Thursday, March 17, 2016

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.


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 “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).

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


 



No comments:

Post a Comment