the street or pull the Macs out, get your jaw broke or get your head rocked out. So, put you face mask on and your hard hat, cause trust me, Dawg, I ain't aimin' where your heart at. I'm tryin' to hit you where senses, your thoughts at. Clear your mind of speculation you had of real threat. I'll send your life on vacation with a steel Tech or and all black Mac-40, make you feel that."
And that's the end of it, sir.
ALVAREZ, J.A.D., dissenting.
I respectfully dissent from the conclusion reached by my colleagues with regard to the admissibility of the rap lyrics in this case and would, for the reasons that follow, affirm defendant's conviction for first-degree attempted murder, N.J.S.A. 2C:5-1(a)(3) and 2C:11-3(a)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five); and third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count six). I concur with the majority's conclusion that there is no other basis for reversal.
The facts, summarized from the trial testimony, bear repeating. The victim, Lamont Peterson, regularly dealt drugs on behalf of Brandon Rothwell when in September 2005 defendant joined the "team." As Peterson described it, although his own role was strictly sales, defendant sold drugs and acted as "muscle," resolving conflicts between Rothwell and others. Once defendant became involved, Peterson's relationship with Rothwell began to deteriorate. In turn, Peterson began to withhold some of the proceeds from profits owed to Rothwell and refused to return a Tech-9 machine gun that Rothwell had given him.
On the day of the shooting, November 8, 2005, defendant repeatedly called Peterson attempting to arrange to meet so that the two men could "talk and smoke, drink." Peterson declined until defendant said a drug deal had been arranged in Willingboro at around 10:00 p.m. Defendant phoned Peterson several times, checking on his location, as the hour approached. During the last phone call, Peterson told defendant that he was just "pulling up."
When Peterson arrived, he saw defendant standing in the bushes with Rothwell, and saw defendant pull a gun and point it at him. Although Peterson recalled seeing Rothwell standing to the side, he did not remember any other details. He was later found lying underneath a car, suffering from multiple gunshot wounds.
At the hospital, Peterson refused to name the shooter because, he explained at trial, he wanted revenge and the "code of the street" required him not to "snitch." After speaking with his mother, however, who was encouraged by police to convince her son to cooperate, he eventually identified defendant. He also told police that Rothwell had been present and was most likely involved because he was owed money and wanted his weapon returned.
While on the stand, Peterson acknowledged making conflicting statements regarding Rothwell's involvement. On cross-examination, he also admitted drinking hard liquor and consuming PCP that evening. Peterson insisted, however, that he had always named defendant as the shooter and never told anyone, including his cousin and Rothwell's girlfriend, Alexandria Ross, that he doubted that defendant was the shooter. Peterson is paralyzed from the waist down and confined to a wheelchair due to his injuries.
Defendant established that within the same time frame, Peterson had been in an altercation with another drug dealer in the area, Joseph Ward, because Ward had robbed Peterson's cousin, Christopher Ross. After that incident, Ward's car was shot and Ward "had a beef" with Peterson. When asked, Peterson said, "if you have a beef with somebody and somebody's car gets shot up[,]" then the "code of the streets" requires that you "[g]et back at them." Nonetheless, he reiterated that it was defendant who shot him, not Ward. Defendant elicited testimony from the investigating officer that Ward and his cohorts were in the vicinity when the shooting occurred.
Lieutenant Joseph Dey of the Willingboro Police Department also testified at trial. He spoke to Peterson inside the ambulance at the scene, and said Peterson seemed afraid and "very nervous." When asked who shot him, Peterson responded, "Devonte," and added that Devonte had arranged to meet him at the location of the shooting. Peterson also said that Rothwell "h[u]ng out with" Devonte.
Defendant's first name is "Vonte."
Burlington County Detective Michael Wiltsey subsequently searched the Malibu belonging to defendant's girlfriend, Victoria Carter, and recovered, among other things, three notebooks from the rear seat and a Guns and Weapons Magazine. Wiltsey read from the notebooks to the jury portions of extremely violent rap lyrics written by defendant. The lyrics identified defendant as "Threat," a word tattooed on defendant's left arm.
Defendant's brother, Amar Dean, a music producer, said that defendant composed rap lyrics under the name "Real Threat," and he identified the handwriting in the notebooks as belonging to defendant. Dean explained that hardcore rap music, such as that authored by defendant, had "nothing nice about it[,]" and during his testimony he read to the jury similar violent and graphic rap lyrics from artists such as 50 Cent, Snoop Dogg, Trick Daddy, and Dion.
Prior to the first trial, the court conducted an Evidence Rule 404 hearing on the State's application to admit defendant's work, written over a span of time from years prior to months before the shooting. The trial judge found that the lyrics were relevant, tending to prove the State's theory of the case, namely, that defendant shot Peterson because he was Rothwell's "enforcer[,]" exacting retribution because the victim had stolen from Rothwell's profits and refused to return Rothwell's weapon, and were material to the issue of defendant's motive.
After applying the four-part State v. Cofield test, the court admitted the rap lyrics. 127 N.J. 328, 338 (1992). Additionally, the judge admitted the Guns and Weapons Magazine cover, which had been found in defendant's girlfriend's car. The judge relied on State v. Koskovich in reaching his decision to admit the evidence. 168 N.J. 448 (2001).
Having determined that the rap lyrics were material and admissible, the trial judge then redacted them. He admitted descriptions of defendant's use of firearms to inflict injury and shootings in a fashion similar to the wounds inflicted on this victim, in the head and neck. The judge also admitted lyrics in which defendant referred to himself as "Threat."
In closing, defense counsel reminded jurors that songs from professional rap artists were a "legitimate part of the culture . . . . People are listening to it. Many, many people are writing it and producing it. It has nothing to do with the shooting in this case." Defense counsel added the following:
Violence is -- it pervades our culture now. There are violent movies. There are violent books. There's violent T.V. shows. Does that mean as a producer of a movie, say
Quentin Tarantino, those particular violent movies that he has now the motive because he produces those types of movies, to go out and shoot somebody? It's absurd! That's just the way the culture is. That's how these people make their living. It has nothing to do with motive to shoot somebody. That's just a smokescreen, a desperate ploy by the State to throw this up at you, to show that [defendant] had violent motives and violent intents. That's absurd!
On appeal, defendant's principal contention is that the admission of the rap lyrics constituted reversible error because they included multiple references to killing, were replete with offensive racial epithets and violent imagery, as well as graphic language. In other words, that their probative value was outweighed by the risk of undue prejudice.
It is undisputed that N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." The State may not present evidence of prior bad acts in order to convince the factfinder that because of a defendant's character, it is more likely than not that he committed the crime for which he is on trial. State v. Weeks, 107 N.J. 396, 406 (1987). Nonetheless, "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b). Decisions regarding the admissibility of such evidence are reviewed under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483 (1997).
It is my view that the trial judge correctly analyzed the question of admissibility pursuant to the four-part test set forth in Cofield, supra, 127 N.J. at 338. Point by point, he examined whether: (a) the evidence of the other crime was relevant to a material issue; (b) was similar in kind and reasonably close in time to the offense charged; (c) was clear and convincing; and (d) had probative value not outweighed by its apparent prejudice. Ibid.
First, the judge found the rap lyrics were relevant to a material issue, in other words, that they tended "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The evidence made "the inference to be drawn more logical" that defendant shot Peterson because he was Rothwell's enforcer. When motive or intent is to be proven, evidence will be admitted "[t]hat includes evidentiary circumstances that 'tend to shed light' on a defendant's motive and intent or which 'tend fairly to explain his actions,' even though they may have occurred before the commission of the offense." State v. Covell, 157 N.J. 554, 565 (1999) (quoting State v. Rogers, 19 N.J. 218, 228 (1955)). Certainly in this case, the rap lyrics shed light on the State's theory that defendant acted as the muscle for Rothwell's drug distribution operation.
Under the second Cofield prong, the evidence generally must be similar in kind and reasonably close in time to the offense. Supra, 127 N.J. at 338. The challenged evidence, however, need not be exactly similar in kind to the offense charged because this prong "need not receive universal application . . . ." State v. Williams, 190 N.J. 114, 131 (2007). Here, the evidence described conduct similar to the offense charged; although in itself it was not "conduct that is  overtly criminal in nature but [is] nonetheless wrong or improper . . . ." Koskovich, supra, 168 N.J. at 482. Peterson's testimony dovetailed with the enforcer theme of the lyrics; he admitted that he had wronged Rothwell. Defendant's songs narrated events similar to the conduct which resulted in the charged offenses.
That some lyrics were written years prior to the shooting did not mandate exclusion. Unlike other examples of bad acts, music lyrics are part of a continuing body of work produced by the composer. And they were important enough to defendant that he kept the older verses together with more recent ones.
That some of the lyrics were older is not itself fatal. For example, evidence of unrelated crimes committed two-and-one-half years prior to the event for which a defendant is indicted has been found to satisfy the temporal requirement of the second prong. Covell, supra, 157 N.J. at 567. The trial judge's conclusion that the evidence was both descriptive of similar conduct to the charged offense and close enough in time to be admissible is therefore reasonable.
The third prong requires that the evidence be clear and convincing. Cofield, supra, 127 N.J. at 338. Clear and convincing evidence has been defined as "that which 'produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established,' evidence 'so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'" State v. Hodge, 95 N.J. 369, 376 (1984) (quoting In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), modified, 90 N.J. 361 (1982)). Given that these were words written by defendant, the evidence was clear and convincing.
The fourth prong of the Cofield analysis incorporates the N.J.R.E. 403 balancing test and requires that the probative value of the evidence not be outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338. Evidence claimed to be unduly prejudicial "can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." Covell, supra, 157 N.J. at 568 (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). The admissibility of such evidence falls within the broad discretion of the trial judge. Id. at 568-69. The judge correctly exercised his discretion.
The key alternative scenario defendant advanced at trial was that the shooting was actually committed by another drug dealer, Ward, with whom defendant had an ongoing quarrel. Defendant's theory was that Peterson knew Ward shot him but for reasons best known to him, was deliberately identifying defendant, the wrong man, and not identifying Ward as the shooter.
The lyrics do indeed, as the majority states, give additional weight to Peterson's testimony about defendant's motive. But they do more than that — they also explain why defendant, theoretically part of Rothwell's sales team and a cohort of the victim, would have targeted him. Peterson's testimony makes sense only if defendant was acting as Rothwell's enforcer, and exacting revenge against a member of Rothwell's team who had stepped out of line. Thus the probative value of the lyrics was so great as to outweigh the potential for prejudice.
I concur with the majority that the redaction of the material was insufficient — for example, the jury heard verses, entirely immaterial to the issues in the case, in which defendant described violent sexual conduct. But the impact of such irrelevant material is minimal, and its admission harmless error, when compared to defendant's highly relevant and admissible graphic descriptions of shootings.
The admission of this otherwise prejudicial irrelevant material must also be viewed in the context of this trial, where the victim admitted he was an armed drug dealer who worked side-by-side with his assailant on behalf of Rothwell. Given the proofs, the jury could not have perceived anyone involved as persons of good character. This factor weighs heavily towards the conclusion that the admission was indeed harmless error.
Furthermore, defendant's brother's reading of equally violent and graphic rap lyrics available commercially for public consumption minimized any potential for prejudice. For all these reasons, the probative value was not outweighed by prejudice, and the admission of the irrelevant material was harmless error.
Moreover, the trial judge's analysis of 404(b) was guided by Koskovich, which is controlling. In that case, the State moved into evidence violent song lyrics written months prior to the charged murder. The Koskovich lyrics stated: "Weapon's spot. Anyone else, we all kill you. Joe's spot. Anybody else, he kill you too. Tom's spot. Anybody else, he kill you too. Jason's spot, anybody else, I kill you. Cocoa Puff's spot, I'll kill you." 168 N.J. at 472. The trial judge admitted the lyrics because they established defendant's "obsession with killing people. . . ." Id. at 480. The Supreme Court affirmed, finding that the lyrics were highly relevant, and highly probative of the defendant's motive. See id. at 481.
In Koskovich, the first prong of Cofield was met because the lyrics demonstrated defendant's intent. Id. at 484-85. They were not admitted to prove that defendant was a "bad person[,]" but to demonstrate that he had a long-standing interest in firearms and was consumed by images of violence. Id. at 485.
The Court also held that the lyrics were "sufficiently similar in nature to the crimes for which defendant was charged" thereby meeting the second prong. Ibid. While the violent lyrics "[did] not compare perfectly to an actual killing or robbery," the Court found a "logical connection" between that evidence and the crime charged. Ibid. Also, the temporal requirement was satisfied because the writings were recovered from the defendant's bedroom shortly after the killings. Ibid.
The third prong of the Cofield test was satisfied because the evidence was clear and convincing. It was undisputed that the items found in the defendant's bedroom were written by him and clearly expressed his preoccupation with killing. Id. at 485-86.
The lyrics were important to the State's theory of the case, establishing defendant's motive for the killing. Id. at 487. Balanced against the potential for prejudice, they were "not so inflammatory as to distract the jurors from performing their jobs fairly and in a deliberate fashion." Ibid. The fourth prong was thereby met.
In light of Koskovich, this trial judge's consideration of the Cofield factors warranted admission of the redacted rap lyrics, despite the fact that the material is significantly more disturbing than that found in Koskovich. These lyrics demonstrate defendant's long-standing interest in firearms and obsession with killing, described conduct similar to the crime at issue, were clear and convincing, and had probative value that outweighed the potential for prejudice. The public's acceptance of violent imagery, sold in the form of music, video games, and the like, has dramatically increased in the years since Koskovich was issued. It has altered the landscape in which the writings should be viewed.
Many federal and state courts have reached the same conclusion as did the trial judge, admitting violent and graphic rap lyrics where relevant to a material issue. In Cook v. State, 45 S.W. 3d 820, 821 (Ark. 2001), for example, the defendant was charged with felony murder and robbery. Lyrics were admitted that included the following lines:
Look out 4 this muthaf**n killa on the for realla n**a, you bets to give up the strillaThe Arkansas Supreme Court found that the prejudicial effect of the lyrics did not outweigh their probative value because they established the defendant's intent to commit aggravated robbery. Id. at 823.
or getta, muthaf**n slugg assigned to yo a**
or you can do the s**t the easy way, give up the cash as bad as my muthaf**n a** is doin,
you refuse, you loose, you snooze, you made the news d**n, dude you cruel, that's what my peoples say
I ain't cruel, I choose, to be on a paper chase gone of that hay, all about my feddy.
If I ain't got no strapp, my second choices my machete
I'm ready to do yo a** up n**a
And give up, give up, the f**n strilla, 4 realla . . . .
[Id. at 822.]
Similarly, in Bryant v. State, 802 N.E.2d 486, 498 (Ind. App. 2004), the defendant was charged with the murder of his stepmother, who had been strangled and placed in the trunk of a car. The following lyrics were admitted as evidence of his intent: "Cuz the 5-0 won't even know who you are when they pull yo ugly ass out the trunk of my car."
In a Delaware case, the defendant's rap lyrics were admitted despite including a statement that he wanted to put his enemies' heads on a shelf. Joynes v. State, 797 A.2d 673, 677 (Del. 2002). After engaging in other crimes evidence analysis, that state's Supreme Court found the admission at trial to pass muster. Ibid.
A relatively recent law journal article exhaustively analyzes the admissibility of rap lyrics throughout the country, stating that "[o]verwhelmingly, courts admit defendant-composed rap music lyrical evidence." Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 9 (2007). Rap lyrics are deemed relevant on several grounds, including direct evidence of an element, such as intent or motive. Ibid. Indeed, although defense attorneys frequently object to the use of rap lyrics, trial courts admit the evidence, and appellate courts, in turn, rarely find error in such decisions. Ibid.
Turning now to the adequacy of the judge's charge, certainly, "once the prosecution has demonstrated the necessity of the other-crime evidence to prove a genuine fact in issue and the court has carefully balanced the probative value of the evidence against the possible undue prejudice it may create, the court must instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 340-41. In accordance with the language in Cofield, the judge here instructed the jury as to the limited use of the evidence both prior to the lyrics being read, and again in the final charge. He said before the evidence was admitted:
[T]he State will introduce evidence that the defendant composed certain rap lyrics. The lyrics will be presented to you, the Jury. Normally, such evidence is not permitted under our Rules of Evidence. Our rules specifically exclude evidence that a defendant has committed other acts when it is offered only to show that he has a disposition or ten[de]ncy to do wrong and, therefore, must be guilty of the charged offenses.He included the following in his closing charge:
Before you can give any weight to this evidence, you must be satisfied that the defendant committed the other act. If you
are not so satisfied, you may not consider it for any purpose. However, our rules do permit evidence of other acts when the evidence is used for certain, specific, narrow purposes.
In this case, the evidence is produce by the State for the limited purpose of proving motive or intent. The State' theory of the case is that the victim was shot as a result of a drug debt. The evidence is introduced to support that theory of the case. Whether this evidence does in fact demonstrate motive or intent is for you to decide. You may decide that the evidence does not demonstrate motive or intent and that - - and is not helpful to you at all. In that case, you must disregard the evidence.
On the other hand, you may decide that the evidence does demonstrate motive or intent and use it for that specific purpose only. However, you may not use this evidence to decide that the defendant has the ten[de]ncy to commit crimes or that he is a bad person. That is, you may not decide that just because a defendant composed . . . rap music, he must be guilty of the present crime.
I have admitted the evidence only to help you decide the specific question of motive or intent. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he composed rap music.
No[w], let me also give you an instruction as to how you are to weigh the evidence involving the rap lyrics. The State introduced evidence that the defendant composed certain rap lyrics. The lyrics have been presented to you, the Jury. Normally, such evidence is not permitted under our
Rules of Evidence. Our rules specifically exclude evidence that a defendant has committed other acts when it is offered only to show that he has a disposition or a ten[de]ncy to do wrong, and therefore, must be guilty of the charged offenses.
Before you can give any weight to this evidence, you must be satisfied that the defendant committed the other act. If you are not so satisfied, you may consider it - - you may - - strike that. If you're not satisfied, you may not consider it for any purpose. However, our rules do permit evidence of other fact - - acts when the evidence is used for certain, specific, narrow purposes.
In this case, the evidence is produced by the State for the limiting purpose of proving motive or intent. The State's theory is that the victim was shot as a result of a drug debt. This evidence is introduced to support that theory of the case. Whether this evidence does in fact demonstrate motive or intent is for you to decide. You may decide that the evidence does not demonstrate motive or intent and is not helpful to you at all. In that case, you must disregard the evidence.
On the other hand, you may decide that the evidence does demonstrate motive or intent and use it for that specific purpose only. However, you may - - may not use this evidence to decide the defendant has a ten[de]ncy to commit crimes or that he is a bad person. That is you may not decide that just because the defendant composed rap music, he must be guilty of the present crime.
I had admitted the evidence only to help you decide specific questions of motive or intent. You may not consider it for any other purpose and may not find the defendant
guilty . . . simply because the State has offered evidence that he composed rap music.
Accordingly, I believe that the trial court correctly assessed the Rule 404(b) factors and instructed the jury. I would affirm.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION