Appellate Docket No.: A-0377-18T1
Decided October 15, 2020
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In an unpublished opinion, the Appellate Division of New Jersey reviewed a trial court’s denial to exclude evidence of a video of the defendant rapping with original lyrics about stealing drugs and shooting someone in the head, after a victim was found shot in her car.
In State v. Scurry, defendant was one of two masked men who entered the backseat of the victim’s car in an attempted drug related robbery. During the encounter, the victim suffered a graze gunshot wound to his head. A cell phone was found in the backseat of the victim’s car on the night of the shooting, although the phone itself could not be linked to a particular wireless account.
Police searched the phone after securing a warrant. It contained a photo of defendant holding a gun, as well as a video uploaded approximately four-and-one-half hours before the shooting. In it, defendant is seen with a gun, freestyle rapping with original lyrics about stealing drugs and shooting someone in the head.
On April 5, 2017, New Jersey State troopers effectuated a motor vehicle stop. Defendant was in the car and was alleged to have thrown three guns wrapped in a tee shirt out the car window. Ballistics analysis linked one of those guns to the February shooting.
Defendant moved to prohibit the State from introducing the video evidence from the phone – uploaded 4 and a half hours before the shooting. The Trial Court ruled that the similarities between the rap lyrics and the actual shooting were relevant to the defendant’s intent, identity and motive. The judge stated that he would take specific steps to limit any prejudice to defendant, including addressing prospective jurors about rap lyrics during jury selection, potentially redacting portions of the video and providing limiting instructions at the time it was played for the jury and during the final jury charge. The judge entered an order denying defendant’s motion.
Defendant appealed. The Appellate Division affirmed. They ruled that the four part test for admissibility of “uncharged misconduct” was met, which requires:
: 1. The evidence of the other crime must be admissible as relevant to a material issue;
- It must be similar in kind and reasonably close in time to the offense charged;
- The evidence of the other crime must be clear and convincing; and
- The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Rose, 206 N.J. 141, 159–60 (2011) (quoting State v. Cofield, 127 N.J. 328, 338 (1992)).]
State v. Skinner, 218 N.J. 496 (2014) added to the requirements that certain forms of “inflammatory self expression, such as poems, musical compositions, and other like writings about bad acts, wrongful acts, or crimes” are not admissible unless there is “a strong nexus between the specific details of the artistic composition and the circumstances of the underlying offense for which a person is charged, and the probative value of that evidence outweighs its apparent prejudicial impact.” 218 N.J. at 500.
The Appellate Division found that the Trial Judge did not abuse his discretion, as the video uploaded shortly before the drug related robbery contained probative evidence not outweighed by its prejudice to defendant, especially with the limiting instructions offered by the judge.
This case is important because these legal principles can be linked to social media posts if they are found in conjunction with a crime. Even though they may not directly pertain to the criminal act in question, it can be introduce for things such as identity, motive, and intent of the defendant. Be mindful of your posts on social media and contained on cell phones. It may mean cause the destruction of your criminal defense.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case involving motions to suppress. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Booton, Butler, Chatham, Chester, Denville, Dover, East Hanover, Florham Park, Hanover, Harding, Jefferson, Kinnelon, Lincoln Park, Long Hill, Madison, Mendham, Mine Hill, Montville, Morris, Morris Plains, Morristown, Mount Arlington, Mount Olive, Mountain Lakes, Netcong, Parsippany-Troy Hills, Pequannock, Randolph, Riverdale, Rockaway, Roxbury, Victory Gardens, Washington, and Wharton.