Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver v. United States (decided
November 19, 2015).
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 “22nd 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).
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
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