-: SJC-13223, (indistinct) vs (indistinct).
-: Good morning.
-: Good morning, Chief Justice Budd and associate justices.
And may it please the court.
Eva (indistinct) on behalf of a (indistinct) Korea.
I'm gonna spend most of my time on the rap lyrics,
but I, of course, welcome any other questions.
Here, irrelevant and inflamatory rap lyric evidence reached
the jurors, and they were permitted
to use those rap lyrics for any purpose.
The lyrics were inflammatory based upon their content,
violence, guns, shooting, gang imagery,
hostility towards the police, prior bad acts.
But also--
Judge: There was no limiting instruction?
-: There was no limiting instruction.
-: I recognize that.
But on redirect day, after the mistrial was denied,
the defense attorney brought up the non propensity purpose
for which Judge Davis seemed to have allowed the evidence in
as it relates to how the defendant would've taken
the victim statements,
considering the defendant's own postings in state of mind.
That was the theory of relevance.
Why is that theory of relevance not available
as a non-propensity purpose?
-: So you're asking a question about relevance,
you're also asking how it came in, so yes, on redirect,
Mr. Korea described what the rap meant to him.
So I'm gonna go all the way down to,
I think I'll say this first, let me preface this.
Even if these lyrics were marginally relevant in any way,
they were substantially outweighed
by their prejudicial value.
But I can jump into relevance first.
And I also need one more preface.
I'm gonna get to your how Mr. Korea would've interpreted
the post, I promise.
But one more preface,
this court in Gray stated that rap lyrics shouldn't
necessarily be taken as literal.
And before we can take these rap lyrics as literal,
I think I would ask the court
to adopt some sort of standard.
Some sort of standard to say that there's a strong nexus
of fact between the lyrics
and the case before the rap lyrics.
-: Isn't the defense premised on a literal interpretation
of rap lyrics too?
I mean, the basis of the self-defense is a rap lyric, right?
-: So not exactly, and it's a little bit different.
So the reason that Mr. Korea understood
what Mr. Martin said directly to him was
because those phrases were made popular
by rap music.
So during this fight, Mr. Martins states to him,
"Do you know how the hot shit feel?"
And to him, because rap is popular in their community,
he understands that to mean,
"I'm going to shoot you." -: Can I go backwards
for a second?
I'm not sure that Justice Kafker was alluding to that,
because if I remember correctly,
Mr. Korea said that there were Facebook postings
where the decedent had quoted other rap lyrics
that Mr. Korea used,
and that was used by the defense in the state
of mind of Mr. Korea as to why he thought he had
to resort to what he did.
So if we could go back to that for a second,
because I'm wondering why it is that we get
to consider the content for the truth
when it's to his benefit as
to the reasonableness of his fear,
but in converse, we can't consider it when it comes
to the rap lyrics that he posted.
Can you explain that to me?
-: There's an element of temporal proximity here,
just to start with,
and that's discussed in some of the cases
in the other jurisdiction.
So the lyric that you're referring to,
and you can see it as Exhibit 60,
was posted as a single phrase on Mr. Martins' Facebook,
only hours before this fight occurred.
It was not an entire rap song, it was not a very long lyric,
it was a specific phrase that he selected
and posted with a picture of himself,
not a picture of the rap cover or something like that,
picture of himself, a specific phrase,
and it included the word murder.
And it wasn't used,
so the idea that the evidence was relevant to Mr. Korea,
that he, as the judge said, that he felt like he needed
to stab Mr. Martins because of postings,
that's not quite right,
that's not what Mr. Korea testified to.
Mr. Korea testified that when he was threatened directly
by Mr. Martins with a shooting,
when Mr. Martins reached toward the backpack,
toward the zipper, where a gun could have reasonably been
kept, and since Mr. Martins had been wearing this clothing
that indicated that he was up to no good, in that moment,
Mr. Martins also remembered that he had seen only hours
before that Mr. Martins posted the word murder.
Now, did Mr. Korea explain what that phrase meant?
Sneak dissing based on a rap lyric?
Yes, that was how he understood what Mr. Martins
had posted only hours earlier.
So that's a little different than...
Can I--
Judge: There's another rap lyric, though,
which is the fir--
-: The first one he said directly
to Mr. Korea during the fight.
-: But again, you have to interpret it literally, right?
If your whole basis of your argument is the rap lyrics
are metaphorical, or personas rather than the person,
we're interpreting the other phrase literally though,
you want us to have it, it's a two-way street.
We don't need to be consistent.
-: So these are different things, respectfully,
Justice Kafker, these are different things.
And when you state a phrase during a fight at someone,
while you are reaching to a place
where firearm could reasonably be kept,
that has a strong nexus to the facts of the case.
When you post--
-: Counsel, it wouldn't matter whether it was a rap lyric--
-: Or anything else.
-: Poetry.
-: Exactly.
-: It's the meaning of the words or what count
and the fact that the person said it.
-: Right, so in the context,
and I think that's what Gray talks about.
We have to see what the context of this is.
-: The exact words are,
"You know how the hot shit feels," right?
That's not self-explanatory.
-: Maybe not for us as older white people,
but for somebody who lived in that community at that time,
where those that music was popular,
and they were all listening to it,
it meant exactly, "I'm gonna shoot you."
-: But she's gonna get up and say the exact same thing
about what your client said.
-: So I didn't actually end up finishing my answer
about the time of parol proximity.
Mr. Korea posted entire songs 11 days before this incident.
They didn't talk about anything specific to this incident.
Mr. Korea did not reference any of his lyrics
during this incident.
So if you're using a lyric during a fight,
looking at someone, telling them,
"Do you know how the hot shit feel?"
And then reaching into a place
where a gun could reasonably be,
that has a strong nexus of fact to what's going on.
If you post 11 days before,
lyrics that are generally violent, generally about shooting,
generally about themes that rap often incorporates,
there's a footnote in Gray where they cite a study that says
that 65% of rap music includes violent themes.
This is common.
This is not the same thing as a strong nexus
of fact where you're being threatened
with a specific phrase at a specific time during the fight.
If Mr. Korea had said any of these lyrics during the fight,
they would be relevant, and the songs might be relevant,
but he did not.
Judge: I'd just like to go back to my initial question.
-: Absolutely.
-: All these theories of relevance
about the Glock were North and South.
That wasn't the theory of admissibility.
Counsel: It wasn't,
-: So this was all well and good,
but there's no limiting instruction,
and that's not the theory of admissibility.
-: Absolutely.
So Judge Davis lets it in because he believes
that it's important to hear the defendant statements
to understand how he would've taken the victim statements.
That's the theory of admissibility, right?
That's the theory of admisiibility,
all this other stuff is not the fear of admisibility.
The defense attorney on redirect brings
all that evidence out into the forefront,
the exact theory of relevance.
How did you?
What'd you think of the rap?
So why isn't it if the jury certainly,
at least if they'd had heard it, a limiting instruction,
"Be able to focus on that relevance?"
-: Well, I mean, if they didn't have a limiting instruction,
and they could have used it for any purpose.
And whatever defense counsel was able
to do with it after she was unable to get it excluded.
I don't know if you're asking, does it make it relevant,
or does it cure it somehow cure the prejudice?
But it doesn't make it relevant because she had
to discuss what the rap meant.
But I would like to go how Mr. Korea would've interpreted
the post, 'cause that is the theory of relevance.
So, number one, it's a little too broad.
Mr. Korea, how someone would've...
If a certain online post is relevant,
it doesn't necessarily mean
that all online posts are relevant.
And it's a little apples to oranges.
We have a rap song versus a photograph
of Mr. Martin's possessing a firearm,
which defense counsel used in her argument
and asked Mr. Korea questions about having to do with,
or Mr. Korea responded that when he heard
Mr. Martins threaten him, he thought back to the fast fact
that he had seen photographs
of Mr. Martins possessing a firearm.
So it's a little bit different than a rap song.
And again, I think selecting a particular lyric,
including the word murder,
three hours before you go to the park,
dressed in the manner that Mr. Martins was,
that has a stronger nexus effect.
And defense counsel didn't argue that...
I'm sorry.
I think it's a stretch to say that Mr. Korea was thinking
about how his rap songs would've affected the fact
that he saw Mr. Martins post a firearm
or post the word murder.
Justice Lowy: That leads to...
-: I'm sorry, Justice Lowy.
Justice Lowy: You go, please.
-: I'm still back
to Justice Lowy's theory of admissibility.
I understand that particularly as an advocate,
you might be saying that, but the question is whether
or not the jury could consider this.
Because on the one hand, you're arguing
that even though we're not talking
about just the temporal proximity of the hot shit lyric,
but the other stuff that was posted on Facebook,
that all of that went into the state of mind of Mr. Korea
when he did what he did.
And so to the answer of fighting kind of fire with fire
and saying, if you're asking the jury
to believe the reasonableness of his apprehension,
why shouldn't they get to also consider
that he posted rap lyrics?
And it wasn't the all songs
that she used at cross examination,
it was particular lines to which on redirect, he got to say,
"These were all just posts, I didn't really mean it.
This is just me."
Why shouldn't the jury get to consider that when they're
also considering the reasonableness of his apprehension?
It's all the same thing, why is that wrong?
-: I do think that the relevance
is very low if it exists at all.
And I believe that, because I really do think this is apples
to oranges, posting an actual picture showing possession
of a weapon versus a rap lyric.
Posting a rap lyric temporarily to this fight
versus 11 days before.
But even if the court finds that this was somehow relevant
to how Mr. Korea would have interpreted posts
in light of the direct threat, the clothing,
the reaching toward the backpack,
then this evidence was more prejudicial than probative,
and substantially more prejudicial than probative.
-: Let's assume for a moment it is
'cause you run out of time.
The jury came back voluntary manslaughter.
They clearly didn't accept for the truth of what was said
against the defendant.
So Justice George's point, I think is well taken.
We're trying to decide who's the first aggressor
in all those issues,
and why shouldn't the defendant's state of mind come
into play if the victim's state of mind is in play.
But nonetheless, the jury comes back,
not deliberate premeditation,
they don't clearly don't accept the lyrics
for their truth, or for their propensity purpose.
-: Right, so I think I just wanna say
one thing about prejudice.
I'll move on to prejudicial error,
but rap lyric evidence is inherently prejudicial.
The amicus brief is wonderful, read it, it talks about--
-: By the lack of limiting instruction
that the defendant should have asked for,
that the Commonwealth should have asked
for if the defendant didn't,
and the judge should have given,
even if neither side asked for should have been done
because of all those reasons, but that didn't happen.
-: And respectfully, I don't even know
if a limiting instruction would have
mitigated the prejudice here.
This evidence is inherently prejudicial.
Jurors see rap lyrics as more offensive,
more threatening, more dangerous.
They see black rap artists
as particularly criminal and violent.
Judge: But first degree murder--
-: They didn't, and I'll move on.
-: They got to voluntary manslaughter,
which suggests they weren't interpreting it that way
that you're suggesting.
-: Well, but they could have interpreted it exactly this way.
So the jury could have used this evidence
to determine that Mr.Korea was a violent person.
A violent bad person who would've used more force
than necessary in this case.
The jury could have perceived that Mr. Korea was a violent,
bad person, who did something wrong.
This was not justified, he did something,
he at least did something wrong.
That he's a violent, bad person,
and he would've used more force,
he would've done something wrong.
Judge: Enough force.
I mean, there were 12 stabs.
-: There were not, so just to be clear,
there were not 12 stab wounds.
The medical examiner's evidence is very clear.
There were, I think, three wounds that could be considered
to be stab wounds.
There were six wounds on Mr. Martin's hands,
and I would direct you to my appendix,
I have pictures of those wounds.
And there were additional wounds.
-: Which one was the cause of death?
-: There were two that both the medical examiners said
there were two wounds that both were serious enough
to cause death, and one of those was to the chest
and one of those was to the abdomen.
But the repeating of the 12 stab wounds was actually--
-: Is it your position that if these lyrics weren't in,
the jury could not have so concluded all of those things
about Mr. Korea based on all the other evidence that came in
because it was substantial?
-: No, there were actually,
the evidence in this case was really thin.
A lot of it was through grand jury testimony
and the witnesses had--
-: Well, you heard he was concerned about his cousin,
he armed himself, he went to the park, he found his cousin.
He didn't take his cousin and leave, he stayed.
And he inserted himself after the reason for coming there
was already obviated because he found his little cousin.
He could have laughed, he didn't call the police,
all these other things.
So there's plenty of evidence that they could have
decided that he came down there on a purpose.
Other than these rap lyrics.
-: I take a little exception with some of the things
that you said factually,
and I just wanna hit a couple of them.
There was was no evidence that Mr. Korea armed himself
specifically for this fight.
There was evidence-- -: I didn't say that,
I just said that he came down there with a knife.
Okay, you said he armed himself, and he--
-: That's not arming yourself?
Coming down there with a knife?
-: If you always carry a pocket knife,
and that was the evidence.
He didn't arm himself specifically for this fight.
And the evidence was that when he--
-: He puts the shirt over his head like it's a hockey fight,
and makes, maybe there's not 12 stab wounds,
but there's 12 contacts.
And the issue is whether it's excessive force
and self-defense, not whether the rap music was used
for its truth as it relates to premeditation or intent.
-: Right, but the rap lyrics were prevented
to use it for any purpose,
and I believe that they could have used it to think
that Mr. Korea was a violent person.
And that he would've used more force than necessary.
And just to the hockey fight point,
the facts of the fight are described very differently
by different witnesses.
And it is very possible that the point
at which Mr. Korea is engaged with the sweatshirt,
that there was only punching going on.
So I would just direct the court to the facts as stated.
-: Do you want us to change our prior case law
on rap lyrics?
Because you argue at some points for sort
of a bright line rule that rap lyrics should, there's two,
it's too hard to separate fact from fiction,
the person from their persona, and we shouldn't do this.
Is that what you're arguing or you're not?
-: Yeah, so I'm arguing for a not really, so Grace--
-: Let me just add one
(indistinct). -: Yeah, of course.
-: And what happens when the defense
is also turning to rap lyrics?
'Cause we can't ignore that rap lyrics are on both sides.
So what are you?
'Cause the most interesting part of the case is,
the most important part is how should we treat rap lyrics?
So what do you want us to do differently?
-: So I think, so first of all,
I think you can treat...
Korea is posting an entire rap song,
and Mr. Martins is choosing specific phrases
at specific times, I still think there's a difference.
But you can apply the standard that I'm asking for
to both of these things, which is,
if you have a threshold standard recognizing,
and Gray says this, Gray says that we shouldn't necessarily
be taking this form of art literally.
So when can we take it literally?
And I would suggest that the court have a standard for that.
-: What's the role of the judge in terms of limiting his use?
I'm, again, 'cause it's complicated.
-: I think the judge should act as gatekeeper.
And I believe that the judge should determine whether
or not there's a strong nexus between the facts subject
to prosecution and what's in the rap lyrics,
and decide whether or not, therefore the rap lyrics can be
taken as literal.
And that would provide--
-: Say in Gray.
-: Gray is a little bit less clear than that,
so I'm asking for a clarification of Gray mostly
on that point to say, when can we take these literal?
Strong nexus of fact, sufficient level of similarity
with temporal proximity.
Whatever standard you might fashion,
there are a lot of cases in different jurisdictions
that you use different language.
-: Whatever we come up with?
-: I think under any of the standards that I've cited
that these lyrics would've been inadmissible.
So I would be happy with whatever you come up with.
-: So I'm sorry, can you answer Justice Kafter's question?
It's a strong nexus, temporal proximity.
Anything else?
-: No, and I guess, I just wanna give you--
-: Clarify Gray.
-: An example of something that would have a strong access
in a temporal proximity, just to--
-: Well, I mean, I think we have an example
in the Seventh Circuit's case in Foster, right?
-: Yeah, or any of the cases where there's a confession,
some sort of thing like that, that's a clear, easy example.
I think some of the examples like this where the rap lyrics
were posted far before, written probably even further.
-: Does you rule work both ways?
-: Say it again.
-: Does your rule work both ways?
-: It should, and it would work in this case.
The phrases that Mr. Martins posted
and uttered during the fight had a strong nexus
to the facts of this case.
-: But let me push back on you on that,
because if I quoted something from sort of some sort
of 19th century or 18th century poet in the moment,
it doesn't seem to me that the temporal proximity means
anything for what Mr. Martin suggested by his quote.
It could have been a rap lyric
from like the '80s, who cares?
It was a threat.
-: It was a threat during the fight.
So I guess to the extent there's temporal proximity,
it was during the fight.
-: Yeah, but the lyric itself need not be written then.
Counsel: No.
-: Right.
-: Sorry, I wasn't clear.
-: Okay, any other questions?
-: Thank you.
-: Okay, Attorney Black.
-: Good morning, may it please the court,
Johanna Black for the Commonwealth.
So this defendant with respect to the rap lyrics tells
the jury on direct examination that he views,
or considers, rap lyrics to be literal statements
of a performer's, a rap performer, state of mind.
So here he's telling the jury the victim who's quoting
another rapper, another artist lyrics, meant them literally.
And that he, as a rapper himself,
took them and interpreted them literally.
That is evidence of what the defendant thinks
when he writes his own lyrics and performs his own lyrics.
It's evidence--
-: Even when he's performing under a different persona,
he's got a name, it's not his rap lyric directly,
he's doing it as, I can't remember, attack Dollar Sign
or something like that.
He's got a particular--
-: Ace Stacks.
-: Yeah, that he's separating himself
from the person performing in certain ways, isn't he?
-: So many, if not most rappers,
have different names than the names they were given
at birth, including white rappers.
And there's evidence at trial that this defendant went
by the nickname Ace,
and the name he uses on YouTube to which he posts
his rap music is Ace Stacks.
-: That's what his friend?
-: Sorry?
-: What his friends call him, that's his name out
in the community or is that the name when he raps?
-: Ace is his name out in the community,
but the Ace a Stacks is his profile name on YouTube.
The victim's profile name on Facebook,
another social media forum
is also not the name he was given at birth, it's LJ Capone,
which according to the defendant
is a reference to the rapper La Capone.
So I don't think that fact in of itself
is really deserving of much weight
in trying to determine whether
to take the defendant's own lyrics literally or not.
-: But assuming that the defendant's lyrics are relevant,
what do we do about the fact
that there was no limiting instruction?
-: So I think the fact that on redirect
the defense took the opportunity to allow the defendant
to explain that what he writes or he performed
were not literal descriptions of his own life,
it was about what he viewed in the community around him,
is I think this court can consider that in what--
-: There's a problem, the objection has been overruled,
the motion for a mistrial has been denied
and now the defense attorney on redirect asks questions.
You were absolutely right,
that was my first question to the appellant,
ask questions going exactly
to judge Davis's theory of admissibility.
But what's the defense attorney to do at that point?
The rulings were all lost
now the defense attorney has to use
what the defense attorney has.
-: Well, I think where the defense was relying
on the literal interpretation of the rap lyrics used
by the victim, eliminating instruction to tell the jurors
that rap lyrics may not be taken as literal,
I mean what would be the--
Judge: Different instruction.
-: I guess what would be the limiting instruction?
-: So the defendant's state of mind
and the victim's state of mind
are two different theories of admissibility.
And the judge has the ability
to give a different instruction as to both.
So that's not really the theory.
-: The only Facebook post of the victim holding a gun
or what appeared to be a gun with the caption,
don't let a sneak this into a murder
that the defendant says he viewed right before the fight
that wasn't admitted for the victim's state of mind
that was admitted for the purpose
of the defendant's state of mind.
Judge Davis, I believe the only other evidence
that was admitted relevant to the victim's state of mind
was the Ajiten evidence, which was the DYS punch.
And he would've allowed in some other incidents
had the defense come up with admissible evidence of them.
But the Facebook posts by the victim,
Judge Davis finally allowed those in
when the defense started to say,
we're gonna put the defendant on the stand
and testify that he saw them.
And that's when the lower court believed
they became relevant to the defendant's state of mind.
-: Yeah., but the chief's question,
what about the limiting instruction?
They could have used that evidence to think
this is a North, South animosity.
-: So you're asking? -: No limiting instruction.
-: So you're asking that if it was a problem,
there was no limiting instruction
essentially limiting the juror's consideration of rap lyrics
that they cannot take them literally, is that what you're?
-: Well, it's available for all the propensity purposes
because there was no limiting instruction.
Judge Davis allowed the evidence in, as you just said,
as it speaks to what the defendant's state of mind was,
because this is who is the first aggressive
for excessive force and self-defense.
It wasn't admissible for the truth of those words
because that's not why Judge Davis allowed it in,
but the jury could consider it for all those reasons.
-: Well, so my understanding of the case law with respect
to just general prior bad acts
is that a court doesn't have to sue (indistinct)
give limiting instruction,
that the defense should request one,
and if they don't, then on appeal
that we're in a different posture than how they ask for one.
But with respect to whether the jury
should have been instructed,
don't take these for the truth
they may not necessarily be able to be interpreted literally
that wouldn't have helped the defense because their defense,
their whole defense was based on the victim using lyrics
in a literal way,
so that would've cut against them as well.
And it was more strategic for the defense
that just had the defendant on redirect explain.
Yeah, but I use lyrics as an art form,
I don't view my own lyrics as communing.
-: No choice, and your point
about the limiting instruction,
it's not just about the appeal,
it's about the fairness of the trial.
When you're weighing probative value and undue prejudice,
you gotta contemplate the effectiveness
of the limiting instruction, so it palpate everything.
-: Right, but my understanding of the law
is that the court does not have to sue (indistinct).
-: This is my point, what we're doing right now,
go back to the chief justice buds question.
What about no limiting instruction in the prejudice,
when you're balancing probative value and undue prejudice,
you have to do it contemplating the effectiveness
of the limiting instruction telling the jury
to compartmentalize their minds and use the evidence only
for the purpose for which it's admitted,
and that didn't happen.
-: Are you arguing that the burdens on the defense attorney
to proffer limited instructions were speculating
as to what the limited instruction could be?
Lawyer: Right.
-: That was a defense attorney's job, right?
-: I am saying that in part,
and I think I'm struggling a little bit too
with what would be the limiting instruction.
So in this case,
if you were saying the judge
should have just told the jury only consider these lyrics
for the purpose of the defendant's state of mind
to evidence of his state of mind,
then I think there was other evidence
that there were two essentially groups of friends.
There was, sorry, you're shaking your head.
-: I'm just saying as to that piece of evidence,
he admitted it as it related
to the defendant's state of mind,
just that piece of evidence there.
And that's where the limiting instruction would've been
so that they couldn't use it for propensity
or the truth of the lyrics.
-: Right, so with respect
to like talking about the Glock things of that nature.
Judge: And North and South.
-: Well, North and South I don't think
it's not just about the defense state of mind.
It kind gives the jury a full picture of what was going on.
There were these fights that were going on all over the park
and there were over 60 kids,
I think about a hundred kids and other bad acts can come in
not just for a state of mind or intent or motive,
but also to provide the jury with a full picture
of kind of the atmosphere of what was happening
at that time.
Judge: I have not heard of that one, that exception
to letting in prior bad acts for atmosphere.
-: For a fuller picture of what was happening.
So like in DV case is that--
-: But that's not why he decided to admit it.
-: Well we didn't really get into it.
Well no, he did.
So early on in the trial when defense
was trying to exclude any gang evidence
and the Commonwealth was saying
that was the reason these fights occurred,
the judge ended up limiting that evidence to,
essentially it was a fight between friends
and that there was a loyalty amongst friends
that didn't need to reference gangs,
so he was allowing it in for the kind of reason
this chaotic atmosphere came to be.
The discussions and the arguments
weren't focused on defendant state of mind.
-: Counsel when you say he was allowing it in
Are you talking about the rap lyrics
or are you talking about--
Lawyer: (indistinct) evidence way at the beginning
of the trial?
-: Right, so that's not really the issue
that we're talking about here, I mean the problem--
-: Well, it is, it's the same thing, it's North, South,
it was South side against North side
that's what the commonwealth was alleging,
and the judge didn't wanna-- -: If I could just finish
my question that would be great.
So it wasn't that evidence already had come in.
Right now we're talking about on this appeal,
we're talking about the lyrics
regarding the North versus the other South side.
And I'm wondering why the limiting instruction
would not have been helpful,
important. Lawyer: Important.
-: Because the reason the judge seemingly led it in was to go
to the state of mind of this particular defendant.
He's someone like this defendant (indistinct), yes.
-: So what they said was also in evidence in other ways.
So for example,
the South side being at war with the North side,
that was already in evidence as the fight between friends
that had been discussed earlier in the case
about when the defense moved to prevent the Commonwealth
from using the word gangs.
So that was evidence,
Judge: Already. -: Separate from the lyrics.
But it's the same information.
-: So you're saying it wasn't prejudicial
because it was just more of the same?
I don't understand your argument, I guess.
-: Well, my argument is that that evidence about North side
being at war with South side wasn't just admitted
to go to the defendant's state of mind.
It was also providing the jury
with how all these fights amongst about a hundred kids
came to be.
And that was all discussed well before
I think the Commonwealth even knew that lyrics
were gonna be introducing.
-: So are you saying it was cumulative?
-: I'm just saying the limiting instruction pertaining
to the rivalry between the friends or the gang
or the North side versus the South side,
-: No, no, no the limiting in instruction,
as I understood it would've gone
to the use of these rap lyrics to prove a particular thing.
And so the limiting instruction I would've thought
would've been you can only use these rap lyrics
for the defendant's state of mind.
What is the commonwealth problem with that?
-: Well, I think it also went to providing the jury
with an accurate picture
of what was going on at the park,
at the time the defendant stabbed the victim.
-: "I love my Glock, now you're dead, " how does that--
-: So sorry, I'm just focusing on the rivalry,
but if we could move on to the firearm stuff.
-: Can you really separate that?
I mean can you separate them so finely
that this one replies to rivalry
and this one applies to the gun?
-: Yes, because if you're just looking at lyrics,
rap lyrics separate and apart from the acts or other wrongs
that they discuss,
that's a different issue of admissibility
and reason for admission.
The acts that they discuss, which are different acts
may come in under 404 B for different reasons.
-: Don't we?
Back to the question I asked your sister.
We need a limiting.
We we've gotta not allow rap lyrics in generally,
there has to be that factual nexus to what's going on.
Meaning this shouldn't be in the case
unless he's somehow describing what's happening here
or what he's planning on doing, right?
-: Well I think the defense has a very narrow inaccurate view
of relevance and evidence depends on
not just direct evidence but circumstantial evidence
based on inferences the commonwealth can use.
-: Bear with me for a second
'cause we asked them what do they think the rule should be
on the disability of rock lyrics
and they talk about a factual nexus and temporal proximity.
Lawyer: It can't just depend on...
-: This discussion of Glocks,
it's clearly and has nothing to do with the facts
of this case, this is a knife fight.
-: It does though because the defendant injected evidence
about the victim having firearms
and that's the whole basis.
-: His description of him having a Glock.
-: It shows his knowledge and his experience with firearms
and the reasonableness of his fear when a victim is posting
that stuff to social media.
And so you can't just categorically exclude information
from trials, especially not lyrics which are statements
of a defendant.
You can't just make them admissible only
when they strongly relate
to the specific details of the crime.
Judge: Why not?
-: Or when they strongly,
because for example, that's to me I interpret that--
-: All of the studies and the various conclusions
about how people view rap lyrics,
the tendency that they associate with rap lyrics
in particular as opposed to country music with violence
and gang association.
All the reasons that you're actually standing there
saying we could use them are all the reasons
why perhaps we shouldn't
and certainly shouldn't without limiting instruction.
-: Well so because rappers talk about their lives too,
it's not just about the details of one crime.
Judge: So do country.
-: I think it might be in the amicus brief.
-: Country western song that's about drinking,
that we're gonna allow in OUI case?
Lawyer: If it becomes relevant.
-: Really, I mean?
-: Yes, so there's a statement about Bob Marley in Gray
and how he sung,
Judge: I shot the sheriff. -: I shot the sheriff,
but I didn't shoot the deputy I think is the lyrics.
Judge: That's right.
-: So obviously we don't take that literally
there's no any indication that those are literal,
Judge: It's a famous song.
-: Right, it was made famous I think by Eric Clapton,
-: An OUI case.
They pulled the defendant over and I love this bar
is playing on the radio, right?
Is that admissible?
-: It depends, so if it's his own song
and he admits I went to that bar earlier,
if there's other information that is indicative
of how those lyrics apply to the case,
like that makes them relevant,
then yes, maybe they should come in, I'm not saying.
-: Isn't that exactly what you're opposing counsel was saying
that you limit the admissibility to some situations
where there's a close nexus?
-: But it can't just depend on defense's version of the crime
that occurred or the details in the defense's story
about what happened at that particular crime.
I mean there are so many cases, especially murders,
domestic violence cases that depend
on the history well before the actual crime occurred.
-: Let's do the relationship
between the victim and the defendant.
How did the rap lyrics illuminate the relationship
between the victim and the defendant?
-: Well, the victim's friends with people on the North side,
the defendant grew up on the South side
and friends with people on the South side.
And there's evidence at trial that there were,
so for example, I think it was Terrence Taylor
talks about Jose Arias himself
and Johan Martin's being friends and I believe Jose Arias
is from the North side and when the fight started
between Jose Arias and (indistinct) Brandon,
friends of Brandon's jumped in
and that's when the defendant says,
"I jumped in to protect Brandon."
They're both, I believe that the defendant himself testified
that they're both from the South side,
but at a minimum...
-: Tell me how that exacerbates the prejudice.
He didn't have a chance
or you didn't answer (indistinct) question
about all this other evidence of North, South,
or the defendant's view there might have been a gun
in the backpack.
The rap music wasn't admitted for that purpose.
You point out there's all this other evidence of it.
But if you have this rap music that corroborates
that wasn't admitted for that purpose
and may well not have been when you weighing probative value
and under prejudice
'cause of all the concerns about rap music
then this other evidence actually exacerbates the problem
with lack of eliminating instruction.
-: Well the judge admitted the rap lyrics
for the defendant's state of mind
with respect to self-defense claim.
-: To the jury, right?
That's back to the chief's initial question,
there is no limiting instruction.
-: Right, but you can't just view the admissibility
of evidence through the whole of the story
that the defense wants you to believe.
I mean, the commonwealth had a whole different theory
of the case that it's entitled to present,
and when the judge missed...
-: Because he was a rapper, he was--
-: No, but if there's a rivalry between two groups of people
and one on the other side is showing guns
and this defendant on is showing guns,
like it does go to his state of mind
and whether he really was this.
-: What does it matter your theory of the case
if the judge makes it a pointed decision
about the only reason why he's allowing
in a piece of evidence.
He didn't say it wasn't for the commonwealth theory
of the case.
Lawyer: He said he's letting it in to--
-: For the defense state of mind.
-: Right, so forget about your--
-: That's the commonwealth's rebuttal
to the defense's raising a self defense claim.
We're showing it wasn't done in self-defense
that there was a rivalry going on,
he wasn't that afraid of someone
on the other side flashing weapons
'cause he himself communicates to the world
by his public postings to YouTube
that he knows about firearms, he flashes firearms around
and that there's this rivalry going on.
It came in for the grand state of mind, the lyrics,
but the acts they discuss can come in.
Can I just say one other thing very briefly on.
Judge: I have one last question.
Judge: Okay, yeah, we've talked about this a lot
and I think we get where you--
-: Can I ask one last question about,
say we disagree with you
and we think this was error.
The standard review is what
and why don't you tell us how you meet the standard review
of it was an error.
-: Sure, it's substantial risk.
It's not prejudicial error.
And I just wanna kind of recite why,
because I know defense brought this up again and reply.
The initial objection that defense raised
at the appropriate time
was based on notice under Ajiten,
you can't ignore the legal grounds the defense moved
under in front of the lower court
at the appropriate time to raise objection,
which was notice under Ajiten.
Ajiten applies to a very specific category,
subcategory of prior bad acts
and that specific acts of violence.
And there are notice provisions associated with that case.
And so to the judge,
and you can tell by the way he responds to it,
in his response at one point
he did use the general term (indistinct)
but he's saying again,
and it looks like there's a type on the transcript that.
-: You're arguing the merits again,
I'm just trying to say we disagree with you.
I'm giving you a chance to explain why this error
is not reversible error, if it is error.
-: So you agree with the commonwealth on substantial risk?
Judge: No.
-: No, I haven't figured out
whether it's substantial risk or prejudicial error, but I--
-: I was just trying to explain why it's substantial risk.
-: Okay, go ahead, sorry.
-: So the only objection
that really would preserve any rights for appeal
was the one the council made on April 2nd,
and that was objection
as to lack of notice under Ajiten.
It wasn't about first amendment speech or Gray.
-: All right, assuming it's the substantial risk analysis.
-: Now tell us why it's not a substantial risk.
-: Because of the strength of the commonwealth case.
Even aside from that,
and also the fact that the defendant wasn't convicted
of first degree murder,
he was convicted of voluntary manslaughter,
which to get there.
One of the ways to get there
is when a person uses excessive force and self-defense.
So there is a very strong likelihood
that the jury believed the defendant's self-defense claim
and that's how they got to voluntary manslaughter.
But the rest of the commonwealth's case was very strong.
I mean, just because the police described contact
between the defendant and the victim as upper cuts
because they couldn't see super clearly what was going on.
That is circumstantial evidence
of when the stabbing occurred.
So the defendant didn't end up challenging identification
and it really just boiled down
to whether he acted in appropriate reasonable self defense.
So and if you're looking at substantial risk
and the fact that...
Yeah, so I think it's just the strength
of the Commonwealth's case
and the fact that he wasn't convicted
of first degree murder, that he was,
that the conviction is supported
by the evidence, apart from the lyrics.