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SJC-13223, (indistinct) vs (indistinct).
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Good morning.
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Good morning, Chief Justice Budd and associate justices.
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And may it please the court.
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Eva (indistinct) on behalf of a (indistinct) Korea.
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I'm gonna spend most of my time on the rap lyrics,
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but I, of course, welcome any other questions.
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Here, irrelevant and inflamatory rap lyric evidence reached
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the jurors, and they were permitted
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to use those rap lyrics for any purpose.
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The lyrics were inflammatory based upon their content,
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violence, guns, shooting, gang imagery,
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hostility towards the police, prior bad acts.
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But also--
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There was no limiting instruction?
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There was no limiting instruction.
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I recognize that.
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But on redirect day, after the mistrial was denied,
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the defense attorney brought up the non propensity purpose
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for which Judge Davis seemed to have allowed the evidence in
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as it relates to how the defendant would've taken
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the victim statements,
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considering the defendant's own postings in state of mind.
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That was the theory of relevance.
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Why is that theory of relevance not available
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as a non-propensity purpose?
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So you're asking a question about relevance,
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you're also asking how it came in, so yes, on redirect,
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Mr. Korea described what the rap meant to him.
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So I'm gonna go all the way down to,
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I think I'll say this first, let me preface this.
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Even if these lyrics were marginally relevant in any way,
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they were substantially outweighed
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by their prejudicial value.
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But I can jump into relevance first.
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And I also need one more preface.
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I'm gonna get to your how Mr. Korea would've interpreted
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the post, I promise.
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But one more preface,
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this court in Gray stated that rap lyrics shouldn't
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necessarily be taken as literal.
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And before we can take these rap lyrics as literal,
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I think I would ask the court
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to adopt some sort of standard.
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Some sort of standard to say that there's a strong nexus
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of fact between the lyrics
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and the case before the rap lyrics.
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Isn't the defense premised on a literal interpretation
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of rap lyrics too?
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I mean, the basis of the self-defense is a rap lyric, right?
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So not exactly, and it's a little bit different.
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So the reason that Mr. Korea understood
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what Mr. Martin said directly to him was
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because those phrases were made popular
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by rap music.
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So during this fight, Mr. Martins states to him,
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"Do you know how the hot shit feel?"
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And to him, because rap is popular in their community,
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he understands that to mean,
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"I'm going to shoot you."
Can I go backwards
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for a second?
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I'm not sure that Justice Kafker was alluding to that,
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because if I remember correctly,
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Mr. Korea said that there were Facebook postings
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where the decedent had quoted other rap lyrics
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that Mr. Korea used,
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and that was used by the defense in the state
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of mind of Mr. Korea as to why he thought he had
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to resort to what he did.
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So if we could go back to that for a second,
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because I'm wondering why it is that we get
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to consider the content for the truth
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when it's to his benefit as
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to the reasonableness of his fear,
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but in converse, we can't consider it when it comes
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to the rap lyrics that he posted.
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Can you explain that to me?
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There's an element of temporal proximity here,
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just to start with,
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and that's discussed in some of the cases
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in the other jurisdiction.
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So the lyric that you're referring to,
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and you can see it as Exhibit 60,
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was posted as a single phrase on Mr. Martins' Facebook,
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only hours before this fight occurred.
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It was not an entire rap song, it was not a very long lyric,
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it was a specific phrase that he selected
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and posted with a picture of himself,
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not a picture of the rap cover or something like that,
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picture of himself, a specific phrase,
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and it included the word murder.
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And it wasn't used,
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so the idea that the evidence was relevant to Mr. Korea,
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that he, as the judge said, that he felt like he needed
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to stab Mr. Martins because of postings,
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that's not quite right,
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that's not what Mr. Korea testified to.
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Mr. Korea testified that when he was threatened directly
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by Mr. Martins with a shooting,
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when Mr. Martins reached toward the backpack,
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toward the zipper, where a gun could have reasonably been
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kept, and since Mr. Martins had been wearing this clothing
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that indicated that he was up to no good, in that moment,
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Mr. Martins also remembered that he had seen only hours
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before that Mr. Martins posted the word murder.
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Now, did Mr. Korea explain what that phrase meant?
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Sneak dissing based on a rap lyric?
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Yes, that was how he understood what Mr. Martins
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had posted only hours earlier.
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So that's a little different than...
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Can I--
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There's another rap lyric, though,
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which is the fir--
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The first one he said directly
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to Mr. Korea during the fight.
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But again, you have to interpret it literally, right?
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If your whole basis of your argument is the rap lyrics
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are metaphorical, or personas rather than the person,
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we're interpreting the other phrase literally though,
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you want us to have it, it's a two-way street.
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We don't need to be consistent.
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So these are different things, respectfully,
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Justice Kafker, these are different things.
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And when you state a phrase during a fight at someone,
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while you are reaching to a place
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where firearm could reasonably be kept,
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that has a strong nexus to the facts of the case.
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When you post--
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Counsel, it wouldn't matter whether it was a rap lyric--
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Or anything else.
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Poetry.
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Exactly.
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It's the meaning of the words or what count
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and the fact that the person said it.
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Right, so in the context,
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and I think that's what Gray talks about.
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We have to see what the context of this is.
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The exact words are,
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"You know how the hot shit feels," right?
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That's not self-explanatory.
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Maybe not for us as older white people,
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but for somebody who lived in that community at that time,
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where those that music was popular,
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and they were all listening to it,
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it meant exactly, "I'm gonna shoot you."
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But she's gonna get up and say the exact same thing
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about what your client said.
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So I didn't actually end up finishing my answer
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about the time of parol proximity.
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Mr. Korea posted entire songs 11 days before this incident.
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They didn't talk about anything specific to this incident.
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Mr. Korea did not reference any of his lyrics
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during this incident.
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So if you're using a lyric during a fight,
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looking at someone, telling them,
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"Do you know how the hot shit feel?"
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And then reaching into a place
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where a gun could reasonably be,
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that has a strong nexus of fact to what's going on.
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If you post 11 days before,
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lyrics that are generally violent, generally about shooting,
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generally about themes that rap often incorporates,
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there's a footnote in Gray where they cite a study that says
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that 65% of rap music includes violent themes.
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This is common.
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This is not the same thing as a strong nexus
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of fact where you're being threatened
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with a specific phrase at a specific time during the fight.
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If Mr. Korea had said any of these lyrics during the fight,
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they would be relevant, and the songs might be relevant,
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but he did not.
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I'd just like to go back to my initial question.
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Absolutely.
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All these theories of relevance
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about the Glock were North and South.
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That wasn't the theory of admissibility.
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It wasn't,
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So this was all well and good,
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but there's no limiting instruction,
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and that's not the theory of admissibility.
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Absolutely.
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So Judge Davis lets it in because he believes
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that it's important to hear the defendant statements
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to understand how he would've taken the victim statements.
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That's the theory of admissibility, right?
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That's the theory of admisiibility,
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all this other stuff is not the fear of admisibility.
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The defense attorney on redirect brings
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all that evidence out into the forefront,
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the exact theory of relevance.
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How did you?
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What'd you think of the rap?
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So why isn't it if the jury certainly,
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at least if they'd had heard it, a limiting instruction,
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"Be able to focus on that relevance?"
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Well, I mean, if they didn't have a limiting instruction,
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and they could have used it for any purpose.
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And whatever defense counsel was able
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to do with it after she was unable to get it excluded.
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I don't know if you're asking, does it make it relevant,
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or does it cure it somehow cure the prejudice?
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But it doesn't make it relevant because she had
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to discuss what the rap meant.
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But I would like to go how Mr. Korea would've interpreted
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the post, 'cause that is the theory of relevance.
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So, number one, it's a little too broad.
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Mr. Korea, how someone would've...
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If a certain online post is relevant,
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it doesn't necessarily mean
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that all online posts are relevant.
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And it's a little apples to oranges.
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We have a rap song versus a photograph
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of Mr. Martin's possessing a firearm,
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which defense counsel used in her argument
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and asked Mr. Korea questions about having to do with,
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or Mr. Korea responded that when he heard
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Mr. Martins threaten him, he thought back to the fast fact
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that he had seen photographs
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of Mr. Martins possessing a firearm.
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So it's a little bit different than a rap song.
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And again, I think selecting a particular lyric,
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including the word murder,
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three hours before you go to the park,
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dressed in the manner that Mr. Martins was,
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that has a stronger nexus effect.
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And defense counsel didn't argue that...
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I'm sorry.
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I think it's a stretch to say that Mr. Korea was thinking
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about how his rap songs would've affected the fact
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that he saw Mr. Martins post a firearm
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or post the word murder.
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That leads to...
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I'm sorry, Justice Lowy.
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You go, please.
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I'm still back
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to Justice Lowy's theory of admissibility.
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I understand that particularly as an advocate,
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you might be saying that, but the question is whether
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or not the jury could consider this.
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Because on the one hand, you're arguing
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that even though we're not talking
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about just the temporal proximity of the hot shit lyric,
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but the other stuff that was posted on Facebook,
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that all of that went into the state of mind of Mr. Korea
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when he did what he did.
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And so to the answer of fighting kind of fire with fire
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and saying, if you're asking the jury
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to believe the reasonableness of his apprehension,
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why shouldn't they get to also consider
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that he posted rap lyrics?
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And it wasn't the all songs
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that she used at cross examination,
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it was particular lines to which on redirect, he got to say,
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"These were all just posts, I didn't really mean it.
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This is just me."
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Why shouldn't the jury get to consider that when they're
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also considering the reasonableness of his apprehension?
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It's all the same thing, why is that wrong?
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I do think that the relevance
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is very low if it exists at all.
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And I believe that, because I really do think this is apples
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to oranges, posting an actual picture showing possession
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00:11:14.910 --> 00:11:16.890
of a weapon versus a rap lyric.
264
00:11:16.890 --> 00:11:20.550
Posting a rap lyric temporarily to this fight
265
00:11:20.550 --> 00:11:22.110
versus 11 days before.
266
00:11:22.110 --> 00:11:25.470
But even if the court finds that this was somehow relevant
267
00:11:25.470 --> 00:11:29.760
to how Mr. Korea would have interpreted posts
268
00:11:29.760 --> 00:11:32.670
in light of the direct threat, the clothing,
269
00:11:32.670 --> 00:11:34.710
the reaching toward the backpack,
270
00:11:34.710 --> 00:11:37.380
then this evidence was more prejudicial than probative,
271
00:11:37.380 --> 00:11:39.360
and substantially more prejudicial than probative.
272
00:11:39.360 --> 00:11:40.830
Let's assume for a moment it is
273
00:11:40.830 --> 00:11:42.300
'cause you run out of time.
274
00:11:42.300 --> 00:11:44.400
The jury came back voluntary manslaughter.
275
00:11:44.400 --> 00:11:49.400
They clearly didn't accept for the truth of what was said
276
00:11:50.940 --> 00:11:52.350
against the defendant.
277
00:11:52.350 --> 00:11:56.040
So Justice George's point, I think is well taken.
278
00:11:56.040 --> 00:11:58.110
We're trying to decide who's the first aggressor
279
00:11:58.110 --> 00:11:59.266
in all those issues,
280
00:11:59.266 --> 00:12:01.680
and why shouldn't the defendant's state of mind come
281
00:12:01.680 --> 00:12:04.950
into play if the victim's state of mind is in play.
282
00:12:04.950 --> 00:12:07.950
But nonetheless, the jury comes back,
283
00:12:07.950 --> 00:12:10.350
not deliberate premeditation,
284
00:12:10.350 --> 00:12:12.540
they don't clearly don't accept the lyrics
285
00:12:12.540 --> 00:12:16.050
for their truth, or for their propensity purpose.
286
00:12:16.050 --> 00:12:17.280
Right, so I think I just wanna say
287
00:12:17.280 --> 00:12:18.113
one thing about prejudice.
288
00:12:18.113 --> 00:12:19.380
I'll move on to prejudicial error,
289
00:12:19.380 --> 00:12:22.530
but rap lyric evidence is inherently prejudicial.
290
00:12:22.530 --> 00:12:25.700
The amicus brief is wonderful, read it, it talks about--
291
00:12:25.700 --> 00:12:27.480
By the lack of limiting instruction
292
00:12:27.480 --> 00:12:28.893
that the defendant should have asked for,
293
00:12:28.893 --> 00:12:30.570
that the Commonwealth should have asked
294
00:12:30.570 --> 00:12:31.890
for if the defendant didn't,
295
00:12:31.890 --> 00:12:32.910
and the judge should have given,
296
00:12:32.910 --> 00:12:35.070
even if neither side asked for should have been done
297
00:12:35.070 --> 00:12:37.410
because of all those reasons, but that didn't happen.
298
00:12:37.410 --> 00:12:38.430
And respectfully, I don't even know
299
00:12:38.430 --> 00:12:39.810
if a limiting instruction would have
300
00:12:39.810 --> 00:12:41.220
mitigated the prejudice here.
301
00:12:41.220 --> 00:12:43.770
This evidence is inherently prejudicial.
302
00:12:43.770 --> 00:12:46.170
Jurors see rap lyrics as more offensive,
303
00:12:46.170 --> 00:12:47.700
more threatening, more dangerous.
304
00:12:47.700 --> 00:12:49.800
They see black rap artists
305
00:12:49.800 --> 00:12:51.810
as particularly criminal and violent.
306
00:12:51.810 --> 00:12:52.860
But first degree murder--
307
00:12:52.860 --> 00:12:55.380
They didn't, and I'll move on.
308
00:12:55.380 --> 00:12:57.150
They got to voluntary manslaughter,
309
00:12:57.150 --> 00:12:59.970
which suggests they weren't interpreting it that way
310
00:12:59.970 --> 00:13:00.840
that you're suggesting.
311
00:13:00.840 --> 00:13:04.890
Well, but they could have interpreted it exactly this way.
312
00:13:04.890 --> 00:13:07.830
So the jury could have used this evidence
313
00:13:07.830 --> 00:13:10.950
to determine that Mr.Korea was a violent person.
314
00:13:10.950 --> 00:13:13.500
A violent bad person who would've used more force
315
00:13:13.500 --> 00:13:16.080
than necessary in this case.
316
00:13:16.080 --> 00:13:18.450
The jury could have perceived that Mr. Korea was a violent,
317
00:13:18.450 --> 00:13:21.480
bad person, who did something wrong.
318
00:13:21.480 --> 00:13:23.250
This was not justified, he did something,
319
00:13:23.250 --> 00:13:25.650
he at least did something wrong.
320
00:13:25.650 --> 00:13:26.970
That he's a violent, bad person,
321
00:13:26.970 --> 00:13:28.200
and he would've used more force,
322
00:13:28.200 --> 00:13:29.550
he would've done something wrong.
323
00:13:29.550 --> 00:13:30.420
Enough force.
324
00:13:30.420 --> 00:13:32.250
I mean, there were 12 stabs.
325
00:13:32.250 --> 00:13:33.600
There were not, so just to be clear,
326
00:13:33.600 --> 00:13:35.070
there were not 12 stab wounds.
327
00:13:35.070 --> 00:13:37.620
The medical examiner's evidence is very clear.
328
00:13:37.620 --> 00:13:40.830
There were, I think, three wounds that could be considered
329
00:13:40.830 --> 00:13:41.663
to be stab wounds.
330
00:13:41.663 --> 00:13:43.380
There were six wounds on Mr. Martin's hands,
331
00:13:43.380 --> 00:13:44.610
and I would direct you to my appendix,
332
00:13:44.610 --> 00:13:46.890
I have pictures of those wounds.
333
00:13:46.890 --> 00:13:48.180
And there were additional wounds.
334
00:13:48.180 --> 00:13:50.370
Which one was the cause of death?
335
00:13:50.370 --> 00:13:52.830
There were two that both the medical examiners said
336
00:13:52.830 --> 00:13:54.690
there were two wounds that both were serious enough
337
00:13:54.690 --> 00:13:56.640
to cause death, and one of those was to the chest
338
00:13:56.640 --> 00:13:59.250
and one of those was to the abdomen.
339
00:13:59.250 --> 00:14:01.734
But the repeating of the 12 stab wounds was actually--
340
00:14:01.734 --> 00:14:04.770
Is it your position that if these lyrics weren't in,
341
00:14:04.770 --> 00:14:07.590
the jury could not have so concluded all of those things
342
00:14:07.590 --> 00:14:10.920
about Mr. Korea based on all the other evidence that came in
343
00:14:10.920 --> 00:14:12.451
because it was substantial?
344
00:14:12.451 --> 00:14:13.320
No, there were actually,
345
00:14:13.320 --> 00:14:15.420
the evidence in this case was really thin.
346
00:14:15.420 --> 00:14:17.250
A lot of it was through grand jury testimony
347
00:14:17.250 --> 00:14:19.293
and the witnesses had--
348
00:14:19.293 --> 00:14:22.560
Well, you heard he was concerned about his cousin,
349
00:14:22.560 --> 00:14:25.890
he armed himself, he went to the park, he found his cousin.
350
00:14:25.890 --> 00:14:28.800
He didn't take his cousin and leave, he stayed.
351
00:14:28.800 --> 00:14:32.250
And he inserted himself after the reason for coming there
352
00:14:32.250 --> 00:14:34.680
was already obviated because he found his little cousin.
353
00:14:34.680 --> 00:14:36.630
He could have laughed, he didn't call the police,
354
00:14:36.630 --> 00:14:37.710
all these other things.
355
00:14:37.710 --> 00:14:40.210
So there's plenty of evidence that they could have
356
00:14:41.190 --> 00:14:43.680
decided that he came down there on a purpose.
357
00:14:43.680 --> 00:14:45.243
Other than these rap lyrics.
358
00:14:46.470 --> 00:14:48.420
I take a little exception with some of the things
359
00:14:48.420 --> 00:14:49.260
that you said factually,
360
00:14:49.260 --> 00:14:50.820
and I just wanna hit a couple of them.
361
00:14:50.820 --> 00:14:53.070
There was was no evidence that Mr. Korea armed himself
362
00:14:53.070 --> 00:14:54.600
specifically for this fight.
363
00:14:54.600 --> 00:14:55.500
There was evidence--
I didn't say that,
364
00:14:55.500 --> 00:14:57.510
I just said that he came down there with a knife.
365
00:14:57.510 --> 00:14:59.970
Okay, you said he armed himself, and he--
366
00:14:59.970 --> 00:15:01.110
That's not arming yourself?
367
00:15:01.110 --> 00:15:02.400
Coming down there with a knife?
368
00:15:02.400 --> 00:15:03.780
If you always carry a pocket knife,
369
00:15:03.780 --> 00:15:05.100
and that was the evidence.
370
00:15:05.100 --> 00:15:07.560
He didn't arm himself specifically for this fight.
371
00:15:07.560 --> 00:15:10.051
And the evidence was that when he--
372
00:15:10.051 --> 00:15:14.298
He puts the shirt over his head like it's a hockey fight,
373
00:15:14.298 --> 00:15:17.130
and makes, maybe there's not 12 stab wounds,
374
00:15:17.130 --> 00:15:19.833
but there's 12 contacts.
375
00:15:21.517 --> 00:15:25.110
And the issue is whether it's excessive force
376
00:15:25.110 --> 00:15:27.900
and self-defense, not whether the rap music was used
377
00:15:27.900 --> 00:15:31.350
for its truth as it relates to premeditation or intent.
378
00:15:31.350 --> 00:15:33.300
Right, but the rap lyrics were prevented
379
00:15:33.300 --> 00:15:34.380
to use it for any purpose,
380
00:15:34.380 --> 00:15:36.240
and I believe that they could have used it to think
381
00:15:36.240 --> 00:15:38.400
that Mr. Korea was a violent person.
382
00:15:38.400 --> 00:15:40.620
And that he would've used more force than necessary.
383
00:15:40.620 --> 00:15:42.450
And just to the hockey fight point,
384
00:15:42.450 --> 00:15:44.730
the facts of the fight are described very differently
385
00:15:44.730 --> 00:15:46.050
by different witnesses.
386
00:15:46.050 --> 00:15:48.300
And it is very possible that the point
387
00:15:48.300 --> 00:15:52.560
at which Mr. Korea is engaged with the sweatshirt,
388
00:15:52.560 --> 00:15:53.970
that there was only punching going on.
389
00:15:53.970 --> 00:15:57.453
So I would just direct the court to the facts as stated.
390
00:15:59.400 --> 00:16:02.250
Do you want us to change our prior case law
391
00:16:02.250 --> 00:16:04.140
on rap lyrics?
392
00:16:04.140 --> 00:16:06.480
Because you argue at some points for sort
393
00:16:06.480 --> 00:16:10.170
of a bright line rule that rap lyrics should, there's two,
394
00:16:10.170 --> 00:16:12.780
it's too hard to separate fact from fiction,
395
00:16:12.780 --> 00:16:16.890
the person from their persona, and we shouldn't do this.
396
00:16:16.890 --> 00:16:18.790
Is that what you're arguing or you're not?
397
00:16:18.790 --> 00:16:22.740
Yeah, so I'm arguing for a not really, so Grace--
398
00:16:22.740 --> 00:16:23.703
Let me just add one
399
00:16:23.703 --> 00:16:24.536
(indistinct).
Yeah, of course.
400
00:16:24.536 --> 00:16:26.790
And what happens when the defense
401
00:16:26.790 --> 00:16:29.700
is also turning to rap lyrics?
402
00:16:29.700 --> 00:16:33.450
'Cause we can't ignore that rap lyrics are on both sides.
403
00:16:33.450 --> 00:16:35.417
So what are you?
404
00:16:35.417 --> 00:16:37.440
'Cause the most interesting part of the case is,
405
00:16:37.440 --> 00:16:39.900
the most important part is how should we treat rap lyrics?
406
00:16:39.900 --> 00:16:41.690
So what do you want us to do differently?
407
00:16:41.690 --> 00:16:43.350
So I think, so first of all,
408
00:16:43.350 --> 00:16:44.550
I think you can treat...
409
00:16:45.960 --> 00:16:47.400
Korea is posting an entire rap song,
410
00:16:47.400 --> 00:16:49.410
and Mr. Martins is choosing specific phrases
411
00:16:49.410 --> 00:16:51.300
at specific times, I still think there's a difference.
412
00:16:51.300 --> 00:16:53.400
But you can apply the standard that I'm asking for
413
00:16:53.400 --> 00:16:55.080
to both of these things, which is,
414
00:16:55.080 --> 00:16:57.390
if you have a threshold standard recognizing,
415
00:16:57.390 --> 00:17:00.270
and Gray says this, Gray says that we shouldn't necessarily
416
00:17:00.270 --> 00:17:02.850
be taking this form of art literally.
417
00:17:02.850 --> 00:17:04.620
So when can we take it literally?
418
00:17:04.620 --> 00:17:07.133
And I would suggest that the court have a standard for that.
419
00:17:07.133 --> 00:17:11.220
What's the role of the judge in terms of limiting his use?
420
00:17:11.220 --> 00:17:13.950
I'm, again, 'cause it's complicated.
421
00:17:13.950 --> 00:17:15.840
I think the judge should act as gatekeeper.
422
00:17:15.840 --> 00:17:18.420
And I believe that the judge should determine whether
423
00:17:18.420 --> 00:17:21.210
or not there's a strong nexus between the facts subject
424
00:17:21.210 --> 00:17:24.030
to prosecution and what's in the rap lyrics,
425
00:17:24.030 --> 00:17:27.090
and decide whether or not, therefore the rap lyrics can be
426
00:17:27.090 --> 00:17:28.380
taken as literal.
427
00:17:28.380 --> 00:17:29.700
And that would provide--
428
00:17:29.700 --> 00:17:31.260
Say in Gray.
429
00:17:31.260 --> 00:17:33.480
Gray is a little bit less clear than that,
430
00:17:33.480 --> 00:17:36.180
so I'm asking for a clarification of Gray mostly
431
00:17:36.180 --> 00:17:39.840
on that point to say, when can we take these literal?
432
00:17:39.840 --> 00:17:42.990
Strong nexus of fact, sufficient level of similarity
433
00:17:42.990 --> 00:17:44.785
with temporal proximity.
434
00:17:44.785 --> 00:17:46.080
Whatever standard you might fashion,
435
00:17:46.080 --> 00:17:48.090
there are a lot of cases in different jurisdictions
436
00:17:48.090 --> 00:17:49.140
that you use different language.
437
00:17:49.140 --> 00:17:51.270
Whatever we come up with?
438
00:17:51.270 --> 00:17:53.700
I think under any of the standards that I've cited
439
00:17:53.700 --> 00:17:56.550
that these lyrics would've been inadmissible.
440
00:17:56.550 --> 00:17:59.100
So I would be happy with whatever you come up with.
441
00:18:00.060 --> 00:18:02.790
So I'm sorry, can you answer Justice Kafter's question?
442
00:18:02.790 --> 00:18:07.740
It's a strong nexus, temporal proximity.
443
00:18:07.740 --> 00:18:09.240
Anything else?
444
00:18:09.240 --> 00:18:10.650
No, and I guess, I just wanna give you--
445
00:18:10.650 --> 00:18:11.490
Clarify Gray.
446
00:18:11.490 --> 00:18:13.293
An example of something that would have a strong access
447
00:18:13.293 --> 00:18:14.843
in a temporal proximity, just to--
448
00:18:14.843 --> 00:18:16.740
Well, I mean, I think we have an example
449
00:18:16.740 --> 00:18:19.320
in the Seventh Circuit's case in Foster, right?
450
00:18:19.320 --> 00:18:22.050
Yeah, or any of the cases where there's a confession,
451
00:18:22.050 --> 00:18:24.570
some sort of thing like that, that's a clear, easy example.
452
00:18:24.570 --> 00:18:26.820
I think some of the examples like this where the rap lyrics
453
00:18:26.820 --> 00:18:29.413
were posted far before, written probably even further.
454
00:18:29.413 --> 00:18:31.313
Does you rule work both ways?
455
00:18:31.313 --> 00:18:32.146
Say it again.
456
00:18:32.146 --> 00:18:33.630
Does your rule work both ways?
457
00:18:33.630 --> 00:18:36.930
It should, and it would work in this case.
458
00:18:36.930 --> 00:18:39.690
The phrases that Mr. Martins posted
459
00:18:39.690 --> 00:18:42.150
and uttered during the fight had a strong nexus
460
00:18:42.150 --> 00:18:43.450
to the facts of this case.
461
00:18:44.490 --> 00:18:46.920
But let me push back on you on that,
462
00:18:46.920 --> 00:18:50.220
because if I quoted something from sort of some sort
463
00:18:50.220 --> 00:18:55.220
of 19th century or 18th century poet in the moment,
464
00:18:57.180 --> 00:19:00.540
it doesn't seem to me that the temporal proximity means
465
00:19:00.540 --> 00:19:04.533
anything for what Mr. Martin suggested by his quote.
466
00:19:05.670 --> 00:19:06.990
It could have been a rap lyric
467
00:19:06.990 --> 00:19:09.330
from like the '80s, who cares?
468
00:19:09.330 --> 00:19:10.440
It was a threat.
469
00:19:10.440 --> 00:19:12.120
It was a threat during the fight.
470
00:19:12.120 --> 00:19:14.070
So I guess to the extent there's temporal proximity,
471
00:19:14.070 --> 00:19:16.473
it was during the fight.
472
00:19:18.120 --> 00:19:20.730
Yeah, but the lyric itself need not be written then.
473
00:19:20.730 --> 00:19:21.563
No.
474
00:19:21.563 --> 00:19:22.396
Right.
475
00:19:22.396 --> 00:19:23.733
Sorry, I wasn't clear.
476
00:19:25.050 --> 00:19:27.240
Okay, any other questions?
477
00:19:27.240 --> 00:19:28.073
Thank you.
478
00:19:29.640 --> 00:19:30.790
Okay, Attorney Black.
479
00:19:50.340 --> 00:19:51.900
Good morning, may it please the court,
480
00:19:51.900 --> 00:19:53.650
Johanna Black for the Commonwealth.
481
00:19:54.990 --> 00:19:58.320
So this defendant with respect to the rap lyrics tells
482
00:19:58.320 --> 00:20:02.040
the jury on direct examination that he views,
483
00:20:02.040 --> 00:20:05.460
or considers, rap lyrics to be literal statements
484
00:20:05.460 --> 00:20:08.580
of a performer's, a rap performer, state of mind.
485
00:20:08.580 --> 00:20:12.150
So here he's telling the jury the victim who's quoting
486
00:20:12.150 --> 00:20:16.020
another rapper, another artist lyrics, meant them literally.
487
00:20:16.020 --> 00:20:18.480
And that he, as a rapper himself,
488
00:20:18.480 --> 00:20:20.880
took them and interpreted them literally.
489
00:20:20.880 --> 00:20:25.080
That is evidence of what the defendant thinks
490
00:20:25.080 --> 00:20:28.170
when he writes his own lyrics and performs his own lyrics.
491
00:20:28.170 --> 00:20:29.003
It's evidence--
492
00:20:29.003 --> 00:20:31.604
Even when he's performing under a different persona,
493
00:20:31.604 --> 00:20:36.604
he's got a name, it's not his rap lyric directly,
494
00:20:36.810 --> 00:20:39.960
he's doing it as, I can't remember, attack Dollar Sign
495
00:20:39.960 --> 00:20:40.793
or something like that.
496
00:20:40.793 --> 00:20:42.720
He's got a particular--
497
00:20:42.720 --> 00:20:43.650
Ace Stacks.
498
00:20:43.650 --> 00:20:46.514
Yeah, that he's separating himself
499
00:20:46.514 --> 00:20:51.210
from the person performing in certain ways, isn't he?
500
00:20:51.210 --> 00:20:55.800
So many, if not most rappers,
501
00:20:55.800 --> 00:20:58.590
have different names than the names they were given
502
00:20:58.590 --> 00:21:00.750
at birth, including white rappers.
503
00:21:00.750 --> 00:21:03.450
And there's evidence at trial that this defendant went
504
00:21:03.450 --> 00:21:04.530
by the nickname Ace,
505
00:21:04.530 --> 00:21:08.670
and the name he uses on YouTube to which he posts
506
00:21:08.670 --> 00:21:11.223
his rap music is Ace Stacks.
507
00:21:12.660 --> 00:21:13.950
That's what his friend?
508
00:21:13.950 --> 00:21:14.783
Sorry?
509
00:21:14.783 --> 00:21:17.070
What his friends call him, that's his name out
510
00:21:17.070 --> 00:21:20.580
in the community or is that the name when he raps?
511
00:21:20.580 --> 00:21:22.343
Ace is his name out in the community,
512
00:21:22.343 --> 00:21:27.343
but the Ace a Stacks is his profile name on YouTube.
513
00:21:28.770 --> 00:21:31.440
The victim's profile name on Facebook,
514
00:21:31.440 --> 00:21:33.090
another social media forum
515
00:21:33.090 --> 00:21:37.200
is also not the name he was given at birth, it's LJ Capone,
516
00:21:37.200 --> 00:21:39.300
which according to the defendant
517
00:21:39.300 --> 00:21:41.940
is a reference to the rapper La Capone.
518
00:21:41.940 --> 00:21:44.640
So I don't think that fact in of itself
519
00:21:44.640 --> 00:21:47.310
is really deserving of much weight
520
00:21:47.310 --> 00:21:49.290
in trying to determine whether
521
00:21:49.290 --> 00:21:52.290
to take the defendant's own lyrics literally or not.
522
00:21:52.290 --> 00:21:57.150
But assuming that the defendant's lyrics are relevant,
523
00:21:57.150 --> 00:21:58.140
what do we do about the fact
524
00:21:58.140 --> 00:22:00.960
that there was no limiting instruction?
525
00:22:00.960 --> 00:22:03.720
So I think the fact that on redirect
526
00:22:03.720 --> 00:22:06.180
the defense took the opportunity to allow the defendant
527
00:22:06.180 --> 00:22:10.110
to explain that what he writes or he performed
528
00:22:10.110 --> 00:22:12.799
were not literal descriptions of his own life,
529
00:22:12.799 --> 00:22:16.530
it was about what he viewed in the community around him,
530
00:22:16.530 --> 00:22:21.210
is I think this court can consider that in what--
531
00:22:21.210 --> 00:22:26.210
There's a problem, the objection has been overruled,
532
00:22:27.466 --> 00:22:31.650
the motion for a mistrial has been denied
533
00:22:31.650 --> 00:22:35.310
and now the defense attorney on redirect asks questions.
534
00:22:35.310 --> 00:22:36.330
You were absolutely right,
535
00:22:36.330 --> 00:22:40.290
that was my first question to the appellant,
536
00:22:40.290 --> 00:22:42.330
ask questions going exactly
537
00:22:42.330 --> 00:22:46.533
to judge Davis's theory of admissibility.
538
00:22:47.520 --> 00:22:50.953
But what's the defense attorney to do at that point?
539
00:22:50.953 --> 00:22:52.350
The rulings were all lost
540
00:22:52.350 --> 00:22:54.878
now the defense attorney has to use
541
00:22:54.878 --> 00:22:56.250
what the defense attorney has.
542
00:22:56.250 --> 00:22:58.380
Well, I think where the defense was relying
543
00:22:58.380 --> 00:23:01.110
on the literal interpretation of the rap lyrics used
544
00:23:01.110 --> 00:23:03.870
by the victim, eliminating instruction to tell the jurors
545
00:23:03.870 --> 00:23:08.100
that rap lyrics may not be taken as literal,
546
00:23:08.100 --> 00:23:09.750
I mean what would be the--
547
00:23:09.750 --> 00:23:10.710
Different instruction.
548
00:23:10.710 --> 00:23:13.230
I guess what would be the limiting instruction?
549
00:23:13.230 --> 00:23:17.487
So the defendant's state of mind
550
00:23:17.487 --> 00:23:19.500
and the victim's state of mind
551
00:23:19.500 --> 00:23:21.510
are two different theories of admissibility.
552
00:23:21.510 --> 00:23:22.980
And the judge has the ability
553
00:23:22.980 --> 00:23:26.850
to give a different instruction as to both.
554
00:23:26.850 --> 00:23:28.953
So that's not really the theory.
555
00:23:33.537 --> 00:23:38.537
The only Facebook post of the victim holding a gun
556
00:23:40.500 --> 00:23:42.270
or what appeared to be a gun with the caption,
557
00:23:42.270 --> 00:23:44.070
don't let a sneak this into a murder
558
00:23:45.030 --> 00:23:48.670
that the defendant says he viewed right before the fight
559
00:23:50.490 --> 00:23:53.250
that wasn't admitted for the victim's state of mind
560
00:23:53.250 --> 00:23:54.720
that was admitted for the purpose
561
00:23:54.720 --> 00:23:56.403
of the defendant's state of mind.
562
00:23:57.960 --> 00:24:01.650
Judge Davis, I believe the only other evidence
563
00:24:03.480 --> 00:24:06.150
that was admitted relevant to the victim's state of mind
564
00:24:06.150 --> 00:24:10.410
was the Ajiten evidence, which was the DYS punch.
565
00:24:10.410 --> 00:24:13.260
And he would've allowed in some other incidents
566
00:24:13.260 --> 00:24:17.220
had the defense come up with admissible evidence of them.
567
00:24:17.220 --> 00:24:21.510
But the Facebook posts by the victim,
568
00:24:21.510 --> 00:24:23.460
Judge Davis finally allowed those in
569
00:24:23.460 --> 00:24:26.190
when the defense started to say,
570
00:24:26.190 --> 00:24:27.600
we're gonna put the defendant on the stand
571
00:24:27.600 --> 00:24:29.550
and testify that he saw them.
572
00:24:29.550 --> 00:24:32.250
And that's when the lower court believed
573
00:24:32.250 --> 00:24:34.200
they became relevant to the defendant's state of mind.
574
00:24:34.200 --> 00:24:36.000
Yeah., but the chief's question,
575
00:24:36.000 --> 00:24:37.410
what about the limiting instruction?
576
00:24:37.410 --> 00:24:39.900
They could have used that evidence to think
577
00:24:39.900 --> 00:24:44.820
this is a North, South animosity.
578
00:24:44.820 --> 00:24:47.310
So you're asking?
No limiting instruction.
579
00:24:47.310 --> 00:24:51.690
So you're asking that if it was a problem,
580
00:24:51.690 --> 00:24:53.430
there was no limiting instruction
581
00:24:53.430 --> 00:24:57.060
essentially limiting the juror's consideration of rap lyrics
582
00:24:57.060 --> 00:25:00.010
that they cannot take them literally, is that what you're?
583
00:25:00.010 --> 00:25:03.960
Well, it's available for all the propensity purposes
584
00:25:03.960 --> 00:25:06.600
because there was no limiting instruction.
585
00:25:06.600 --> 00:25:10.230
Judge Davis allowed the evidence in, as you just said,
586
00:25:10.230 --> 00:25:14.340
as it speaks to what the defendant's state of mind was,
587
00:25:14.340 --> 00:25:16.260
because this is who is the first aggressive
588
00:25:16.260 --> 00:25:18.600
for excessive force and self-defense.
589
00:25:18.600 --> 00:25:22.860
It wasn't admissible for the truth of those words
590
00:25:22.860 --> 00:25:25.110
because that's not why Judge Davis allowed it in,
591
00:25:25.110 --> 00:25:28.140
but the jury could consider it for all those reasons.
592
00:25:28.140 --> 00:25:30.210
Well, so my understanding of the case law with respect
593
00:25:30.210 --> 00:25:32.160
to just general prior bad acts
594
00:25:32.160 --> 00:25:34.470
is that a court doesn't have to sue (indistinct)
595
00:25:34.470 --> 00:25:36.090
give limiting instruction,
596
00:25:36.090 --> 00:25:39.180
that the defense should request one,
597
00:25:39.180 --> 00:25:41.040
and if they don't, then on appeal
598
00:25:41.040 --> 00:25:43.890
that we're in a different posture than how they ask for one.
599
00:25:43.890 --> 00:25:45.870
But with respect to whether the jury
600
00:25:45.870 --> 00:25:46.800
should have been instructed,
601
00:25:46.800 --> 00:25:50.190
don't take these for the truth
602
00:25:50.190 --> 00:25:54.360
they may not necessarily be able to be interpreted literally
603
00:25:54.360 --> 00:25:57.630
that wouldn't have helped the defense because their defense,
604
00:25:57.630 --> 00:26:01.500
their whole defense was based on the victim using lyrics
605
00:26:01.500 --> 00:26:02.670
in a literal way,
606
00:26:02.670 --> 00:26:04.230
so that would've cut against them as well.
607
00:26:04.230 --> 00:26:06.030
And it was more strategic for the defense
608
00:26:06.030 --> 00:26:08.850
that just had the defendant on redirect explain.
609
00:26:08.850 --> 00:26:11.460
Yeah, but I use lyrics as an art form,
610
00:26:11.460 --> 00:26:15.148
I don't view my own lyrics as communing.
611
00:26:15.148 --> 00:26:16.320
No choice, and your point
612
00:26:16.320 --> 00:26:17.920
about the limiting instruction,
613
00:26:17.920 --> 00:26:19.770
it's not just about the appeal,
614
00:26:19.770 --> 00:26:22.020
it's about the fairness of the trial.
615
00:26:22.020 --> 00:26:24.630
When you're weighing probative value and undue prejudice,
616
00:26:24.630 --> 00:26:26.400
you gotta contemplate the effectiveness
617
00:26:26.400 --> 00:26:31.400
of the limiting instruction, so it palpate everything.
618
00:26:31.920 --> 00:26:34.770
Right, but my understanding of the law
619
00:26:34.770 --> 00:26:38.100
is that the court does not have to sue (indistinct).
620
00:26:38.100 --> 00:26:41.640
This is my point, what we're doing right now,
621
00:26:41.640 --> 00:26:44.280
go back to the chief justice buds question.
622
00:26:44.280 --> 00:26:47.100
What about no limiting instruction in the prejudice,
623
00:26:47.100 --> 00:26:50.250
when you're balancing probative value and undue prejudice,
624
00:26:50.250 --> 00:26:52.650
you have to do it contemplating the effectiveness
625
00:26:52.650 --> 00:26:54.750
of the limiting instruction telling the jury
626
00:26:54.750 --> 00:26:57.660
to compartmentalize their minds and use the evidence only
627
00:26:57.660 --> 00:26:59.660
for the purpose for which it's admitted,
628
00:27:00.600 --> 00:27:01.860
and that didn't happen.
629
00:27:01.860 --> 00:27:03.960
Are you arguing that the burdens on the defense attorney
630
00:27:03.960 --> 00:27:06.690
to proffer limited instructions were speculating
631
00:27:06.690 --> 00:27:08.640
as to what the limited instruction could be?
632
00:27:08.640 --> 00:27:09.473
Right.
633
00:27:09.473 --> 00:27:11.240
That was a defense attorney's job, right?
634
00:27:12.150 --> 00:27:13.470
I am saying that in part,
635
00:27:13.470 --> 00:27:14.850
and I think I'm struggling a little bit too
636
00:27:14.850 --> 00:27:16.770
with what would be the limiting instruction.
637
00:27:16.770 --> 00:27:17.603
So in this case,
638
00:27:17.603 --> 00:27:18.450
if you were saying the judge
639
00:27:18.450 --> 00:27:20.940
should have just told the jury only consider these lyrics
640
00:27:20.940 --> 00:27:22.770
for the purpose of the defendant's state of mind
641
00:27:22.770 --> 00:27:24.930
to evidence of his state of mind,
642
00:27:24.930 --> 00:27:29.370
then I think there was other evidence
643
00:27:29.370 --> 00:27:33.210
that there were two essentially groups of friends.
644
00:27:33.210 --> 00:27:36.120
There was, sorry, you're shaking your head.
645
00:27:36.120 --> 00:27:39.990
I'm just saying as to that piece of evidence,
646
00:27:39.990 --> 00:27:41.700
he admitted it as it related
647
00:27:41.700 --> 00:27:42.723
to the defendant's state of mind,
648
00:27:42.723 --> 00:27:44.703
just that piece of evidence there.
649
00:27:46.590 --> 00:27:49.050
And that's where the limiting instruction would've been
650
00:27:49.050 --> 00:27:51.090
so that they couldn't use it for propensity
651
00:27:51.090 --> 00:27:53.013
or the truth of the lyrics.
652
00:27:55.170 --> 00:27:59.040
Right, so with respect
653
00:27:59.040 --> 00:28:02.852
to like talking about the Glock things of that nature.
654
00:28:02.852 --> 00:28:04.202
And North and South.
655
00:28:04.202 --> 00:28:06.300
Well, North and South I don't think
656
00:28:06.300 --> 00:28:11.300
it's not just about the defense state of mind.
657
00:28:12.750 --> 00:28:15.700
It kind gives the jury a full picture of what was going on.
658
00:28:17.550 --> 00:28:19.980
There were these fights that were going on all over the park
659
00:28:19.980 --> 00:28:21.780
and there were over 60 kids,
660
00:28:21.780 --> 00:28:26.230
I think about a hundred kids and other bad acts can come in
661
00:28:28.680 --> 00:28:30.960
not just for a state of mind or intent or motive,
662
00:28:30.960 --> 00:28:33.240
but also to provide the jury with a full picture
663
00:28:33.240 --> 00:28:35.070
of kind of the atmosphere of what was happening
664
00:28:35.070 --> 00:28:35.903
at that time.
665
00:28:35.903 --> 00:28:38.723
I have not heard of that one, that exception
666
00:28:39.780 --> 00:28:42.360
to letting in prior bad acts for atmosphere.
667
00:28:42.360 --> 00:28:45.510
For a fuller picture of what was happening.
668
00:28:45.510 --> 00:28:47.460
So like in DV case is that--
669
00:28:47.460 --> 00:28:50.070
But that's not why he decided to admit it.
670
00:28:50.070 --> 00:28:52.500
Well we didn't really get into it.
671
00:28:52.500 --> 00:28:53.640
Well no, he did.
672
00:28:53.640 --> 00:28:56.670
So early on in the trial when defense
673
00:28:56.670 --> 00:28:58.890
was trying to exclude any gang evidence
674
00:28:58.890 --> 00:29:00.210
and the Commonwealth was saying
675
00:29:00.210 --> 00:29:04.320
that was the reason these fights occurred,
676
00:29:04.320 --> 00:29:08.190
the judge ended up limiting that evidence to,
677
00:29:08.190 --> 00:29:10.860
essentially it was a fight between friends
678
00:29:10.860 --> 00:29:12.810
and that there was a loyalty amongst friends
679
00:29:12.810 --> 00:29:15.810
that didn't need to reference gangs,
680
00:29:15.810 --> 00:29:20.433
so he was allowing it in for the kind of reason
681
00:29:23.910 --> 00:29:26.523
this chaotic atmosphere came to be.
682
00:29:27.690 --> 00:29:29.310
The discussions and the arguments
683
00:29:29.310 --> 00:29:30.143
weren't focused on defendant state of mind.
684
00:29:30.143 --> 00:29:33.180
Counsel when you say he was allowing it in
685
00:29:33.180 --> 00:29:34.890
Are you talking about the rap lyrics
686
00:29:34.890 --> 00:29:36.052
or are you talking about--
687
00:29:36.052 --> 00:29:36.990
(indistinct) evidence way at the beginning
688
00:29:36.990 --> 00:29:37.823
of the trial?
689
00:29:37.823 --> 00:29:39.900
Right, so that's not really the issue
690
00:29:39.900 --> 00:29:41.530
that we're talking about here, I mean the problem--
691
00:29:41.530 --> 00:29:44.310
Well, it is, it's the same thing, it's North, South,
692
00:29:44.310 --> 00:29:45.960
it was South side against North side
693
00:29:45.960 --> 00:29:47.400
that's what the commonwealth was alleging,
694
00:29:47.400 --> 00:29:48.810
and the judge didn't wanna--
If I could just finish
695
00:29:48.810 --> 00:29:50.127
my question that would be great.
696
00:29:50.127 --> 00:29:54.150
So it wasn't that evidence already had come in.
697
00:29:54.150 --> 00:29:57.030
Right now we're talking about on this appeal,
698
00:29:57.030 --> 00:29:58.980
we're talking about the lyrics
699
00:29:58.980 --> 00:30:03.980
regarding the North versus the other South side.
700
00:30:04.200 --> 00:30:07.890
And I'm wondering why the limiting instruction
701
00:30:07.890 --> 00:30:10.650
would not have been helpful,
702
00:30:10.650 --> 00:30:11.580
important.
Important.
703
00:30:11.580 --> 00:30:16.050
Because the reason the judge seemingly led it in was to go
704
00:30:16.050 --> 00:30:19.260
to the state of mind of this particular defendant.
705
00:30:19.260 --> 00:30:22.680
He's someone like this defendant (indistinct), yes.
706
00:30:22.680 --> 00:30:26.460
So what they said was also in evidence in other ways.
707
00:30:26.460 --> 00:30:27.840
So for example,
708
00:30:27.840 --> 00:30:29.490
the South side being at war with the North side,
709
00:30:29.490 --> 00:30:33.360
that was already in evidence as the fight between friends
710
00:30:33.360 --> 00:30:36.030
that had been discussed earlier in the case
711
00:30:36.030 --> 00:30:41.030
about when the defense moved to prevent the Commonwealth
712
00:30:41.190 --> 00:30:42.930
from using the word gangs.
713
00:30:42.930 --> 00:30:45.960
So that was evidence,
714
00:30:45.960 --> 00:30:47.490
Already.
Separate from the lyrics.
715
00:30:47.490 --> 00:30:50.940
But it's the same information.
716
00:30:50.940 --> 00:30:53.160
So you're saying it wasn't prejudicial
717
00:30:53.160 --> 00:30:56.940
because it was just more of the same?
718
00:30:56.940 --> 00:30:58.560
I don't understand your argument, I guess.
719
00:30:58.560 --> 00:31:01.710
Well, my argument is that that evidence about North side
720
00:31:01.710 --> 00:31:05.970
being at war with South side wasn't just admitted
721
00:31:05.970 --> 00:31:07.890
to go to the defendant's state of mind.
722
00:31:07.890 --> 00:31:09.630
It was also providing the jury
723
00:31:09.630 --> 00:31:13.500
with how all these fights amongst about a hundred kids
724
00:31:13.500 --> 00:31:14.613
came to be.
725
00:31:15.840 --> 00:31:18.930
And that was all discussed well before
726
00:31:18.930 --> 00:31:21.360
I think the Commonwealth even knew that lyrics
727
00:31:21.360 --> 00:31:22.193
were gonna be introducing.
728
00:31:22.193 --> 00:31:23.970
So are you saying it was cumulative?
729
00:31:23.970 --> 00:31:27.030
I'm just saying the limiting instruction pertaining
730
00:31:27.030 --> 00:31:30.030
to the rivalry between the friends or the gang
731
00:31:30.030 --> 00:31:31.299
or the North side versus the South side,
732
00:31:31.299 --> 00:31:32.490
No, no, no the limiting in instruction,
733
00:31:32.490 --> 00:31:34.620
as I understood it would've gone
734
00:31:34.620 --> 00:31:39.620
to the use of these rap lyrics to prove a particular thing.
735
00:31:41.220 --> 00:31:43.950
And so the limiting instruction I would've thought
736
00:31:43.950 --> 00:31:47.280
would've been you can only use these rap lyrics
737
00:31:47.280 --> 00:31:50.352
for the defendant's state of mind.
738
00:31:50.352 --> 00:31:53.280
What is the commonwealth problem with that?
739
00:31:53.280 --> 00:31:56.670
Well, I think it also went to providing the jury
740
00:31:56.670 --> 00:31:58.200
with an accurate picture
741
00:31:58.200 --> 00:32:01.080
of what was going on at the park,
742
00:32:01.080 --> 00:32:03.637
at the time the defendant stabbed the victim.
743
00:32:03.637 --> 00:32:06.510
"I love my Glock, now you're dead, " how does that--
744
00:32:06.510 --> 00:32:09.150
So sorry, I'm just focusing on the rivalry,
745
00:32:09.150 --> 00:32:11.703
but if we could move on to the firearm stuff.
746
00:32:13.273 --> 00:32:14.580
Can you really separate that?
747
00:32:14.580 --> 00:32:17.130
I mean can you separate them so finely
748
00:32:17.130 --> 00:32:19.860
that this one replies to rivalry
749
00:32:19.860 --> 00:32:21.270
and this one applies to the gun?
750
00:32:21.270 --> 00:32:23.520
Yes, because if you're just looking at lyrics,
751
00:32:23.520 --> 00:32:27.090
rap lyrics separate and apart from the acts or other wrongs
752
00:32:27.090 --> 00:32:28.350
that they discuss,
753
00:32:28.350 --> 00:32:31.129
that's a different issue of admissibility
754
00:32:31.129 --> 00:32:34.920
and reason for admission.
755
00:32:34.920 --> 00:32:38.970
The acts that they discuss, which are different acts
756
00:32:38.970 --> 00:32:42.420
may come in under 404 B for different reasons.
757
00:32:42.420 --> 00:32:43.253
Don't we?
758
00:32:43.253 --> 00:32:45.540
Back to the question I asked your sister.
759
00:32:45.540 --> 00:32:47.370
We need a limiting.
760
00:32:47.370 --> 00:32:50.933
We we've gotta not allow rap lyrics in generally,
761
00:32:50.933 --> 00:32:54.663
there has to be that factual nexus to what's going on.
762
00:32:55.650 --> 00:32:58.170
Meaning this shouldn't be in the case
763
00:32:58.170 --> 00:33:02.940
unless he's somehow describing what's happening here
764
00:33:02.940 --> 00:33:05.310
or what he's planning on doing, right?
765
00:33:05.310 --> 00:33:09.690
Well I think the defense has a very narrow inaccurate view
766
00:33:09.690 --> 00:33:13.920
of relevance and evidence depends on
767
00:33:13.920 --> 00:33:16.260
not just direct evidence but circumstantial evidence
768
00:33:16.260 --> 00:33:18.720
based on inferences the commonwealth can use.
769
00:33:18.720 --> 00:33:19.620
Bear with me for a second
770
00:33:19.620 --> 00:33:23.550
'cause we asked them what do they think the rule should be
771
00:33:23.550 --> 00:33:24.990
on the disability of rock lyrics
772
00:33:24.990 --> 00:33:28.263
and they talk about a factual nexus and temporal proximity.
773
00:33:30.090 --> 00:33:31.530
It can't just depend on...
774
00:33:31.530 --> 00:33:33.543
This discussion of Glocks,
775
00:33:34.590 --> 00:33:36.720
it's clearly and has nothing to do with the facts
776
00:33:36.720 --> 00:33:38.390
of this case, this is a knife fight.
777
00:33:38.390 --> 00:33:42.420
It does though because the defendant injected evidence
778
00:33:42.420 --> 00:33:44.340
about the victim having firearms
779
00:33:44.340 --> 00:33:45.173
and that's the whole basis.
780
00:33:45.173 --> 00:33:47.790
His description of him having a Glock.
781
00:33:47.790 --> 00:33:50.130
It shows his knowledge and his experience with firearms
782
00:33:50.130 --> 00:33:53.730
and the reasonableness of his fear when a victim is posting
783
00:33:53.730 --> 00:33:55.650
that stuff to social media.
784
00:33:55.650 --> 00:33:59.400
And so you can't just categorically exclude information
785
00:33:59.400 --> 00:34:03.810
from trials, especially not lyrics which are statements
786
00:34:03.810 --> 00:34:04.833
of a defendant.
787
00:34:07.440 --> 00:34:09.840
You can't just make them admissible only
788
00:34:09.840 --> 00:34:12.330
when they strongly relate
789
00:34:12.330 --> 00:34:15.000
to the specific details of the crime.
790
00:34:15.000 --> 00:34:15.833
Why not?
791
00:34:15.833 --> 00:34:16.666
Or when they strongly,
792
00:34:16.666 --> 00:34:20.160
because for example, that's to me I interpret that--
793
00:34:20.160 --> 00:34:24.420
All of the studies and the various conclusions
794
00:34:24.420 --> 00:34:27.780
about how people view rap lyrics,
795
00:34:27.780 --> 00:34:31.530
the tendency that they associate with rap lyrics
796
00:34:31.530 --> 00:34:34.320
in particular as opposed to country music with violence
797
00:34:34.320 --> 00:34:35.970
and gang association.
798
00:34:35.970 --> 00:34:38.130
All the reasons that you're actually standing there
799
00:34:38.130 --> 00:34:41.730
saying we could use them are all the reasons
800
00:34:41.730 --> 00:34:43.950
why perhaps we shouldn't
801
00:34:43.950 --> 00:34:47.370
and certainly shouldn't without limiting instruction.
802
00:34:47.370 --> 00:34:51.390
Well so because rappers talk about their lives too,
803
00:34:51.390 --> 00:34:54.063
it's not just about the details of one crime.
804
00:34:55.050 --> 00:34:55.920
So do country.
805
00:34:55.920 --> 00:34:58.770
I think it might be in the amicus brief.
806
00:34:58.770 --> 00:35:01.530
Country western song that's about drinking,
807
00:35:01.530 --> 00:35:03.810
that we're gonna allow in OUI case?
808
00:35:03.810 --> 00:35:05.160
If it becomes relevant.
809
00:35:05.160 --> 00:35:06.180
Really, I mean?
810
00:35:06.180 --> 00:35:11.180
Yes, so there's a statement about Bob Marley in Gray
811
00:35:16.230 --> 00:35:18.450
and how he sung,
812
00:35:18.450 --> 00:35:19.620
I shot the sheriff.
I shot the sheriff,
813
00:35:19.620 --> 00:35:22.170
but I didn't shoot the deputy I think is the lyrics.
814
00:35:22.170 --> 00:35:23.520
That's right.
815
00:35:23.520 --> 00:35:26.370
So obviously we don't take that literally
816
00:35:26.370 --> 00:35:30.180
there's no any indication that those are literal,
817
00:35:30.180 --> 00:35:31.253
It's a famous song.
818
00:35:32.640 --> 00:35:35.389
Right, it was made famous I think by Eric Clapton,
819
00:35:35.389 --> 00:35:38.580
An OUI case.
820
00:35:38.580 --> 00:35:42.000
They pulled the defendant over and I love this bar
821
00:35:42.000 --> 00:35:44.400
is playing on the radio, right?
822
00:35:44.400 --> 00:35:45.540
Is that admissible?
823
00:35:45.540 --> 00:35:49.350
It depends, so if it's his own song
824
00:35:49.350 --> 00:35:52.380
and he admits I went to that bar earlier,
825
00:35:52.380 --> 00:35:55.110
if there's other information that is indicative
826
00:35:55.110 --> 00:35:58.530
of how those lyrics apply to the case,
827
00:35:58.530 --> 00:36:00.210
like that makes them relevant,
828
00:36:00.210 --> 00:36:03.150
then yes, maybe they should come in, I'm not saying.
829
00:36:03.150 --> 00:36:06.870
Isn't that exactly what you're opposing counsel was saying
830
00:36:06.870 --> 00:36:11.550
that you limit the admissibility to some situations
831
00:36:11.550 --> 00:36:14.250
where there's a close nexus?
832
00:36:14.250 --> 00:36:17.400
But it can't just depend on defense's version of the crime
833
00:36:17.400 --> 00:36:20.400
that occurred or the details in the defense's story
834
00:36:20.400 --> 00:36:23.220
about what happened at that particular crime.
835
00:36:23.220 --> 00:36:27.540
I mean there are so many cases, especially murders,
836
00:36:27.540 --> 00:36:29.100
domestic violence cases that depend
837
00:36:29.100 --> 00:36:31.920
on the history well before the actual crime occurred.
838
00:36:31.920 --> 00:36:32.873
Let's do the relationship
839
00:36:32.873 --> 00:36:35.040
between the victim and the defendant.
840
00:36:35.040 --> 00:36:38.040
How did the rap lyrics illuminate the relationship
841
00:36:38.040 --> 00:36:39.840
between the victim and the defendant?
842
00:36:39.840 --> 00:36:42.120
Well, the victim's friends with people on the North side,
843
00:36:42.120 --> 00:36:45.600
the defendant grew up on the South side
844
00:36:45.600 --> 00:36:46.890
and friends with people on the South side.
845
00:36:46.890 --> 00:36:49.770
And there's evidence at trial that there were,
846
00:36:49.770 --> 00:36:51.420
so for example, I think it was Terrence Taylor
847
00:36:51.420 --> 00:36:56.420
talks about Jose Arias himself
848
00:36:56.940 --> 00:37:01.940
and Johan Martin's being friends and I believe Jose Arias
849
00:37:02.700 --> 00:37:06.630
is from the North side and when the fight started
850
00:37:06.630 --> 00:37:10.773
between Jose Arias and (indistinct) Brandon,
851
00:37:12.210 --> 00:37:14.400
friends of Brandon's jumped in
852
00:37:14.400 --> 00:37:15.577
and that's when the defendant says,
853
00:37:15.577 --> 00:37:17.910
"I jumped in to protect Brandon."
854
00:37:17.910 --> 00:37:20.790
They're both, I believe that the defendant himself testified
855
00:37:20.790 --> 00:37:21.960
that they're both from the South side,
856
00:37:21.960 --> 00:37:24.367
but at a minimum...
857
00:37:24.367 --> 00:37:28.800
Tell me how that exacerbates the prejudice.
858
00:37:28.800 --> 00:37:30.330
He didn't have a chance
859
00:37:30.330 --> 00:37:32.767
or you didn't answer (indistinct) question
860
00:37:32.767 --> 00:37:36.870
about all this other evidence of North, South,
861
00:37:36.870 --> 00:37:41.790
or the defendant's view there might have been a gun
862
00:37:41.790 --> 00:37:43.230
in the backpack.
863
00:37:43.230 --> 00:37:48.230
The rap music wasn't admitted for that purpose.
864
00:37:48.330 --> 00:37:51.630
You point out there's all this other evidence of it.
865
00:37:51.630 --> 00:37:55.316
But if you have this rap music that corroborates
866
00:37:55.316 --> 00:37:57.690
that wasn't admitted for that purpose
867
00:37:57.690 --> 00:38:00.330
and may well not have been when you weighing probative value
868
00:38:00.330 --> 00:38:01.163
and under prejudice
869
00:38:01.163 --> 00:38:03.180
'cause of all the concerns about rap music
870
00:38:04.020 --> 00:38:09.020
then this other evidence actually exacerbates the problem
871
00:38:09.510 --> 00:38:10.620
with lack of eliminating instruction.
872
00:38:10.620 --> 00:38:12.990
Well the judge admitted the rap lyrics
873
00:38:12.990 --> 00:38:14.820
for the defendant's state of mind
874
00:38:14.820 --> 00:38:16.530
with respect to self-defense claim.
875
00:38:16.530 --> 00:38:18.003
To the jury, right?
876
00:38:20.700 --> 00:38:22.860
That's back to the chief's initial question,
877
00:38:22.860 --> 00:38:24.813
there is no limiting instruction.
878
00:38:25.680 --> 00:38:30.030
Right, but you can't just view the admissibility
879
00:38:30.030 --> 00:38:32.880
of evidence through the whole of the story
880
00:38:32.880 --> 00:38:34.590
that the defense wants you to believe.
881
00:38:34.590 --> 00:38:36.930
I mean, the commonwealth had a whole different theory
882
00:38:36.930 --> 00:38:39.180
of the case that it's entitled to present,
883
00:38:39.180 --> 00:38:40.150
and when the judge missed...
884
00:38:40.150 --> 00:38:42.720
Because he was a rapper, he was--
885
00:38:42.720 --> 00:38:45.660
No, but if there's a rivalry between two groups of people
886
00:38:45.660 --> 00:38:48.240
and one on the other side is showing guns
887
00:38:48.240 --> 00:38:50.610
and this defendant on is showing guns,
888
00:38:50.610 --> 00:38:52.620
like it does go to his state of mind
889
00:38:52.620 --> 00:38:54.420
and whether he really was this.
890
00:38:54.420 --> 00:38:56.310
What does it matter your theory of the case
891
00:38:56.310 --> 00:38:58.980
if the judge makes it a pointed decision
892
00:38:58.980 --> 00:39:01.230
about the only reason why he's allowing
893
00:39:01.230 --> 00:39:02.463
in a piece of evidence.
894
00:39:03.570 --> 00:39:05.790
He didn't say it wasn't for the commonwealth theory
895
00:39:05.790 --> 00:39:06.623
of the case.
896
00:39:06.623 --> 00:39:09.236
He said he's letting it in to--
897
00:39:09.236 --> 00:39:10.069
For the defense state of mind.
898
00:39:10.069 --> 00:39:10.937
Right, so forget about your--
899
00:39:10.937 --> 00:39:13.110
That's the commonwealth's rebuttal
900
00:39:13.110 --> 00:39:15.690
to the defense's raising a self defense claim.
901
00:39:15.690 --> 00:39:17.970
We're showing it wasn't done in self-defense
902
00:39:17.970 --> 00:39:19.380
that there was a rivalry going on,
903
00:39:19.380 --> 00:39:20.820
he wasn't that afraid of someone
904
00:39:20.820 --> 00:39:22.980
on the other side flashing weapons
905
00:39:22.980 --> 00:39:25.170
'cause he himself communicates to the world
906
00:39:25.170 --> 00:39:27.330
by his public postings to YouTube
907
00:39:27.330 --> 00:39:30.690
that he knows about firearms, he flashes firearms around
908
00:39:30.690 --> 00:39:32.793
and that there's this rivalry going on.
909
00:39:34.050 --> 00:39:36.810
It came in for the grand state of mind, the lyrics,
910
00:39:36.810 --> 00:39:38.430
but the acts they discuss can come in.
911
00:39:38.430 --> 00:39:40.863
Can I just say one other thing very briefly on.
912
00:39:41.850 --> 00:39:42.780
I have one last question.
913
00:39:42.780 --> 00:39:45.690
Okay, yeah, we've talked about this a lot
914
00:39:45.690 --> 00:39:47.190
and I think we get where you--
915
00:39:47.190 --> 00:39:49.530
Can I ask one last question about,
916
00:39:49.530 --> 00:39:50.580
say we disagree with you
917
00:39:50.580 --> 00:39:52.470
and we think this was error.
918
00:39:52.470 --> 00:39:54.900
The standard review is what
919
00:39:54.900 --> 00:39:57.487
and why don't you tell us how you meet the standard review
920
00:39:57.487 --> 00:39:58.710
of it was an error.
921
00:39:58.710 --> 00:40:00.690
Sure, it's substantial risk.
922
00:40:00.690 --> 00:40:04.110
It's not prejudicial error.
923
00:40:04.110 --> 00:40:08.160
And I just wanna kind of recite why,
924
00:40:08.160 --> 00:40:10.983
because I know defense brought this up again and reply.
925
00:40:12.420 --> 00:40:15.480
The initial objection that defense raised
926
00:40:15.480 --> 00:40:16.590
at the appropriate time
927
00:40:16.590 --> 00:40:18.300
was based on notice under Ajiten,
928
00:40:18.300 --> 00:40:20.700
you can't ignore the legal grounds the defense moved
929
00:40:20.700 --> 00:40:22.470
under in front of the lower court
930
00:40:22.470 --> 00:40:24.090
at the appropriate time to raise objection,
931
00:40:24.090 --> 00:40:25.890
which was notice under Ajiten.
932
00:40:25.890 --> 00:40:29.010
Ajiten applies to a very specific category,
933
00:40:29.010 --> 00:40:30.630
subcategory of prior bad acts
934
00:40:30.630 --> 00:40:32.880
and that specific acts of violence.
935
00:40:32.880 --> 00:40:36.300
And there are notice provisions associated with that case.
936
00:40:36.300 --> 00:40:37.620
And so to the judge,
937
00:40:37.620 --> 00:40:40.293
and you can tell by the way he responds to it,
938
00:40:41.250 --> 00:40:43.050
in his response at one point
939
00:40:43.050 --> 00:40:45.180
he did use the general term (indistinct)
940
00:40:45.180 --> 00:40:46.833
but he's saying again,
941
00:40:48.000 --> 00:40:49.830
and it looks like there's a type on the transcript that.
942
00:40:49.830 --> 00:40:51.150
You're arguing the merits again,
943
00:40:51.150 --> 00:40:53.580
I'm just trying to say we disagree with you.
944
00:40:53.580 --> 00:40:57.150
I'm giving you a chance to explain why this error
945
00:40:57.150 --> 00:40:59.940
is not reversible error, if it is error.
946
00:40:59.940 --> 00:41:02.460
So you agree with the commonwealth on substantial risk?
947
00:41:02.460 --> 00:41:03.360
No.
948
00:41:03.360 --> 00:41:05.460
No, I haven't figured out
949
00:41:05.460 --> 00:41:08.520
whether it's substantial risk or prejudicial error, but I--
950
00:41:08.520 --> 00:41:09.910
I was just trying to explain why it's substantial risk.
951
00:41:09.910 --> 00:41:11.463
Okay, go ahead, sorry.
952
00:41:12.390 --> 00:41:14.280
So the only objection
953
00:41:14.280 --> 00:41:18.750
that really would preserve any rights for appeal
954
00:41:18.750 --> 00:41:21.330
was the one the council made on April 2nd,
955
00:41:21.330 --> 00:41:22.740
and that was objection
956
00:41:22.740 --> 00:41:25.298
as to lack of notice under Ajiten.
957
00:41:25.298 --> 00:41:28.631
It wasn't about first amendment speech or Gray.
958
00:41:28.631 --> 00:41:32.160
All right, assuming it's the substantial risk analysis.
959
00:41:32.160 --> 00:41:35.700
Now tell us why it's not a substantial risk.
960
00:41:35.700 --> 00:41:39.480
Because of the strength of the commonwealth case.
961
00:41:39.480 --> 00:41:40.680
Even aside from that,
962
00:41:40.680 --> 00:41:43.980
and also the fact that the defendant wasn't convicted
963
00:41:43.980 --> 00:41:44.970
of first degree murder,
964
00:41:44.970 --> 00:41:47.100
he was convicted of voluntary manslaughter,
965
00:41:47.100 --> 00:41:48.720
which to get there.
966
00:41:48.720 --> 00:41:49.590
One of the ways to get there
967
00:41:49.590 --> 00:41:52.740
is when a person uses excessive force and self-defense.
968
00:41:52.740 --> 00:41:55.380
So there is a very strong likelihood
969
00:41:55.380 --> 00:41:58.540
that the jury believed the defendant's self-defense claim
970
00:41:59.790 --> 00:42:01.620
and that's how they got to voluntary manslaughter.
971
00:42:01.620 --> 00:42:04.590
But the rest of the commonwealth's case was very strong.
972
00:42:04.590 --> 00:42:07.458
I mean, just because the police described contact
973
00:42:07.458 --> 00:42:10.860
between the defendant and the victim as upper cuts
974
00:42:10.860 --> 00:42:14.130
because they couldn't see super clearly what was going on.
975
00:42:14.130 --> 00:42:15.840
That is circumstantial evidence
976
00:42:15.840 --> 00:42:17.430
of when the stabbing occurred.
977
00:42:17.430 --> 00:42:22.430
So the defendant didn't end up challenging identification
978
00:42:22.680 --> 00:42:24.090
and it really just boiled down
979
00:42:24.090 --> 00:42:28.380
to whether he acted in appropriate reasonable self defense.
980
00:42:28.380 --> 00:42:32.940
So and if you're looking at substantial risk
981
00:42:32.940 --> 00:42:34.370
and the fact that...
982
00:42:36.450 --> 00:42:37.800
Yeah, so I think it's just the strength
983
00:42:37.800 --> 00:42:39.330
of the Commonwealth's case
984
00:42:39.330 --> 00:42:40.830
and the fact that he wasn't convicted
985
00:42:40.830 --> 00:42:41.703
of first degree murder, that he was,
986
00:42:41.703 --> 00:42:44.280
that the conviction is supported
987
00:42:44.280 --> 00:42:48.093
by the evidence, apart from the lyrics.