Parental Discretion Advised: The DCCA Grapples with the Admissibility of Rap Lyrics and Other Issues in 9-Month, 6-Person Conspiracy Trial

 Note: This is our second installment on the 232-page decision that the DCCA issued in this case last November.  The first installment was posted on March 1.

Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver v. United States (decided November 19, 2015). 

Players:  Associate Judges Glickman, Blackburne-Rigsby, and Thompson. Per Curiam opinion.  Concurrence in part, dissent in part by Judge Glickman.  Judith A. Lovelace for Mr. Tann.  Thomas T. Heslep for Mr. Cooper.  Deborah A. Persico for Mr. Arnette.  Steven R. Kiersh for Mr. Rushing.  PDS for Mr. Harris.  Stephen W. Riddell for Mr. Beaver.  Trial Judge: Henry F. Greene.

Background: Following a nine-month jury trial, appellants were convicted and sentenced for conspiring “to obstruct justice and to assault and kill anyone whose interests were contrary to [appellants] and their associates” and a host of completed crimes, all stemming from appellants’ membership or participation in a gang known, among other names, as the “22^nd Street Crew” (hereinafter, “the Crew”).  The crimes allegedly completed in furtherance of the Crew’s conspiracy included the 2004 murder of Terrence Jones and assault of Richard Queen, the 2006 murder of James Taylor and assault of Bernard Mackey, and obstructions of justice related to the Jones/Queen and Taylor/Mackey incidents. 

The issues analyzed in this post are numbered according to the section numbers used in the opinion.

Issues VII(A): Whether the evidence was sufficient to make out a single conspiracy involving all six appellants.  Whether the object of the conspiracy was lawfully constrained and defined in the indictment. 

Holding VII(A): Yes and yes. Because of the way the indictment was worded, the Court considers whether it established each appellant’s knowing participation in an agreement either to obstruct justice or assault or kill those whose interests were contrary to the defendants and their conspirators.  Testimony established that membership in the Crew was “a way of life” that implied certain reciprocal rights and responsibilities, including the need to retaliate against “snitches” and rival drug dealers.  (pp. 22-25).  Appellants’ participation in drug dealing and the violent overt acts in the indictment established their knowing participation in the conspiracy.  (pp. 25-34).  A conspiracy’s purpose should not be defined in too narrow terms.  The conspiracy count adequately apprised appellants of the scope and timing of the alleged conspiracy and allowed them to prepare a defense.  (pp. 34-35).

Issue VIII(E): Whether the trial court erred in admitting violent rap lyrics that referenced murder and drug-dealing, apparently authored by Mr. Rushing, Mr. Tann, and a third, unindicted person (Michael Smith), along with a social media profile authored by Mr. Beaver. 

Holding VIII(E):  No.  First, the rap lyrics bore sufficient indicia of authenticity in that they were primarily in the first person and purportedly autobiographical.  (pp. 127-29).

Second, testimony showed that Michael Smith was a member of the predicate conspiracy at all times relevant to the hearsay exception for co-conspirator statements.  (pp. 129-30).

Third, the statements at issue furthered the conspiracy by promoting the stature of the Crew within the community and spreading its messages of violence and intolerance toward would-be rivals and informants.  (pp. 130-32).

Fourth, as a matter of first impression in the DCCA, the trial court did not abuse its discretion in determining that the prejudicial effect of this content did not substantially outweigh its probative value, given the “specificity with which the lyrics describe the facts surrounding the offense(s) charged,” how hotly contested the conspiracy charge was, and the fact the trial court culled the government’s evidence for unfairly prejudicial content.  (pp. 133-35).

Issue VIII(F):  Where the jury had already found Mr. Harris and Mr. Arnette guilty of conspiring with Mr. Tann to, among other things, murder, but had not yet found Mr. Harris and Mr. Arnette guilty on separate aiding-and-abetting charges in the Taylor/Mackey and Jones/Queen incidents—

Whether the trial court erred in denying Mr. Harris and Mr. Arnette’s motion for mistrial or Mr. Harris’s motion to voir dire the jury, when Mr. Tann stood up and stated,

I don’t see how I can get found guilty and what type of court is this?  I wasn’t even there. . . . [N]owhere near . . . I get found guilty and I’m innocent.  God going to challenge y’all for this.  I’ll see y’all in heaven. . . .  I’m innocent.  How the fuck I get found guilty? . . .  That’s fucking—that’s crazy[,]

(pp. 135-39).

Holding VIII(F):  No.  Even taking as true the alleged juror statements that Mr. Tann had made a “death threat” to them and had similarly threatened witnesses throughout the trial, Mr. Tann’s statements did not expressly implicate his codefendants, the court issued a sua sponte curative instruction after his outburst, and no juror contacted the court with any concern following the outburst.  The trial court properly considered the risk that further inquiry would magnify a non-issue.  The cases cited by Mr. Harris, where the court has called for voir dire on juror bias, have all turned on facts outside the court’s direct knowledge, as opposed to Mr. Tann’s outburst (and the jury’s reaction), which happened in open court.  (pp. 141-42).

Of Note:
The outcomes of the issues summarized above turn on the particular facts of this case and therefore, practitioners grappling with similar issues in their own cases will want to study the opinion carefully.  
 

Such caution in interpreting and applying the Court’s opinion applies with great force to the issue of whether the trial court abused its discretion in determining that the prejudicial effect of admitting the evidence of violent rap lyrics did not substantially outweigh their probative value.  

In the Court’s own words—

While there is no abuse of discretion on this record, we could easily envision a case where lyrics, poetry, or other statements in a form traditionally understood to be artistic expression were not sufficiently specific to the charged crime so as to have such important probative value.  Evidence that doubles as a type of art will often be a confusing mixture of truth and fabrication.  Therefore, trial courts must very carefully scrutinize such materials and statements for unfair prejudice.  (p. 135 n.6).  WC

Read full opinion here.

 

The (new) law of unintended consequences: DCCA announces a new test for aiding and abetting

Note: Last November, the DCCA published a 232-page opinion deciding the consolidating appeals arising from a nine-month jury trial in 2008-2009.  The Court addressed multiple issues (it's never a good sign when an opinion has an index); we'll cover the highlights in two installments.

Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver v. United States (decided November 19, 2015).

Players:  Associate Judges Glickman, Blackburne-Rigsby, and Thompson. Per Curiam opinion.  Concurrence in part, dissent in part by Judge Glickman.  Judith A. Lovelace for Mr. Tann.  Thomas T. Heslep for Mr. Cooper.  Deborah A. Persico for Mr. Arnette.  Steven R. Kiersh for Mr. Rushing.  PDS for Mr. Harris.  Stephen W. Riddell for Mr. Beaver.  Trial Judge: Henry F. Greene.

Background: Following a nine-month jury trial, appellants were convicted and sentenced for conspiring “to obstruct justice and to assault and kill anyone whose interests were contrary to [appellants] and their associates” and a host of completed crimes, all stemming from the appellants’ membership or participation in a gang known, among other names, as the “22^nd Street Crew” (hereinafter, “the Crew”).  The crimes allegedly completed in furtherance of the Crew’s conspiracy included the 2006 murder of James Taylor and assault of Bernard Mackey. (pp. 5-6).

Mr. Taylor and Mr. Mackey were shot when several Crew members opened fire upon a third person, Omar Harrison.  Mr. Harrison had been in a fight with Ashley Tyndle, the girlfriend of Crew member Alphonce Little. Mr.  Harrison had allegedly slapped Ms. Tyndle and challenged her to “go get” Mr. Little.  When news of the fight and the challenge spread, Saquawn Harris and Michael Tann converged on Mr. Harrison from different directions and opened fire.  After the first wave of shots, Robert Foreman, another alleged Crew member (who was not a defendant in this trial) who was standing across the street and away from Harris and Tann, opened fire.  Mr. Taylor and Mr. Mackey were shot standing near the truck that Mr. Harrison used to narrowly escape.  (pp. 10-11). 

Mr. Taylor died from a single gunshot to the head.  Alphonce Little testified that Mr. Taylor was not shot until after Mr. Harris had run out of bullets.  Mr. Little further testified that after the incident, Mr. Foreman claimed credit for killing Taylor.  There was no evidence linking Mr. Mackey’s wounds to any particular shooter.  The government conceded that neither Mr. Harris nor Mr. Tann was aware of Mr. Foreman’s presence either before or during the shooting.  Mr. Foreman had decided to join the attack upon seeing and/or hearing Mr. Harris and Mr. Tann open fire.  (pp. 11-12, 52-53, 68). 

Mr. Harris and Mr. Tann were indicted for the first-degree premeditated murder while armed of Mr. Taylor and the assault with intent to kill while armed (AWIKWA) of Mr. Mackey.  At trial, the government argued that Mr. Harris and Mr. Tann either were principals or had aided and abetted the commission of the offenses.  Regarding the latter theory, the government argued that Mr. Harris and Mr. Tann were guilty by intentionally associating themselves with the actual shooter at the time of the shootings and firing at Omar Harrison, thereby aiding the shooter.  (pp. 53-54).

The trial court refused Mr. Harris and Mr. Tann’s request to instruct the jury that, assuming Mr. Foreman had fired the shots that killed Mr. Taylor and wounded Mr. Mackey, they could only be guilty of aiding and abetting if they knew of Mr. Foreman’s presence and knew that by firing first, they were helping or inciting him to commit murder and assault.  Mr. Harris and Mr. Tann were further prevented from arguing that their ignorance of Mr. Foreman’s presence precluded their guilt as aiders and abettors.  On the contrary, the trial court instructed the jury that Mr. Harris and Mr. Tann could be convicted, despite their ignorance of Mr. Foreman’s presence, as long as they knowingly associated in the commission of the crime.  The jury found Mr. Harris and Mr. Tann guilty of the murder of Mr. Taylor and the AWIKWA of Mr. Mackey.  (pp. 54-55).

Issue: “[W]hether the aider and abettor must know of the presence and conduct of the specific principal and form the intent to help him or her with the commission of his or her crime, as opposed to [merely sharing] in the mens rea required to commit the crime itself.”  (pp. 62-63). 

Holding: No. The aider and abettor need not know of the presence of the principal in order to be guilty under an aiding-and-abetting theory as long as the aider and abettor, while sharing the mens rea of the principal, foreseeably incited acts by a principal who shared in their “community of purpose.”  “Community of purpose” need not involve an actual agreement to commit a specific crime, as long as there is some understanding, even if tacit, connecting the accomplice(s) and the principal.  (pp. 74-75 & n.27).

Here, the evidence allowed the jury to conclude that Mr. Harris, Mr. Tann, and Mr. Foreman shot at Mr. Harrison with the same intent and purpose: to kill him for his transgressions against an associate of the alleged Crew.  Mr. Harris and Mr. Tann purportedly knew that firing at Mr. Harrison would elicit the support of other Crew members, like Mr. Foreman, who shared the same basic interest in retaliating against Mr. Harrison.  Thus, Mr. Harris and Mr. Tann foreseeably encouraged a group that included the principal to attack Mr. Harrison.  (pp. 75-77). 

While the trial court erred by failing to require the jury to find a “community of purpose” between accomplices and principal and foreseeability of the principal’s conduct, this error was harmless.  Given that the jury found that Mr. Harris and Mr. Tann (and possibly Mr. Foreman) were engaged in a conspiracy, one of the alleged objectives of which was to kill persons with interests contrary to the conspirators, there is no reasonable possibility that it would have found that the men did not share a common purpose and design to murder Omar Harrison. (pp. 87-88).

Of Note: 

• The portion of the opinion dealing with this issue should be studied with care, as the test for aiding and abetting recognized by the majority —shared mens rea, “purposive intent,” foreseeability, and “community of purpose”— is open-textured and its applicability to any case is necessarily fact bound.  

• The majority relied heavily on the facts, outcome, and reasoning of several cases in deriving the test applied in this case.  (pp. 60-72).  Attorneys grappling with the majority’s test in the future should also study those cases carefully.  

•  The Court separately addressed sufficiency of evidence to prove aiding and abetting earlier in the opinion, when considering whether the government had proven that Michael Tann had aided and abetted the murder of Terrence Jones, while Antonio Arnette simultaneously aided and abetted Mr. Tann’s armed robbery of Richard Queen. Although the court relied on the novel aiding-and-abetting theory to affirm Mr. Tann and Harris’s convictions for the Taylor/Mackey incident, its approach to analyzing aiding and abetting in the Jones/Queen incident was murkier and at times contradicted the Taylor/Mackey approach.

In 2004, Mr. Jones and Mr. Queen were beaten and shot after trying to mediate a conflict between Crew members Donald Matthews and Kyara Johnson.  When word of Mr. Jones and Mr. Queen’s interference reached Mr. Arnette, Mr. Arnette sent Lannell Cooper toward Mr. Jones and Mr. Queen, telling him to bring his gun.  Mr. Cooper pointed his gun at Mr. Jones and said words to the effect of “pat [their] pockets.”  Mr. Arnette punched Mr. Jones and patted his pockets.  Mr. Cooper shot Mr. Jones once, when Mr. Jones resisted, and shot Mr. Jones again, killing him, as Mr. Jones tried to crawl to safety.  At about the same time, Mr. Tann and others beat Mr. Queen and went through his pockets.  Mr. Tann shot Mr. Queen in the back with a gun that he picked up off of the ground as Mr. Queen tried to run away.  Mr. Queen testified that his assailants took cash and cigars.  (pp. 8-9).

The court affirmed Mr. Tann’s conviction for aiding and abetting Mr. Cooper’s murder of Mr. Jones (and Mr. Cooper’s possession of a firearm during the murder) because Mr. Cooper had coordinated the pat-down of both Mr. Jones and Mr. Queen and the attacks on both men had happened close enough to each other (about ten feet apart) to allow the jury to infer a “knowingly organized (if not verbally articulated) venture” to allow the attackers to “better subdue, rob, and eventually shoot both [men].”  (p. 38-39).  Mr. Tann had aided in the venture by subduing Mr. Queen.  (pp. 39-40).  Thus, arguably, Mr. Tann’s conviction depended on evidence of his intentional participation in the joint venture, as opposed to foreseeably aiding a separate attack on Mr. Jones.  (p. 38) (noting “powerful evidence of a joint and coordinated effort”; contrasting with Mr. Tann’s argument that the attacks were distinct).  The court similarly affirmed Mr. Arnette’s conviction for aiding and abetting Mr. Tann’s robbery of Mr. Queen.  (pp. 46-47); see (p. 46) (“it was reasonable for the jury to have viewed the entire attack (including the robbery) as a coordinated venture”).  

However, the court vacated Mr. Arnette’s conviction for aiding and abetting the “while armed” element of Mr. Tann’s robbery of Mr. Queen, as well as Mr. Arnette’s conviction for aiding and abetting Mr. Tann’s possession of a firearm during the robbery because the evidence did not show that Mr. Arnette had “meaningful notice” that Mr. Tann would use a gun to complete his attack on Mr. Queen.   (pp. 47-49).  (Mr. Tann had picked up the gun only after the robbery began.)  Seemingly contradicting its own Taylor/Mackey analysis, the Court held that while use of a gun may have been reasonably foreseeable to Mr. Tann, “foreseeability alone is insufficient to support such a judgment of conviction under an aiding-and-abetting theory of liability.”  (p. 47).  The Court only confused matters further by suggesting later in the opinion that a different result might follow if Mr. Arnette had known that “Tann was using a gun to carry out the robbery,” and “decided to proceed with his involvement in the attack on Terrence Jones and Queen” anyway.  (p. 49).  This seems to imply that reasonable foreseeability is sufficient for aiding and abetting. WC

Read the full opinion here.