State v. Vonte Skinner (071764) , 218 N.J. 496 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Vonte Skinner (A-57/58-12) (071764)
Argued November 6, 2013 -- Decided August 4, 2014
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers whether graphically violent rap lyrics, written by a defendant before the
events that led to his indictment for attempted murder and related charges, may be admitted at his trial as evidence
of motive and intent, pursuant to N.J.R.E. 404(b).
On November 8, 2005, Lamont Peterson was shot seven times in his back, torso, and head. En route to the
hospital, Peterson told police that defendant, Vonte Skinner, had shot him. Although Peterson initially stated that
the “code of the street” precluded him from cooperating further, he eventually told police that he and defendant sold
drugs for Brandon Rothwell, and that defendant was the group’s “muscle.” Peterson stated that defendant had shot
him because Peterson owed Rothwell money. When questioned, defendant admitted to being present at the scene,
but denied involvement in the shooting, claiming that he fled when he heard the gunshots and left his vehicle behind.
The police searched the car and discovered three notebooks filled with profane and violent rap lyrics authored by
defendant. Many of the lyrics are written in the first person under the moniker “Real Threat,” and defendant has the
word “Threat” tattooed on his arm. Although it is not clear when each verse of the lyrics was written, the State
concedes that many were composed before the circumstances underlying the instant offense took place.
Defendant was charged with first-degree attempted murder and related charges, and, before trial, he
requested a preliminary hearing to contest the admissibility of his rap lyrics. The court concluded that the lyrics
were relevant because they tended to prove the State’s theory of the case and found them admissible under N.J.R.E.
404(b) because they provided insight into defendant’s alleged motive and intent. Accordingly, the court ordered that
redacted portions of defendant’s lyrics would be admitted into evidence.
Defendant’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict. Prior to
his retrial, defendant renewed his objection to the admissibility of the rap lyrics, and the court again found them
admissible. At defendant’s second trial, a detective testifying for the State read to the jury extensive passages from
defendant’s lyrics, depicting violence, bloodshed, death, and dismemberment unconnected to the specific facts of the
attempted-murder charge against defendant.
At trial, defendant advanced a third-party-guilt theory, contending that Peterson was shot by another man,
Joseph Ward, with whom Peterson had an ongoing dispute. Peterson testified that the “code of the street” required
Ward to retaliate against him for the dispute, but insisted that defendant, and not Ward, was his assailant. During
closing arguments, the prosecutor compared the “street code” to a “subculture of violence,” and intimated that “this
sub-culture of violence . . . at some point is going [to] overtake the regular culture.” The jury convicted defendant of
attempted murder, aggravated assault, and aggravated assault with a deadly weapon, and the trial court imposed an
aggregate thirty-year sentence with an eighty-five percent parole disqualifier.
An Appellate Division panel, with one judge dissenting, reversed defendant’s conviction based upon the
admission of his rap lyrics into evidence. In reaching its conclusion, the majority analyzed the admittedly violent
lyrics under N.J.R.E. 404(b), and determined that their prejudicial impact vastly outweighed any potential probative
value. The majority also believed that the State had access to other, less prejudicial, evidence concerning
defendant’s motive and intent, and that “[t]he only logical relevance [of defendant’s lyrics] was to give additional
weight to Peterson’s testimony.” The dissent argued, among other things, that the introduction of defendant’s rap
lyrics made the inference of defendant’s motive and intent more logical.
1
The State filed an appeal as of right, pursuant to Rule 2:2-1(a)(2). Defendant also filed a petition for
certification, which the Court granted limited to his claim that the prosecutor exceeded the bounds of permissible
advocacy in his closing argument. 214 N.J. 174 (2013). The Court granted amicus curiae status to the Attorney
General and the American Civil Liberties Union of New Jersey.
HELD: The Appellate Division correctly reversed defendant’s conviction because the violent, profane, and disturbing
rap lyrics authored by defendant constitute highly prejudicial evidence that bore little or no probative value as to any
motive or intent behind the attempted murder offense with which he was charged.
1. Only once before has the Court assessed the admission of song lyrics as evidence adduced against a criminal
defendant. In State v. Koskovich, 168 N.J. 448, 484-87 (2001), the Court affirmed the admission of violent lyrics
authored by a defendant as proof of a “thrill kill” motive under N.J.R.E. 404(b). N.J.R.E. 404(b) provides generally
that evidence of other crimes, wrongs, or acts may not be admitted to show that a person acted in conformity
therewith, but may be admitted for other purposes when such matters are relevant to a material issue in dispute.
Here, as in Koskovich, the trial court and the Appellate Division utilized N.J.R.E. 404(b) to assess the admissibility
of the defendant’s lyrics. In doing so, the courts followed the four-factor test from State v. Cofield, 127 N.J. 328,
338 (1992). (pp. 19-27)
2. This Court, in its analysis, initially considered argument as to whether artistic expressions about crimes or bad
acts should be evaluated under N.J.R.E. 404(b). To be sure, writing rap lyrics – even disturbingly graphic lyrics,
like defendant’s – is not a crime. Nor is it a bad act or a wrong to write about unpalatable subjects. However, the
purpose of Rule 404(b) is to safeguard against propensity evidence that may poison the jury against a defendant,
such as violent, degrading rap lyrics of the type authored by defendant. Our courts have recognized that expressive
actions, which are not overtly criminal but can be perceived as wrong or bad, can persuade a jury of a defendant’s
guilt, regardless of the State’s evidence. Thus, the purpose of N.J.R.E. 404(b) is advanced by its application in this
setting. Moreover, the admissibility of the lyrics was addressed under a Rule 404(b) framework by both the trial
court and Appellate Division, and the State consented to that analysis. There was also no argument by the State that
the rap lyrics constituted direct evidence of the offense involved in this matter. Instead, the lyrics were advanced for
the purposes of proving motive and intent. A Rule 404(b) analysis therefore was appropriate. (pp. 27-31)
3. Under the Rule 404(b) framework, the other crime, wrong, or bad-act evidence must bear on a material issue in
dispute. Although defendant’s motive was genuinely in dispute in this case, the State offered other evidence on that
issue. The effect of the lyrics was simply to bolster the State’s motive theory, testified to by a State’s witness.
However, this Court repeatedly has discouraged the use of other-crime evidence to bolster the credibility of a
testifying witness. In addition, defendant’s lyrics only bear on the issue of motive if one believes that those lyrics,
many of which were written long before Peterson’s shooting, specifically relate to defendant’s motive on the
evening Peterson was shot. Moreover, it has not been established by clear and convincing evidence, as required
under prong three of Cofield, that defendant engaged in any of the events portrayed in his rap lyrics. Thus they can
only be regarded as fictional accounts. Finally, the prejudicial effect of defendant’s graphically violent rap lyrics
overwhelms any probative value that they may have. (pp. 31-34)
4. In assessing the probative value of defendant’s fictional lyrics, the Court notes that probative evidence may not
be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic
composition and the circumstances of the offense for which the evidence is being adduced. The Court explains that
the difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that
one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in
accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the
Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his
short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. The Court
reasons that defendant’s lyrics should receive no different treatment. This approach is in accord with other
jurisdictions that have considered similar questions. The Court concludes that the violent, profane, and disturbing
rap lyrics authored by defendant constitute highly prejudicial evidence against him that bore little or no probative
value as to any motive or intent behind the attempted murder offense with which he was charged. The admission of
defendant’s inflammatory rap verses, a genre that certain members of society view as art and others view as
distasteful and descriptive of a mean-spirited culture, risked poisoning the jury against defendant. (pp. 2-3; 34-39)
2
5. In sum, rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such
material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence’s
probative value is not outweighed by its apparent prejudice. In the weighing process, courts should consider the
existence of other evidence that can be used to make the same point. When admissible, such evidence should be
carefully redacted to ensure that irrelevant, inflammatory content is not needlessly presented to the jury. (pp. 39-40)
6. Because the Court’s holding will require a retrial, the Court does not reach the merits of defendant’s claim of
prosecutorial excess in summation. Nevertheless, the Court cautions that a prosecutor’s summation should not
employ language designed to stoke a jury’s fear for the future of its community or make an inflammatory argument
akin to a “call to arms.” (pp. 40-41)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and FERNANDEZ-VINA; and
JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.
3
SUPREME COURT OF NEW JERSEY
A-57/58 September Term 2012
071764
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
VONTE L. SKINNER,
Defendant-Respondent
and Cross-Appellant.
Argued April 9, 2014 – Decided August 4, 2014
On appeal from and certification to the
Superior Court, Appellate Division.
Jennifer B. Paszkiewicz, Assistant
Prosecutor, argued the cause for appellant
and cross-respondent (Robert D. Bernardi,
Burlington County Prosecutor, attorney).
Jason A. Coe, Deputy Public Defender, argued
the cause for respondent and cross-appellant
(Joseph E. Krakora, Public Defender,
attorney; Karen E. Truncale, Assistant
Deputy Public Defender, on the briefs).
Joseph A. Glyn, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
Ezra D. Rosenberg argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey Foundation (Edward L. Barocas
and Dechert, attorneys; Mr. Rosenberg, Mr.
Barocas, Jeanne LoCicero, and Alexander R.
Shalom, of counsel; Mr. Rosenberg, Mr.
Barocas, Ms. LoCicero, Mr. Shalom, Michelle
1
Hart Yeary, and Cara J. Schmidt, a member of
the New York bar, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In the criminal trial of defendant, Vonte Skinner, on
attempted murder and related charges, a State’s witness was
permitted to read to the jury, at great length, violent and
profane rap lyrics that had been written by defendant before the
events at issue. There was no assertion at trial that the
violence-laden verses were in any way revealing of some specific
factual connection that strongly tied defendant to the
underlying incident. Nevertheless, the State maintained that
the lyrics helped to demonstrate defendant’s “motive and intent”
in connection with the offense because the rap lyrics addressed
a street culture of violence and retribution that fit with the
State’s view of defendant’s role in the attempted murder.
The Appellate Division reversed defendant’s conviction
based on the admission of the rap lyrics into evidence in
defendant’s trial. In reaching its conclusion, the panel used
an N.J.R.E. 404(b) analysis and determined that the prejudicial
impact of defendant’s rap lyrics vastly outweighed any potential
probative value.
We affirm. We hold that the violent, profane, and
disturbing rap lyrics authored by defendant constituted highly
prejudicial evidence against him that bore little or no
2
probative value as to any motive or intent behind the attempted
murder offense with which he was charged. The admission of
defendant’s inflammatory rap verses, a genre that certain
members of society view as art and others view as distasteful
and descriptive of a mean-spirited culture, risked poisoning the
jury against defendant. Fictional forms of inflammatory self-
expression, such as poems, musical compositions, and other like
writings about bad acts, wrongful acts, or crimes, are not
properly evidential unless the writing reveals a strong nexus
between the specific details of the artistic composition and the
circumstances of the underlying offense for which a person is
charged, and the probative value of that evidence outweighs its
apparent prejudicial impact. In the weighing process, trial
courts should consider the existence of other evidence that can
be used to make the same point. When admissible, such evidence
should be carefully redacted to ensure that irrelevant and
inflammatory content is not needlessly presented to the jury.
I.
A.
On November 8, 2005, at approximately 10:30 p.m., Adam
Donofrio, a patrolman in Willingboro Township, was dispatched to
103 Rittenhouse Drive to investigate a report of shots fired and
a possible injured person. On his arrival, Donofrio observed an
individual, later identified as Lamont Peterson, lying partially
3
underneath an SUV. Peterson told Donofrio that he was unable to
move his legs and was unsure if he was injured. When Donofrio
removed Peterson’s clothing to check for injuries, he observed
seven bullet holes in Peterson’s body: three in Peterson’s
back, one in Peterson’s left arm, one in his chest, one in his
upper abdomen, and two in his head. Donofrio took steps to stem
the bleeding and called for emergency medical personnel. An
ambulance soon arrived, and Peterson was transported to a
helicopter pad and flown to Cooper Medical Center. En route to
the hospital, Peterson told another officer that defendant,
Vonte Skinner,1 had shot him.
Following the shooting, Peterson initially was reluctant to
speak further with the police. He claimed that the “code of the
street” was not to “snitch,” and he felt he needed to get
revenge on his own. However, Peterson eventually agreed to
cooperate. He provided the police with a statement explaining
that both he and defendant sold drugs for a man named Brandon
Rothwell. According to Peterson, defendant joined Rothwell’s
group two months before the shooting and defendant’s job was to
be the group’s “muscle,” handling problems with customers and
other drug dealers. Peterson stated that his relationship with
Rothwell became strained once defendant was admitted to the
1
Peterson actually stated that “Devonte” was the shooter.
“Devonte” is an alias used by defendant.
4
group because Peterson’s share of the profits was reduced due to
the addition of a new member. Unhappy with the loss in his
revenue, Peterson withheld some money that he was supposed to
turn over to Rothwell. According to Peterson, after he stopped
paying his full share of drug proceeds, Rothwell demanded that
Peterson return a TEC-9 firearm that had been provided to him as
a group member. Peterson did not return the weapon.
Peterson testified that, on the night of the shooting, he
engaged in multiple phone conversations with defendant, who
purportedly wanted to set up a drug sale. Peterson agreed to
make the sale and to meet, at defendant’s suggestion, at
Rittenhouse Park in Willingboro at about 10:00 p.m. As the
meeting time grew closer, Peterson received several more calls
from defendant, who seemed anxious to know Peterson’s estimated
time of arrival. Peterson claimed that, on arriving at
Rittenhouse Park, he saw defendant and Rothwell in bushes
located on the side of the street. Defendant allegedly
brandished a firearm and began to shoot at Peterson as Peterson
was exiting his SUV. Peterson stated that he did not recall
trying to run or other details about the encounter, except that
he believed that he was dying. Peterson later told the police
5
that defendant had shot him and that Rothwell had ordered
defendant to do so because Peterson owed Rothwell money.2
Defendant was questioned by police on November 17, 2005, in
connection with the attack on Peterson. Defendant initially
denied being near the scene of the crime, but he eventually
acknowledged arranging a drug deal with Peterson on the night of
the shooting. According to defendant, he was at 103 Rittenhouse
Drive, speaking with Peterson, when shots suddenly rang out.
When he heard the shots, defendant fled on foot. Defendant also
stated that Rothwell was not present at the meeting with
Peterson.
Defendant told the police that he had driven a grey Chevy
Malibu to Rittenhouse Park and that he abandoned the car after
hearing gunshots and running from the scene. The police
obtained a warrant to search defendant’s car3 and discovered in
it three notebooks filled with rap lyrics authored by defendant.
By and large, the rap lyrics contained in defendant’s notebooks
are profane and violent. Many of the lyrics are written in the
2
Rothwell was initially charged as a codefendant, but the
charges against him were dropped because Peterson refused to
testify against Rothwell, reportedly because Rothwell is the
father of Peterson’s cousin’s child.
3
In fact, the car was registered to the mother of defendant’s
girlfriend.
6
first person under the moniker “Real Threat,” and defendant has
the word “Threat” tattooed on his left arm.
Defendant reportedly has composed rap lyrics as a form of
self-expression since he was a child. In fact, the record
reveals evidence that some of defendant’s work had been produced
in connection with a rap music label. Although it is not clear
when each individual verse of the lyrics found in defendant’s
notebooks was written, the State concedes that many of the
lyrics found in defendant’s car and read to the jury were
composed long before the circumstances underlying the instant
offense took place.
B.
A Burlington County grand jury filed an indictment against
defendant on November 16, 2006, charging him with first-degree
attempted murder, contrary to N.J.S.A. 2C:5-1(a)(3) and N.J.S.A.
2C:11-3(a)(1); second-degree conspiracy to commit murder,
contrary to N.J.S.A. 2C:5-2(a)(1); third-degree unlawful
possession of a weapon without a permit, contrary to N.J.S.A.
2C:39-5(b); second-degree possession of a weapon for an unlawful
purpose, contrary to N.J.S.A. 2C:39-4(a); second-degree
aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1); third-
degree aggravated assault with a deadly weapon, contrary to
N.J.S.A. 2C:12-1(b)(2); and second-degree possession of a
firearm by a convicted person, contrary to N.J.S.A. 2C:39-7(b).
7
Before trial, defendant objected to the introduction of his
rap lyrics into evidence. He requested a preliminary hearing
pursuant to N.J.R.E. 104 to contest their admissibility, which
the court granted. The court concluded that the lyrics were
relevant because they tended to prove the State’s theory of the
case and that they were admissible under N.J.R.E. 404(b) because
the lyrics provided insight into defendant’s alleged motive and
intent. Accordingly, the court ordered that redacted portions
of defendant’s rap lyric writings would be admitted into
evidence.
Defendant’s first trial resulted in a mistrial after the
jury was unable to reach a unanimous verdict. Prior to
defendant’s retrial, he renewed his objection to the
admissibility of his rap lyrics; however, the trial court
adhered to its previous determination finding the lyrics
admissible.
At the second trial, a detective testifying for the State
read extensively from defendant’s lyrics to the jury. The trial
transcript of that uninterrupted reading stretches thirteen
pages. The material was replete with expletives and included
graphic depictions of violence, bloodshed, death, maiming, and
dismemberment. The following excerpts of the pages and pages of
verses read to the jury exemplify the general nature of the
lyrics admitted against defendant:
8
I’m the n***a to drive-by and tear your
block up, leave you, your homey and
neighbors shot up, chest, shots will have
you spittin’ blood clots up. Go ahead and
play hard. I’ll have you in front of heaven
prayin’ to God, body parts displaying the
scars, puncture wounds and bones blown apart,
showin’ your heart full of black marks,
thinkin’ you already been through hell, well,
here’s the best part. You tried to lay me
down with you and your dogs until the guns
barked. Your last sight you saw was the gun
spark, nothin’ but pure dark, like Bacardi.
Dead drunk in the bar, face lent over the
wheel of your car, brains in your lap, tryin’
to comprehend what the f**k just tore you
apart, made your brains pop out your skull.
. . . .
On the block, I can box you down or straight
razor ox you down, run in your crib with the
four pound and pop your crown. Checkmate,
put your face in the ground. I’ll drop your
queen and pawn, f**k -– f**k wastin’ around.
They don’t call me Threat for nothin’.
. . . .
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 . . . .
. . . .
In block wars I am a vet. In the hood, I’m
a threat. It’s written on my arm and signed
in blood on my Tech. I’m in love with you,
death.
Although the case had nothing to do with women or violence that
involved women, the material that the State read to the jury
9
also included depictions of rape and other violent and demeaning
treatment of women:
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.
. . . .
So get them answers right. Where’s the case
and stash of white. I got ya wife tied to
the bed and at her throat is a knife.
Those verses, along with several more pages not reproduced here,
plainly depict various crimes and other bad acts, but those
crimes and acts were unconnected to the specific facts of the
attempted-murder charge against defendant. The State did not
attempt to clarify or explain the lyrics in any way, despite
their heavy use of slang and otherwise esoteric language.
In his defense, defendant advanced a third-party-guilt
theory. He contended that Peterson was shot by another man,
Joseph Ward, with whom Peterson had an ongoing dispute. Ward
reportedly had robbed Peterson’s cousin shortly before the
events giving rise to this appeal. In response to that robbery,
someone related to Peterson fired a gun at Ward’s car. Peterson
testified that the “code of the street” therefore required Ward
to retaliate against him. Police found Ward in the area of
Rittenhouse Park on the night Peterson was shot. Furthermore,
Alexandria Ross, Peterson’s cousin and the mother of Rothwell’s
10
child, testified that Peterson had told her that Ward, and not
defendant, had shot him; however, Ross’s in–court testimony
contradicted her previous statements to police, in which she
stated that Peterson was shot by defendant. At trial, Peterson
acknowledged his dispute with Ward but insisted that defendant,
and not Ward, was his assailant.
During closing arguments, the prosecutor compared the
“street code” of silence to a “subculture of violence.”
Specifically, the prosecutor stated that he was “weary because
you deal with this sub-culture of violence and because you
wonder if this sub-culture at some point is going [to] overtake
the regular culture. No snitching and . . . don’t talk to the
police.” The prosecutor also attempted to evoke sympathy for
Peterson by depicting him as a fatherless child and stating,
“[t]hese guys are just kids with guns. That’s all they are.
Kids without fathers with guns.” Finally, the prosecutor
likened the testimony of Alexandria Ross to “a call [for]
anarchy.” He warned the jury that,
[i]f you accept Alexandria Ross’s testimony,
that is a white flag to anarchy. . . . And
if you want to surrender to anarchy and
listen to Alexandria Ross . . . then you’re
free to [do] that. And you can take that
same hand -- by doing it, you take that same
hand and grab it and walk [defendant] to
you, walk him to the light of redemption.
Walk him to the light of the vindicator. If
you feel like that’s what you have to do,
11
then do that. But think about what you are
doing.
The evidence says you should not do that.
Common sense says you should not do that.
Lamont Peterson says you should not do that.
Think about what you are doing.
Defendant did not object to the prosecutor’s summation.
The jury convicted defendant of attempted murder,
aggravated assault, and aggravated assault with a deadly weapon,
and acquitted defendant of all other charges. After merging the
assault and attempted murder convictions, the trial court
imposed an aggregate thirty-year sentence with an eighty-five
percent parole disqualifier, pursuant to the No Early Release
Act, N.J.S.A. 2C:43-7.2.
The Appellate Division reversed defendant’s conviction in
an unpublished decision. The panel concluded, with one judge
dissenting, that the admission of defendant’s rap lyrics into
evidence was reversible error and necessitated a new trial. The
majority primarily expressed concern over the prejudicial impact
of defendant’s admittedly violent lyrics in an attempted murder
trial and, as a result, analyzed the admission of defendant’s
lyrics under the N.J.R.E. 404(b) framework established in State
v. Cofield, 127 N.J. 328, 338 (1992). In doing so, the majority
distinguished this Court’s holding in State v. Koskovich, 168
N.J. 448, 484-87 (2001), which admitted into evidence in a
capital case lyrics authored by a defendant as proof of a
12
“thrill kill” motive under N.J.R.E. 404(b). The majority found
that, unlike in Koskovich, here there was no genuine dispute
over defendant’s alleged motive or intent.
A majority of the panel also believed that the State had
access to other, less prejudicial, evidence concerning
defendant’s motive and intent. In particular, the panel found
that defendant’s motive was amply demonstrated through
Peterson’s testimony that Peterson had been skimming profits
from Rothwell’s business and that defendant was acting as
Rothwell’s “muscle.” Similarly, the panel concluded that
evidence of defendant’s rap lyrics was unnecessary to
demonstrate intent to kill because the brutal nature of the
shooting and Peterson’s seven bullet wounds adequately bespoke
such intent. Consequently, the panel concluded that “[t]he only
logical relevance [of defendant’s lyrics] was to give additional
weight to Peterson’s testimony.”
Finally, addressing defendant’s challenge to the State’s
closing argument, the majority simply noted that the
prosecutor’s summation exceeded the bounds of permissible
advocacy; however, it did not rest the reversal of defendant’s
conviction on prosecutorial impropriety.
The dissent maintained that the trial court correctly
analyzed the four Cofield prongs and properly applied them to
this case. The dissent argued that the introduction of
13
defendant’s rap lyrics made the inference of defendant’s motive
and intent more logical. For that reason, the dissent believed
that the lyrics did more than merely bolster Peterson’s
testimony: “they also explain[ed] why defendant, theoretically
part of Rothwell’s sales team and a cohort of the victim, would
have targeted him.” Accordingly, the dissent maintained that
the probative value of defendant’s rap lyrics easily outweighed
their prejudicial effect.
The dissent acknowledged that the trial court’s redaction
of the lyrics was likely insufficient and that the jury had
heard several verses entirely immaterial to the issues in the
case. However, it concluded that the impact of the extraneous
verses was harmless given their similarity to other relevant
lyrics heard by the jury. Finally, the dissent emphasized that
the trial court adequately instructed the jury on the
permissible use of the lyrics.
Because a member of the Appellate Division panel dissented,
the State filed for an appeal as of right, pursuant to Rule
2:2-1(a)(2). In addition, defendant filed a petition for
certification with this Court seeking review on several other
issues. We granted defendant’s petition limited to his claim
that the prosecutor exceeded the bounds of permissible advocacy
in his closing argument. State v. Skinner, 214 N.J. 174 (2013).
14
We also granted amicus curiae status to the Attorney General and
the American Civil Liberties Union of New Jersey.
II.
A.
Defendant maintains that the Appellate Division correctly
disallowed the admission of his rap lyrics into evidence under
N.J.R.E. 404(b) because any probative value of such evidence is
outweighed by its potential for prejudice. Defendant emphasizes
that N.J.R.E. 404(b) is a rule of exclusion rather than
inclusion and notes that, although redacted by the trial court,
the lyrics read to the jury were disturbing, violent, and
primarily written in the first person. He contends that their
admission was highly prejudicial and served no purpose other
than to inflame the passions of the jury. Moreover, defendant
maintains that depictions of criminal behavior in rap lyrics are
largely exaggerated and often convey nothing more than artistic
bravado. Without being properly guided through expert
testimony, defendant claims that rap lyrics are likely to be
misinterpreted and misused by a jury.
Defendant also contends that the prosecutor’s closing
arguments exceeded the bounds of permissible advocacy and
inappropriately urged the jury to “send a message” by convicting
defendant. Defendant characterizes the prosecutor’s remarks as
an impermissible “call to arms” and claims that, by invoking the
15
specter of a culture war, the prosecutor unfairly prejudiced the
jury against him.
B.
The State contends that the Appellate Division incorrectly
concluded that defendant’s rap lyrics were inadmissible because
of their capacity to prejudice the jury. Specifically, the
State maintains that the Cofield test for the admission of
evidence under Rule 404(b) was properly satisfied. The State
also notes that in Koskovich this Court similarly admitted an
individual’s lyrical musings as evidence of motive in a murder
trial.
According to the State, the lyrics proffered at defendant’s
trial are relevant because they shed light on defendant’s motive
and intent. To that end, the State emphasizes that evidence of
motive and intent “require[s] a very strong showing of prejudice
to justify exclusion.” State v. Covell, 157 N.J. 554, 570
(1999). The State asserts that no such prejudice exists here.
The State also insists that defendant’s lyrics were not
admitted to establish that he was a “bad person.” Rather, it
argues that the lyrics elucidate important aspects of disputed
matters involving the alleged crime. Noting that defendant’s
trial strategy was to suggest that defendant had no motive to
kill a fellow “team member,” and that Ward, rather than
defendant, had shot Peterson, the State argues that defendant’s
16
motive and intent to kill Peterson were directly in dispute.
Because defendant’s purported motive was contested at trial, the
State maintains that the lyrics penned by defendant do more than
corroborate Peterson’s testimony; they illuminate defendant’s
motive and willingness to resort to violence. The State further
notes that the jury explicitly was instructed to consider
defendant’s lyrics only for the limited purpose of establishing
motive or intent, and not as substantive evidence of guilt in
this particular matter.
Finally, the State disputes that the prosecutor’s closing
statement exceeded the bounds of permissible advocacy. The
State emphasizes that defense counsel never objected to the
prosecutor’s closing, indicating that the remarks were not
perceived as prejudicial at the time. Furthermore, the State
relies on the principle that prosecutors are accorded
considerable latitude in forcefully summing up their case, so
long as the remarks are reasonably related to the scope of the
evidence presented.
C.
The Attorney General, appearing as amicus curiae in support
of the State, argues that defendant’s rap lyrics are not
“crimes, wrongs, or acts” within the scope of N.J.R.E. 404(b)
and therefore should be analyzed solely for relevance under
N.J.R.E. 401. The Attorney General further maintains that the
17
determination of whether evidence is a “crime, wrong, or act”
under N.J.R.E. 404(b) must be made independent of the evidence’s
likely prejudicial effect. In other words, he contends that the
mere fact that evidence is prejudicial to a defendant does not
mean that the evidence is necessarily a bad “act” for the
purposes of N.J.R.E. 404(b). Here, the Attorney General asserts
that defendant’s authorship of profane lyrics does not
constitute a crime and that the lyrics therefore should be
assessed solely on the basis of relevance.
The Attorney General further notes that “gangsta rap,” of
the type authored by defendant, is a multi-million dollar
industry, often sponsored by major corporations. The Attorney
General notes that rap music is a prevalent form of
entertainment throughout the country, despite its frequent
references to, and glorification of, violent criminal behavior.
Given the prevalence of rap music in today’s society, the
Attorney General asserts that lyrics such as those of defendant
would be unlikely to inflame the passions of a jury or
irreparably prejudice defendant. Additionally, the Attorney
General contends that the jury was well instructed on the
limited permissible uses of defendant’s lyrics and claims that
there is no reason to believe that the jury used those lyrics in
an inappropriate manner.
D.
18
The New Jersey Chapter of the American Civil Liberties
Union (ACLU) appears in this case as amicus curiae on behalf of
defendant. The ACLU asserts that defendant’s rap lyrics are a
form of artistic expression and thus are entitled to heightened
protection under the First Amendment of the United States
Constitution and Article I, Paragraph 6 of the New Jersey
Constitution. The ACLU emphasizes that defendant’s lyrics are
not akin to a diary and therefore contain limited probative
value. Moreover, because rap lyrics are often a vehicle for
social and political commentary, the ALCU argues that admitting
defendant’s lyrics would run the risk of chilling otherwise
valuable speech. Accordingly, the ACLU urges the establishment
of a strict guideline against the admissibility of expressive
works in a criminal trial, in light of the First Amendment
protections ordinarily afforded to such works. It urges that
their admissibility should be limited to situations clearly
indicating that the author engaged in the crimes about which he
or she has written. In the ACLU’s view, to hold otherwise would
unduly discourage, or even punish, lawful expression.
III.
A.
Only once before has this Court had to assess the admission
of song lyrics as part of the trial evidence adduced against a
defendant. In Koskovich, supra, this Court considered the
19
admission of what appeared to be killing-themed song lyrics
found in a notebook that the defendant kept in his bedroom at
the time of the offense. 168 N.J. at 484-85. The admission of
the violent song lyrics was argued, on appeal, to be error under
an N.J.R.E. 404(b) analysis. Id. at 482. In affirming the
trial court’s evidentiary ruling, we agreed that the lyrics
found in defendant’s notebook were probative of the State’s
theory of the case. Ibid. Specifically, we noted that the
lyrics were able to shed light on the defendant’s motive and
intent for an otherwise inscrutable crime, and we evaluated the
evidence’s prejudicial effect in light of the overwhelming
evidence of defendant’s guilt. Id. at 485-87.
However, an examination of the factual circumstances
surrounding our decision in Koskovich reveals marked differences
from the case here. In Koskovich, the defendant and his friend
had called a pizzeria and placed an order for delivery to an
abandoned home. Id. at 466. When two pizza delivery men
arrived, the defendant repeatedly fired his gun at their car,
killing both of them. Id. at 467. There was no obvious motive
for the shootings, and the State’s theory of the case was that
defendant merely wanted to “experience the thrill of killing.”
Id. at 470.
In searching the defendant’s bedroom, the police
discovered, among other things, a notebook containing what
20
appeared to be song lyrics about killing. Id. at 472. Other
items associated with guns and killing also were found in the
same room. Ibid. The lyrics read to the jury were short:
“‘About killing, people, you can kill by [illegible]. On by
guns, one night you break in, somebody home. And you take their
money and kill by drive [illegible] down the road and shout, and
shouting. By the big heads. The Best.’” Ibid. (alterations in
original). The other items associated with guns and killing
found in the bedroom also were introduced into evidence, along
with rather overwhelming evidence of the defendant’s guilt. Id.
at 480.
The defendant was convicted and received a death sentence.4
On appeal before this Court, the defendant raised a multitude of
issues, including a challenge under N.J.R.E. 404(b) to the
admission of the lyrics. Id. at 482. That rule, entitled
“Other crimes, wrongs or acts,” provides as follows:
Except as otherwise provided by Rule 608(b),
evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person
acted in conformity therewith. Such
evidence may be admitted for other purposes,
such as proof of motive, opportunity,
intent, preparation, plan, knowledge,
identity or absence of mistake or accident
4
Defendant’s death sentence was set aside by this Court and the
matter was remanded for a new penalty phase trial. Id. at 541-
42. New Jersey’s death penalty statute has since been repealed.
L. 2007, c. 204.
21
when such matters are relevant to a material
issue in dispute.
[N.J.R.E. 404(b).]
In Koskovich, supra, we noted, preliminarily, that “[t]he
State makes a legitimate argument that the items at issue do not
represent ‘other wrongs’ as contemplated by N.J.R.E. 404(b), and
thus no analysis is required under that rule.” 168 N.J. at 482.
The trial court in that case had analyzed the evidence based on
the defendant’s objection that the song lyrics lacked any
probative value. Id. at 480. Nevertheless, we reviewed the
evidence based on the asserted Rule 404(b) error raised on
appeal. Id. at 482 (explaining our perception of “some basis to
consider the implication of [Rule] 404(b)”). The lyrics’
admissibility was assessed under that framework, applying the
Cofield factors. Id. at 483-87.
Ultimately, we agreed with the trial court that the song
lyrics evinced a “sort of obsession with killing people,” id. at
480-81, and, as a result, we determined that the trial court did
not err in admitting the writings on the contested issue of the
defendant’s intent, id. at 484-85. We also determined that the
lyrics shed light on the defendant’s motive -- a desire to
experience the thrill of killing -- in an otherwise
indecipherable crime. Id. at 481. Importantly, we noted a
“logical connection” between the writing of the killing-themed
22
song lyrics that the defendant kept in his bedroom and the
specific facts underlying the killing that occurred in
Koskovich. Id. at 485. Moreover, given the strong and
overwhelming evidence of the defendant’s guilt, the prejudicial
impact of the lyrics was deemed not so inflammatory as to
singlehandedly prejudice the jury against defendant. Id. at
487. Accordingly, we upheld the trial court’s admission of the
lyrics to prove motive and intent, having determined that the
lyrics satisfied the stringent test for admission under N.J.R.E.
404(b). Ibid. Even assuming that there was “some slight error”
in the admission of the disputed lyrics, we found no reversible
error in Koskovich because there remained “overwhelming evidence
of [the] defendant’s guilt.” Ibid.B.
Following Koskovich’s lead, the trial court and the
Appellate Division in this matter utilized N.J.R.E. 404(b)’s
framework to assess the admissibility of the rap lyrics written
by defendant. Although Koskovich did not purport to establish a
universal requirement that lyrics or similar expressive works by
a defendant involving themes of criminality must be analyzed
under N.J.R.E. 404(b), the courts’ decisions to use the N.J.R.E.
404(b) framework in this matter is consistent with the safeguard
that the rule provides.
23
It has oft been recognized that “[t]he underlying danger of
admitting other-crime [or bad-act] evidence is that the jury may
convict the defendant because he is ‘a “bad” person in
general.’” Cofield, supra, 127 N.J. at 336 (quoting State v.
Gibbons, 105 N.J. 67, 77 (1987)). For that reason, any evidence
that is in the nature of prior bad acts, wrongs, or, worse,
crimes by a defendant is examined cautiously because it “‘has a
unique tendency’” to prejudice a jury. State v. Reddish, 181
N.J. 553, 608 (2004) (quoting State v. Stevens, 115 N.J. 289,
302 (1989)); see also State v. Hernandez, 170 N.J. 106, 123
(2001) (“Studies confirm that the introduction of a defendant’s
prior bad acts ‘can easily tip the balance against the
defendant.’” (quoting State v. Terrazas, 944 P.2d 1194, 1198
(Ariz. 1997))). Put simply, a defendant must be convicted on
the basis of his acts in connection with the offense for which
he is charged. A defendant may not be convicted simply because
the jury believes that he is a bad person. Because N.J.R.E.
404(b) guards against the wholly unacceptable prospect that a
jury might become prejudiced against a defendant based on
earlier reprehensible conduct, the rule “is often described as
[one] of exclusion.” State v. Rose, 206 N.J. 141, 179-80
(2011).
In Cofield, supra, a four-part test was established “to
avoid the over-use of extrinsic evidence of other crimes or
24
wrongs” pursuant to a Rule 404(b) exception. 127 N.J. at 338.
The framework announced in Cofield requires that:
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 offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[Ibid. (quoting Abraham P. Ordover,
Balancing the Presumptions of Guilt and
Innocence: Rules 404(b), 608(b), and 609(a),
38 Emory L.J. 135, 160 (1989)).]
Those standards have been explicated through their application.
In respect of the first Cofield prong, “the evidence of the
prior bad act, crime, or wrong must be relevant to a material
issue that is genuinely disputed.” Covell, supra, 157 N.J. at
564-65. The analysis can include all “evidentiary circumstances
that ‘tend to shed light’ on a defendant’s motive and intent or
which ‘tend fairly to explain his actions,’ even though they may
have occurred before the commission of the offense.” Id. at 565(quoting State v. Rodgers, 19 N.J. 218, 228 (1955)). However,
the evidence must relate to a material issue that is in dispute,
and the State’s need for the evidence is a consideration when
weighing relevance under prong one. A court must “‘consider
whether the matter was projected by the defense as arguable
25
before trial, raised by the defense at trial, or was one that
the defense refused to concede.’” Rose, supra, 206 N.J. at 160(quoting State v. P.S., 202 N.J. 232, 256 (2010)).
The second prong, which requires that the other-crime
evidence be similar in kind and reasonably close in time to the
alleged crime, is implicated only in circumstances factually
similar to Cofield. See, e.g., State v. Gillispie, 208 N.J. 59,
88-89 (2011) (noting that second Cofield prong need not receive
universal application); State v. Williams, 190 N.J. 114, 131
(2007) (finding that second Cofield prong is “limited to cases
that replicate the circumstances in Cofield”). Its application
is not relevant in the instant analysis. Cf. State v. Barden,
195 N.J. 375, 389 (2008) (declining to apply second Cofield
prong where it “serve[d] no beneficial purpose” (internal
quotation marks omitted)).
The third Cofield prong “requires that the judge serve as
gatekeeper to the admission of other-crime evidence” and ensure
that proof of the prior bad act is demonstrated by clear and
convincing evidence. Hernandez, supra, 170 N.J. at 123; accord
Gillispie, supra, 208 N.J. at 89.
Finally, the fourth Cofield prong requires that “[t]he
probative value of the evidence must not be outweighed by its
apparent prejudice.” Cofield, supra, 127 N.J. at 338 (internal
quotation marks omitted). As noted in Covell, supra, “[s]ome
26
types of evidence require a very strong showing of prejudice to
justify exclusion. One example is evidence of motive or
intent.” 157 N.J. at 570; cf. State v. Mulero, 51 N.J. 224,
228-29 (1968). Nevertheless, in weighing the potential
prejudice of a defendant’s prior bad act, crime, or wrong,
consideration must be given to whether other, less prejudicial,
evidence is available to the State. See Stevens, supra, 115
N.J. at 303; see also Gillispie, supra, 208 N.J. at 90-91 (“In
the weighing process, the court should also consider the
availability of other evidence that can be used to prove the
same point.” (internal quotation marks omitted)).
Finally, if the State adequately “demonstrate[s] the
necessity of the other-crime evidence to prove a genuine fact in
issue and the court has carefully balanced the probative value
of the evidence against the possible undue prejudice it may
create, the court must instruct the jury on the limited use of
the evidence.” Cofield, 127 N.J. at 340-41.
That framework for a Rule 404(b) analysis guides this
review of defendant’s challenge to the admissibility of his rap
lyrics in his criminal trial.
IV.
While the direct parties to this appeal -- the State and
defendant -- acquiesce to analyzing this case under the rubric
of Rule 404(b), there is a debatable question whether artistic
27
expression about crimes or bad acts should be evaluated under
N.J.R.E. 404(b) at all. In other words, can the act of writing
about a crime or bad act be a bad act itself?
The Attorney General as amicus argues that defendant’s rap
lyrics are not “crimes, wrongs, or acts” under N.J.R.E. 404(b)
and therefore should be analyzed solely for relevance under
N.J.R.E. 401. Its position enjoys some support. See, e.g.,
Joynes v. State, 797 A.2d 673, 677 (Del. 2002) (concluding that
authorship of rap lyrics is not “bad act” within meaning of Rule
404(b) and therefore should be governed by relevance standard).
To be sure, writing rap lyrics -- even disturbingly graphic
lyrics, like defendant’s -- is not a crime. Nor is it a bad act
or a wrong to engage in the act of writing about unpalatable
subjects, including inflammatory subjects such as depicting
events or lifestyles that may be condemned as anti-social, mean-
spirited, or amoral. However, the very “‘purpose of Rule 404(b)
is simply to keep from the jury evidence that the defendant is
prone to commit crimes or is otherwise a bad person, implying
that the jury needn’t worry overmuch about the strength of the
government’s evidence.’” Rose, supra, 206 N.J. at 180 (quoting
United States v. Green, 617 F.3d 233, 249 (3d Cir.) (internal
quotation marks omitted), cert. denied, __ U.S. __, 131 S. Ct.
363, 187 L. Ed. 2d 334 (2010)); see also State v. Moore, 113
N.J. 239, 275 (1988) (“The danger that [N.J.R.E. 404(b)] seek[s]
28
to prevent is that a defendant will be prejudiced by evidence of
other acts such that a jury will convict because he or she is a
bad person disposed to commit crime.”).
Rule 404(b) serves as a safeguard against propensity
evidence that may poison the jury against a defendant. Violent,
degrading rap lyrics, of the type authored by defendant, have
the capacity to accomplish just that. Not all members of
society recognize the artistic or expressive value in graphic
writing about violence and a culture of hate and revenge. Thus,
the purpose of N.J.R.E. 404(b) is advanced by its application in
a setting such as this.5
Furthermore, our analysis in Koskovich, supra, recognized
the value of using the Rule 404(b) approach even where the
evidence sought to be admitted is “not overtly criminal in
nature.” 168 N.J. at 483. Specifically, we noted that the
lyrical evidence admitted in Koskovich “was somewhat analogous
and similar in nature to the evidence admitted in State v.
5
Of course, rap lyric evidence that provides direct proof
against a defendant –- such as an admission or details that are
not generally known and dovetail with the facts of the case -–
should be analyzed for relevance under N.J.R.E. 401 and
evaluated under N.J.R.E. 403’s standard for prejudice, and not
the standard for prejudice under a Cofield analysis. Cf. Rose,
206 N.J. at 180 (recognizing intrinsic nature of evidence that
“directly proves” charged offense as excluded from Rule 404(b)’s
analytic framework). A jury need not be shielded from a
defendant’s confession simply because it is conveyed in a rap or
other artistic setting.
29
Covell . . . and State v. Crumb.” Id. at 485. In State v.
Crumb, the Appellate Division acknowledged that lawful,
constitutionally protected acts “nonetheless may be interpreted
by a jury to constitute other wrong acts.” 307 N.J. Super. 204,
231 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). And
in Covell, supra, we explained that “[a]lthough being sexually
attracted to young girls in and of itself is not a crime, a jury
may interpret [a] defendant’s expression of those feelings to be
a wrong or bad act.” 157 N.J. at 568. Those citations
demonstrate our previous recognition that certain expressive
actions, which are not overtly criminal but can be perceived as
wrong or bad, can persuade a jury of a defendant’s guilt,
regardless of the evidence proffered by the State. Cf.
Koskovich, 168 N.J. at 484.
Finally, this appeal comes before us on the basis of a Rule
404(b) objection by defendant to the use of his rap lyrics
against him. The trial court and Appellate Division used a Rule
404(b) framework in weighing the prejudicial effect of the
disputed evidence against its probative value. That approach
was consistent with prior law and the underlying purpose of Rule
404(b). Furthermore, there was no argument by the State that
the rap lyrics constituted direct evidence of the offense
involved in this matter. The lyrics were advanced for the
purposes of proving motive and intent under Rule 404(b).
30
Accordingly, we will engage in a like analysis as our starting
point. In doing so, we note that other jurisdictions also have
approached the admissibility of a defendant’s prejudicial
lyrical compositions using a Rule 404(b) framework. See, e.g.,
State v. Hannah, 23 A.3d 192, 196-201 (Md. 2011); State v.
Cheeseboro, 552 S.E.2d 300, 312-13 (S.C. 2001).
V.
A.
To assess the admissibility of defendant’s rap lyrics under
N.J.R.E. 404(b), we turn to each of the Cofield prongs.6
The first Cofield prong requires that the other crime,
wrong, or bad-act evidence pertain to a material issue in
dispute. Covell, supra, 157 N.J. at 564-65. At trial, the
State suggested that defendant’s lyrics provided valuable
insight into defendant’s alleged motive and intent to kill
Peterson. We agree with the State that, in this case,
defendant’s motive was genuinely in dispute; however, the State
had evidence other than defendant’s rap lyrics that it advanced
on that score. Indeed, Peterson’s testimony explicitly laid out
for the jury the role that defendant played as the “muscle” in a
6
The second prong, which requires that the other-crime evidence
be similar in kind and reasonably close in time to the alleged
crime, is implicated in circumstances factually similar to
Cofield. That prong is not implicated in these circumstances.
Therefore, we do not address it in our analysis.
31
three-person drug operation, in which Peterson had begun to skim
money from Rothwell. Peterson also testified that he had argued
with Rothwell and had refused to return the nine-millimeter
weapon that he had received as a member of Rothwell’s drug team.
In fact, we note that, in the State’s opening, the prosecution
asserted that defendant’s “motive was to enforce the street laws
against [Peterson], and his intent was to kill him.”
The effect of defendant’s 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. As the Appellate
Division succinctly stated, “[t]o the extent the lyrics
depicting defendant as an enforcer and hit-man had any relevance
beyond demonstrating his criminal propensity and depravity, it
was to add weight to Peterson’s testimony that defendant played
that role for Rothwell.” This Court has repeatedly discouraged
the use of other-crime evidence merely to bolster the
credibility of a testifying witness. See, e.g., State v. Darby,
174 N.J. at 520-21 (2002) (stating Cofield standard is rendered
meaningless if “other-crime evidence is admissible merely to
support the credibility of a witness”); P.S., supra, 202 N.J. at
256 (noting “other-crimes evidence should not be admitted solely
to bolster the credibility of a witness against a defendant”).
32
As for intent, defendant did not advance any evidence
calling into question that Peterson’s shooter had intended to
kill him. The sheer number of times and places that Peterson
was struck with bullets -- seven shots in total to his torso,
head, and neck -- certainly provided the State with strong
evidence of an intent to kill. Intent was therefore not in
dispute. Defendant merely asserted that he was not the shooter,
and the State did not advance the rap lyrics evidence for the
purpose of identity. Thus, while the identity of the shooter
was in issue, the shooter’s intent was not.
Furthermore, defendant’s rap lyrics only bear on the
material and disputed issue of motive if one believes that those
lyrics, many of which were written long before the time of
Peterson’s shooting, specifically relate to defendant’s motive
on the evening Peterson was shot and almost killed. The third
Cofield prong requires that proof of the prior-crime evidence be
demonstrated by clear and convincing evidence. See Hernandez,
supra, 170 N.J. at 123. Yet, there was no evidence that the
crimes and bad acts about which defendant wrote in rap form were
crimes or bad acts that he in fact had committed. Indeed, there
is an utter absence of clear and convincing evidence, as
required under prong three of Cofield, that defendant engaged
previously in any of the events portrayed in his rap lyrics.
33
The lyrics can only be regarded as fictional accounts. The
State has produced no evidence otherwise.
Most importantly, the fourth Cofield prong requires that
the probative value of the lyrics not be outweighed by their
prejudicial effect. We before quoted at length several verses
of defendant’s rap lyrics, chosen because they exemplified the
lyrics’ glorification of violence and death, and defendant’s
apparent disregard for human suffering. More pointedly, the
Appellate Division appropriately singled out a portion that
particularly might have prejudiced the jury against defendant
because of its apparent similarity to the type of shooting
inflicted on Peterson:
To illustrate the risk of extreme prejudice,
we refer to a portion of [a] lyric . . .
“Got Beef, I can spit from a distance for
instance; a [person] wouldn’t listen so I
hit him with the Smithern; hauled off 15
rounds, seven missed him; Two to the mask
and six to the ribs, lifted and flipped
him.” This lyric describes a shooting
resembling Peterson’s in that it involved
multiple gun shots delivered to the head,
“the mask,” and chest, “the ribs,” and the
shooting was motivated by the victim’s
failure to listen. The jurors were left to
speculate that defendant had done such
things even though there was no evidence to
suggest that his writing was anything other
than fiction.
In this case, defendant’s graphically violent rap lyrics
could be fairly viewed as demonstrative of a propensity toward
committing, or at the very least glorifying, violence and death.
34
That prejudicial effect overwhelms any probative value that
these lyrics may have. In fact, we detect little to no
probative value to the lyrics whatsoever. The difficulty in
identifying probative value in fictional or other forms of
artistic self-expressive endeavors is that one cannot presume
that, simply because an author has chosen to write about certain
topics, he or she has acted in accordance with those views. One
would not presume that Bob Marley, who wrote the well-known song
“I Shot the Sheriff,” actually shot a sheriff, or that Edgar
Allan Poe buried a man beneath his floorboards, as depicted in
his short story “The Tell-Tale Heart,” simply because of their
respective artistic endeavors on those subjects. Defendant’s
lyrics should receive no different treatment. In sum, we reject
the proposition that probative evidence about a charged offense
can be found in an individual’s artistic endeavors absent a
strong nexus between specific details of the artistic
composition and the circumstances of the offense for which the
evidence is being adduced.
B.
Our approach is in accord with other jurisdictions that
have considered similar questions. For example, in Greene v.
Commonwealth, 197 S.W.3d 76, 86-87 (Ky. 2006), cert. denied, 549
U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001 (2007), the
Supreme Court of Kentucky admitted into evidence the defendant’s
35
homemade video, in which he rapped for nearly seven minutes
about murdering his wife. The defendant claimed that the
evidence should have been excluded under Kentucky’s analogue to
Rule 404(b), but the Supreme Court of Kentucky disagreed. Id.
at 87. The court held that the defendant’s video was admissible
because the defendant was rapping about the very crime for which
he was being charged. Ibid. Accordingly, the Kentucky Supreme
Court held that Kentucky’s Rule 404(b)’s prohibition against
evidence of other crimes was not implicated. Ibid.
Similarly, in Bryant v. State, 802 N.E.2d 486, 498 (Ind.
Ct. App.), transfer denied, 822 N.E.2d 968 (Ind. 2004), the
State of Indiana sought to introduce a defendant’s rap lyrics as
proof of intent in his murder trial. The defendant was charged
with the murder of his stepmother, who was found in the trunk of
the defendant’s car. Id. at 492. The lyrics penned by the
defendant -- “[c]uz the 5-0 won’t even know who you are when
they pull yo ugly ass out the trunk of my car” -- were admitted
as proof of motive because of their substantial similarity with
the alleged crime. Id. at 498. The court noted that the lyrics
were particularly relevant because the defendant claimed that
someone else had done the killing. Id. at 499.
Unlike here, the lyrics admitted in Greene and Bryant
exhibited an unmistakable factual connection to the charged
crimes. Had defendant in this case rapped for seven minutes
36
about murdering a man named “Peterson,” or described in his rap
lyrics the exact manner in which Peterson was to be killed, his
writings would obviously hold more probative value. But absent
such a strong nexus to defendant’s charged crime, his fictional
expressive writings are not properly evidential.
Our sister jurisdictions rarely have admitted a defendant’s
rap lyric compositions into evidence without a demonstration of
a strong nexus between the subject matter of the lyrics and the
underlying crime. See, e.g., Hannah, supra, 23 A.3d at 196-201
(excluding defendant’s rap lyrics); Cheeseboro, supra, 552
S.E.2d at 312-13 (same); State v. Hanson, 731 P.2d 1140, 1144-45
(Wash. Ct. App.) (reversing conviction where prosecution
improperly questioned defendant about violent but fictional
writings), review denied, 108 Wash. 2d 1003 (1987).
In Hannah, supra, the Maryland Court of Appeals concluded
that rap lyrics, authored by the defendant and offered into
evidence by the State, “served no purpose other than the purpose
of showing the [defendant] has a propensity for violence.” 23
A.3d at 202. The Maryland court distinguished the defendant’s
fictional rap lyrics from the type of “artistic” material
involved in cases like Bryant and Greene, stating that, unlike
in those cases, “there is no evidence that [the defendant’s]
lyrics are autobiographical statements of historical fact.” Id.
at 197. Accordingly, the court concluded that the prejudicial
37
impact to the defendant from the introduction of his rap
writings was overwhelming; the conviction was therefore reversed
and the matter was remanded for a new trial. Id. at 202.
In Cheeseboro, supra, the Supreme Court of South Carolina
found that the minimal probative value of the defendant’s lyrics
was outweighed by their unfair prejudicial impact because the
jury could perceive them as evidence of the defendant’s violent
character. 552 S.E.2d at 313. The court further noted that
“these lyrics contain only general references glorifying
violence,” rather than evidence of specific criminal acts.
Ibid. As a result, the court held that the lyrics should have
been excluded. Ibid.
In Hanson, supra, a Washington appellate court rejected
“the proposition that an author’s character can be determined by
the type of book he writes.” Id. at 1145. The court reversed
the defendant’s conviction based on the prosecution’s improper
questioning of the defendant about his violent, fictional
writings. Id. at 1144-45. However, in a footnote, the court
noted that “[t]here may be instances when a defendant’s
fictional writings would be admissible. . . . In this case, the
State never indicated how the defendant’s writings were
logically relevant under [Rule] 404(b).” Id. at 1144 n.7.
In sum, it is clear that other jurisdictions rarely admit
artistic works against a criminal defendant where those works
38
are insufficiently tethered to the charged crime. The upshot to
this approach is that, without a strong connection to the
attempted murder offense with which defendant was charged, the
admission of defendant’s rap lyrics risked unduly prejudicing
the jury without much, if any, probative value.
C.
N.J.R.E. 404(b) analyses are fact-sensitive. Their
outcomes depend on the evidence proffered and the facts and
nature of the case against the defendant. The recitation of
cases from other jurisdictions reflects the difficulty of
pronouncing a hard and fast rule to govern the admission of rap
lyrics. That said, extreme caution must be exercised when
expressive work is involved, particularly when such expression
involves social commentary, exaggeration, and fictional
accounts.
In this instance, we are persuaded that the Appellate
Division correctly reversed defendant’s conviction.
We hold that the violent, profane, and disturbing rap lyrics
that defendant wrote constituted highly prejudicial evidence
against him that bore little or no probative value on any motive
or intent behind the attempted murder offense with which he was
charged. Less prejudicial evidence was available to the State
on both motive and intent. The admission of defendant’s rap
writings bore a high likelihood of poisoning the jury against
39
defendant, notwithstanding the trial court’s limiting
instruction.
The use of the inflammatory contents of a person’s form of
artistic self-expression as proof of the writer’s character,
motive, or intent must be approached with caution. Self-
expressive fictional, poetic, lyrical, and like writings about
bad acts, wrongful acts, or crimes generally should not be
deemed evidential unless the writing bears probative value to
the underlying offense for which a person is charged and the
probative value of that evidence outweighs its prejudicial
impact. In the weighing process, the trial court should
consider the existence of other evidence that can be used to
make the same point. If admitted, courts are cautioned to
redact such evidence with care. In conclusion, we hold that rap
lyrics, or like fictional material, may not be used as evidence
of motive and intent except when such material has a direct
connection to the specifics of the offense for which it is
offered in evidence and the evidence’s probative value is not
outweighed by its apparent prejudice.
VI.
Because our holding based on the introduction of
defendant’s rap lyrics will require his retrial, we add only
this in respect of defendant’s claim of prosecutorial excess in
summation. On retrial, the State is cautioned that a
40
prosecutor’s summation should not employ language designed to
stoke a jury’s fear for the future of its community or make an
inflammatory argument akin to a “call to arms.” State v.
Marshall, 123 N.J. 1, 161 (1991) (disapproving inflammatory and
highly emotional appeals in State closing argument), cert.
denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993);
State v. Knight, 63 N.J. 187, 193 (1973) (disapproving summation
that urges jury to respond to “serious” societal unrest); State
v. Goode, 278 N.J. Super. 85, 89-90 (App. Div. 1994) (addressing
improper “call to arms” that urged jurors to “make a difference
in [their] community”).
VII.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
FERNANDEZ-VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join
in JUSTICE LaVECCHIA’s opinion. JUDGE CUFF (temporarily
assigned) did not participate.
41
SUPREME COURT OF NEW JERSEY
NO. A-57/58 SEPTEMBER TERM 2012
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff -Appellant
and Cross-Respondent,
v.
VONTE L. SKINNER,
Defendant-Respondent
and Cross-Appellant.
DECIDED August 4, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ---------------------- ----------------------
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