This is another guest post by my colleague at Lite DePalma Greenberg, LLC, Jeffrey A. Shooman:
State v. Skinner, 218 N.J. 496 (2014). I’ve blogged before about Federal Rule of Evidence 404(b), which governs the admissibility of prior other or bad act evidence in federal cases. Last week, the Supreme Court of New Jersey issued an important, unanimous opinion on 404(b)’s state analog, New Jersey Rule of Evidence 404(b). In reversing defendant’s attempted murder and other related convictions, the Court considered the admissibility of violent, graphic rap lyrics that the State argued bore on defendant’s motive and intent.
On November 8, 2005, Lamont Peterson was shot seven times, in the torso, head, and neck, but survived the shooting. Peterson told the officers that defendant had shot him. Peterson explained that he and defendant sold drugs for Brandon Rothwell. Defendant was the “muscle” of the group, tasked with handling problems with customers and other drug dealers. Peterson’s relationship with Rothwell became strained as a result of defendant’s addition to the group, because it reduced Peterson’s share of the profits, and because defendant began to withhold money from Rothwell.
Peterson testified that on the night of the shooting, he and defendant agreed to meet at a park in Willingboro to arrange a drug sale. When he arrived at the park, Peterson said, he saw defendant and Rothwell in the bushes. Peterson said that defendant shot at him but could not recall other details about the encounter. Peterson later told the police that Rothwell ordered defendant to shoot him. The police eventually secured a search warrant of defendant’s car and found notebooks filled with rap lyrics written by defendant. Many of the lyrics were drafted in the first person under the nickname “Real Threat.” Defendant has the word “Threat” tattooed on his arm.
Defendant had reportedly composed rap lyrics since he was a child. The record revealed that some of the lyrics were produced in connection with a rap music label. It was unclear when any of the lyrics were written, but the State conceded that many of the lyrics read to the jury were written long before the shooting.
Defendant was indicted for first degree attempted murder, among other related assault and weapons charges. Defendant objected to the admissibility of the rap lyrics under N.J.R.E. 404(b). The trial court concluded that the lyrics were relevant to defendant’s alleged motive and intent and allowed redacted portions of the lyrics to be admitted.
The lyrics were violent, including graphic depictions of violence, death, maiming, and dismemberment, among other things. Here are three samples:
Your last sight you saw was the gun spark, nothin’ but pure dark, like Bacardi. Dead drunk in the bar, face lent over wheel of your car, brains in your lap, tryin’ to comprehend what the f**k just tore you apart, made your brains pop out of your skull:
. . . .
You pricks goin’ to listen to Threat tonight. ‘Cause feel when I pump this P-89 into your head like lice. Slugs will pass ya’ D, like Montana and Rice, that’s five hammers, 16 shots to damage your life, leave you f*****s all bloody . . . .
After you die, I’ll go to your Mom’s house and f**k her until tomorrow and make ya’ little brother watch with his face full of sorrow.
As to this last lyric, the Court noted that this case had nothing to do with violence against women, yet some lyrics read to the jury had to do with the violent and demeaning treatment of women. Indeed, none of the lyrics read to the jury had any connection with the underlying charged crimes.
Defendant argued at trial that someone else had shot Peterson. The jury rejected that defense and convicted defendant of attempted murder, aggravated assault, and aggravated assault with a deadly weapon.
The Appellate Division reversed defendant’s convictions in a 2-1 decision. The majority concluded that the admission of the lyrics violated 404(b), expressing concern about their prejudicial impact. The majority distinguished State v. Koskovich, 168 N.J. 448 (2001), a capital case where the Court affirmed the admission of lyrics authored by the defendant as proof of a “thrill kill” motive under 404(b). The majority found that there was no dispute about defendant’s motive or intent, unlike Koskovich. Indeed, the majority found that defendant’s motive was sufficiently explained through Peterson’s testimony, and the brutal nature of the shooting sufficed to explain the defendant’s intent to kill. The dissenting judge maintained that the probative value of the lyrics—explaining why defendant targeted Peterson—easily outweighed their prejudicial effect.
Given the dissent, the State appealed as of right and the Court granted defendant’s petition for certification on an argument the Court did not address for it became moot. In a unanimous opinion by Justice LaVecchia, the Court affirmed the Appellate Division’s reversal of defendant’s convictions.
The Court began by distinguishing Koskovich. There, the defendant and his friend placed a pizza delivery order to an abandoned home. When the delivery men arrived, the defendant shot and killed them. The police found in the defendant’s home a notebook containing lyrics about killing. The lyrics read to the jury were relatively brief. The Court in Koskovich concluded that the song lyrics evinced a “sort of obsession with killing people,” 168 N.J. at 480-81, and upheld their admission since there was a “logical connection” between the lyrics and the facts underlying the killing.
Justice LaVecchia next identified the policy underlying 404(b): to protect defendants from being convicted because they are “bad” actors. Courts cautiously review 404(b) evidence because there is a real risk that other act evidence has a unique tendency to influence a jury. “Put simply, a defendant must be convicted on the basis of his acts in connection with the offense for which he is charged.” The Court then delineated the factors governing the admissibility of 404(b) evidence set forth in State v. Cofield, 127 N.J. 328 (1992): (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 charged offense; (3) the evidence must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its prejudice.
The Court addressed a threshold inquiry that was raised by the State as amicus: do violent rap lyrics even fall under the rubric of 404(b)? The State argued that rap lyrics are not “crimes, wrongs, or acts” under 404(b). The Court noted that the State’s position enjoyed some support, quoting the Supreme Court of Delaware’s holding that authoring rap lyrics is not a “bad act” under 404(b). In the end, though, the Court rejected the State’s argument. Rule 404(b) is designed to guard against propensity evidence that may poison the jury, and “[v]iolent, degrading rap lyrics, of the type authored by defendant, have the capacity to accomplish just that.” Citing other New Jersey appellate cases, the Court noted that certain expressive conduct, though not criminal, may be perceived as “bad” or “wrong,” and can thus have the capacity to persuade the jury as to a defendant’s guilt. Moreover, the lyrics were offered to prove motive and intent under 404(b). Accordingly, the Court applied 404(b) and Cofield.
Turning to the first prong– that the other act evidence pertain to a material issue in dispute– the Court agreed with the State that defendant’s motive was seriously disputed. But the State offered other evidence, notably Peterson’s testimony; the State even argued in its opening that the defendant’s motive was to enforce the street laws against Peterson, and thus, to kill him. “The effect of [the] rap lyrics was simply to bolster the State’s motive theory, which was already supported by Peterson’s testimony that defendant was the enforcer for Rothwell, who was being cheated by Peterson.”
Intent to kill, the Court held, however, was not in dispute, given the savage nature of the shooting: seven shots to the torso, head, and neck. Defendant put on a third-party guilt defense, and so the identity of the killer was at issue, not the shooter’s intent. Moreover, the Court held that the rap lyrics bore on motive only if one believed that the lyrics, many of which were written long before the shooting, “specifically relate to defendant’s motive on the evening Peterson was shot and almost killed.” This implicated Cofield’s third prong: that the proof of the other act evidence by “clear and convincing.” There was no evidence that defendant engaged in any of the events portrayed in the lyrics. The Court deemed them to be fictitious, and the State did not present evidence to the contrary.
Turning to Cofield’s final prong– that the probative value of the other act evidence outweigh the possible prejudice– the Court determined that the graphic and violent nature of the lyrics “could be fairly viewed as demonstrative of a propensity toward committing, or at the very least glorifying, violence and death.” Accordingly, that prejudice overwhelmed any probative value of the lyrics. Invoking Bob Marley’s “I Shot the Sheriff,” and Edgar Allen Poe’s “The Tell-Tale Heart,” Justice LaVecchia noted that one would not presume that Bob Marley actually shot a sheriff, or that Edgar Allen Poe actually buried a man beneath his floorboards. “Defendant’s lyrics should receive no different treatment.”
The Court then reviewed similar decisions from its sister jurisdictions and noted that courts have rarely admitted rap lyrics without a nexus between those lyrics and the charged offense. Justice LaVecchia concluded that 404(b) analyses are fact-sensitive, but that courts must exercise “extreme caution” when expressive work is implicated. Self-expressive writings, whether they be fictional, poetical, or lyrical, should generally not be deemed evidential. This type of evidence should be admitted only when it has a “direct connection” to the charged offense and when the probative value is not outweighed by the apparent prejudice.