Holmes v. State

306 P.3d 415

129 Nev. Adv. Op. 59

Deyundrea Orlando HOLMES, Appellant,

v.The STATE of Nevada, Respondent.

No. 58947.

Supreme Court of Nevada.

Aug. 22, 2013.

Reconsideration En Banc Denied Nov. 22, 2013.

Law Office of Richard F. Cornell and Benjamin D. Cornell, Reno, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Before PICKERING, C.J., HARDESTY and SAITTA, JJ.

OPINION

By the Court, PICKERING, C.J.:

Appellant Deyundrea “Khali” Holmes appeals his conviction of first-degree murder and robbery. He argues that the fairness of his trial was compromised by the district court's erroneous admission into evidence of: (1) inflammatory rap lyrics Holmes wrote while in jail in California; (2) a coconspirator's out-of-court statement that Holmes “went off” and “just started shooting”; and (3) unwarned statements that Holmes made to the Nevada detectives who interviewed him in California before his arrest. We reject these and Holmes's other assignments of error and affirm.

I.

Kevin “Mo” Nelson was a drug dealer who operated out of a recording studio in Reno, Nevada. Holmes plotted with Max Reed and others, including Jaffar “G” Richardson, to steal drugs and money from Nelson. The night of the robbery, Holmes and Reed went to the studio. No one was there, so Reed called Richardson, who regularly did business with Nelson, and asked Richardson to call Nelson and lure him to the studio on the pretense of a methamphetamine sale. Soon after Richardson made the call, Nelson arrived with a friend, Kenny Clark.

Two men wearing ski masks and black clothes (later identified as Holmes and Reed) accosted Nelson and Clark in the studio's parking lot. Nelson tried to fight them off. At one point the fight moved into Clark's SUV, where Nelson managed to stash his money and drugs under the passenger seat. In the fight, Nelson's pockets were “bunny-eared” (turned inside out). His assailant tore off Nelson's shirt and chain necklace, pistol-whipped him, and then tried to drag Nelson from the parking lot into the studio without success. Frustrated, Nelson's assailant removed his ski mask and said, “I'm going to shoot this f @# $ing guy,” which he did. Nelson staggered, then fell and died. Clark managed to call 911 and flee.

The police investigated and took witness statements from Clark and other eyewitnesses, but could not initially identify the two assailants. They did find a fresh, unweathered cigarette butt near the scene, from which the crime lab extracted a DNA sample. But the sample did not produce a database match, so the case went cold.

Three years later, a routine database search matched the DNA from the cigarette to a sample Holmes gave California parole authorities. Nevada detectives traveled to California to interview Holmes at his parole officer's office. Holmes denied having been to Reno except once for “Hot August Nights”—Nelson was killed on a snowy November night. The detectives arrested Holmes and charged him with murder and robbery. While in jail awaiting extradition, Holmes wrote 18 rap songs, a stanza from one of which was admitted, over objection, at his trial.

The State presented its case through detectives, eyewitnesses, including Clark,¹ and various associates of Holmes and Reed. The evidence established that Holmes came to Reno from Oakland two months before, and vanished right after the crime. A young woman testified that she drove Holmes and Reed from her brother's house to Nelson's studio that night. After dropping them off, she waited for them, as requested, on a side street nearby. When Holmes and Reed returned, they were agitated and urged her to “go, go.” On the ride back to the brother's house, Holmes kept muttering, “he wouldn't quit moving”; she also overheard Reed place a cell phone call and say, “come get me, something [bad] just went down.” The young woman's brother, who was on house arrest, testified that when his sister returned with Holmes and Reed, Holmes had a chain necklace wrapped around his hand and a cell phone, neither of which he'd had before. The brother also testified that he overheard Holmes call Richardson and say, “Man it's all bad, I need to get up out of here.” Not long after, Richardson arrived, then left with Reed.

Richardson also testified. He did so pursuant to a plea agreement, under which he was convicted of, and served time for, conspiring with Holmes and Reed to rob Nelson, and other, unrelated crimes. Richardson was a generation older than Reed and Holmes. He testified that he, Reed, and Holmes had discussed robbing Nelson and that, at Reed's request, he called Nelson to lure him (and his cash and drugs) to the studio the night of the crime. According to Richardson, he went to the getaway driver's brother's house after the murder/robbery because Reed called, said that, “It went wrong,” and asked to talk “face to face.” Richardson then drove Reed past Nelson's studio to view the scene; police and ambulance personnel were still there when they drove by. In the car, Reed told Richardson that “Khali [Holmes] went off and he don't know what happened. Khali just started shooting him.” Richardson also testified that the morning after the shooting, he drove Holmes to the Greyhound bus station and gave him money to leave town. Richardson testified that Holmes told him not to trust Reed.

The jury found Holmes guilty of robbery and first-degree murder, both with the use of a deadly weapon. Holmes timely appealed.

II.

We review Holmes's claims of evidentiary error under an abuse of discretion standard. Lamb v. State, 127 Nev. ––––, –––– n. 7, 251 P.3d 700, 710 n. 7 (2011). “[I]n determining the relevance and admissibility of evidence,” a district court's discretion is “considerable.” Crowley v. State, 120 Nev. 30, 34, 83 P.3d 282, 286 (2004) (internal quotations omitted). A decision “to admit or exclude evidence will not be reversed on appeal unless it is manifestly wrong.” Archanian v. State, 122 Nev. 1019, 1029, 145 P.3d 1008, 1016 (2006).

A.

Holmes's first claim of evidentiary error focuses on the district court's admission of lyrics from “Drug Deala,” a rap song Holmes wrote in jail awaiting extradition to Nevada. The lyrics read:

But now I'm uh big dog, my static is real large. Uh neighborhood super star. Man I push uh hard line. My attitude shitty nigga you don't want to test this. I catching slipping at the club and jack you for your necklace. Fuck parking lot pimping. Man I'm parking lot jacking, running through your pockets with uh ski mask on straight laughing.

The district court determined that the jury could reasonably view the lyrics as factual, not fictional, and that, if it did, the jury could find that the lyrics amounted to a statement by Holmes, seeNRS 51.035(3)(a) (party statements are non-hearsay when offered against the party who made them), that tended to prove his involvement in the charged robbery. So viewed, the lyrics would be both relevant, seeNRS 48.015 (“ ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence”), and presumptively admissible, NRS 48.025(1) (with certain exceptions, “[a]ll relevant evidence is admissible”).

The district court acknowledged that admitting gangsta rap carries the risk of it being misunderstood or misused as criminal propensity or “bad act” evidence. See Andrea Dennis, Poetic (In) Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 18, 22, 25–26 (2007) ( “gangsta” is a subgenre of rap that “purports to reflect life in the inner city,” draws on devices such as metaphor, braggadocio, and exaggeration for effect, and uses words that may be offensive and prone to misinterpretation by jurors and courts unfamiliar with rap). But it determined that the “probative value” of the “Drug Deala” lyrics was not “substantially outweighed by the danger of unfair prejudice.” NRS 48.035(1). Partly answering Holmes's concerns, the district court instructed the jury that, “Statements of the defendant [that] have been admitted in evidence ... may be confessions, admissions, or neither.” It also gave the jury a limiting instruction:

You have heard testimony about certain “rap” song lyrics allegedly written by the defendant while in custody awaiting extradition to Nevada. The evidence of these rap lyrics is not to be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit a crime. ²The limiting instruction reiterated that, “You may ... consider if the above lyrics are confessions, admissions, o[r] neither.”

We recognize, as did the district court, that defendant-authored rap lyrics “may employ metaphor, exaggeration, and other artistic devices,” Dennis, supra, at 14, and can involve “abstract representations of events or ubiquitous storylines.” Id. at 26. But these features do not exempt such writings from jury consideration where, as here, the lyrics describe details that mirror the crime charged. See United States v. Stuckey, 253 Fed.Appx. 468, 482 (6th Cir.2007) (“Stuckey's lyrics concerned killing government witnesses and specifically referred to shooting snitches, wrapping them in blankets, and dumping their bodies in the street-precisely what the Government accused Stuckey of doing [to the victim] in this case”; thus, the district court did not abuse its discretion in deeming the lyrics relevant and admissible); Daniels v. Lewis, No. C 10–04032 JSW, 2013 WL 183968, at *10, *12 (N.D.Cal. Jan. 17, 2013) (“The details set forth in the lyrics were sufficiently close to the evidence of the crimes that [they] could be viewed as autobiographical”; they “were fairly admitted as admissions because they constitute direct evidence of [defendant's] involvement in...