On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-11-1756.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2012 -
Before Judges Grall, Alvarez and Skillman.
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.*fn1
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 ...