Opinion
A-13622 7108
06-05-2024
ANTHONY GEORGE JENKINS-ALEXIE, Appellant, v. STATE OF ALASKA, Appellee.
Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge.
Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE
Anthony George Jenkins-Alexie was convicted, following a jury trial, of first-degree murder, first-degree vehicle theft, second-degree misconduct involving weapons, and tampering with physical evidence in connection with the shooting death of Fairbanks Police Sergeant Allen Brandt.
AS 11.41.100(a)(1)(A), AS 11.46.360(a)(1), AS 11.61.195(a)(3)(A), and AS 11.56.610(a)(1), respectively.
Jenkins-Alexie raises three issues on appeal.
First, Jenkins-Alexie argues that the superior court erred when it denied his Batson challenges to the State's peremptory strikes against two Alaska Native jurors. For the reasons explained here, we conclude that Jenkins-Alexie failed to preserve the Batson arguments he raises on appeal.
See Batson v. Kentucky, 476 U.S. 79, 89 (1986).
Second, Jenkins-Alexie argues that the superior court abused its discretion when it admitted a rap Jenkins-Alexie wrote about the murder. For the reasons explained here, we conclude the superior court did not abuse its discretion in admitting this evidence.
Lastly, Jenkins-Alexie argues that the court erred when it denied his motion to suppress without holding an evidentiary hearing. We conclude that Jenkins-Alexie failed to preserve this issue for appeal.
Background facts and proceedings
Late on October 15, 2016, Jenkins-Alexie met up with two of his friends and began drinking alcohol. The two friends testified that the group likely also smoked marijuana and possibly methamphetamine. One of the friends testified that Jenkins-Alexie showed him a semi-automatic handgun that night.
The trio eventually decided to head to the house of Twyanna Coger, Jenkins-Alexie's then-girlfriend. While walking to her house, the group encountered a passerby, Eric Rustid. Rustid testified that he was alone and walking to a gas station when a group of people approached him, and that a man in the group began to yell at Rustid and accused him of talking to the man's girlfriend. The man yelling at Rustid identified himself as "Antman" (Jenkins-Alexie's nickname). Rustid testified that he thought Jenkins-Alexie lifted up his shirt and brandished a gun. Rustid also testified that it appeared Jenkins-Alexie was on drugs.
Eventually, the trio arrived at Coger's house, but Coger and Jenkins-Alexie began fighting once the group arrived. Jenkins-Alexie eventually left, while the two friends and Coger stayed in the house.
Shortly after leaving, Jenkins-Alexie fired several gunshots outside Coger's home. Police Sergeant Allen Brandt responded to the area, and pulled his patrol vehicle up next to Jenkins-Alexie. Jenkins-Alexie then began shooting at Brandt and his patrol vehicle. Brandt returned fire and fled his vehicle. Brandt was ultimately shot several times: three times in the legs, once in his protective vest, and once in his boot. Metal shrapnel also became lodged in his eye.
Once Brandt was incapacitated, Jenkins-Alexie approached him, kicked him in the head, took his gun, and drove off in Brandt's patrol vehicle. Jenkins-Alexie soon abandoned the vehicle and the guns, and walked to a friend's house, where he changed clothes. Jenkins-Alexie then returned to Coger's house, where he cried and confessed to shooting a police officer.
Brandt initially survived the shooting, but he died approximately two weeks later from a pulmonary embolism leading to cardiac arrest. A medical examiner testified that Brandt's gunshot wounds were the only contributing factor that led to the pulmonary embolism.
A police investigation identified Jenkins-Alexie as the shooter, and Jenkins-Alexie was subsequently arrested. The police applied for and received a search warrant for Coger's residence, where Jenkins-Alexie spent significant time following the shooting. A police officer testified that they found multiple handwritten notes by Jenkins-Alexie in Coger's house. One of the notes was two pages long and amounted to a confession. The police also found a napkin that Jenkins-Alexie had apparently written on, which stated, "Anthony Jenkins here. I did everything on my own. No one put me up to it. No one knew. Its [sic] all me. No one suffers for my own actions. I mean it."
The notes also explained that Jenkins-Alexie had a very close friend, James Richards, who was shot by Fairbanks police approximately two months before Brandt's shooting. According to Coger, Richards's death weighed heavily on Jenkins-Alexie. Both Coger's and Jenkins-Alexie's friends testified that Richards was like a brother to Jenkins-Alexie.
After Jenkins-Alexie was arrested, officers conducted an interview with him. Jenkins-Alexie confirmed that he shot Brandt because the police had taken "too many of [his] loved ones." Jenkins-Alexie stated that he took responsibility for everything, but he asserted that his intent in shooting at Brandt was to commit "suicide by cop." Jenkins-Alexie wrote an apology letter to Brandt during this interview, which the interrogating officer read into the record during trial.
Jenkins-Alexie was subsequently charged with first-degree murder, along with other felony charges. At trial, Jenkins-Alexie did not dispute that he killed Brandt, but he argued that he lacked the specific intent to commit first-degree murder. The defense argued that there were a variety of factors that suggested Jenkins-Alexie was not acting with specific intent to kill: he was distressed about Richards's death, he exhibited signs of paranoia, he was suicidal, he was intoxicated, and he had had a fight with Coger earlier in the evening. Defense counsel also relied on the fact that witnesses saw Jenkins-Alexie crying immediately after the shooting.
Jenkins-Alexie also argued that he was not the legal cause of Brandt's death, but this theory is not relevant to his appeal.
The jury convicted Jenkins-Alexie of first-degree murder, first-degree vehicle theft, second-degree misconduct involving weapons, and tampering with physical evidence. The court imposed a composite sentence of 119 years to serve.
The jury also found Jenkins-Alexie guilty of two counts of second-degree murder, attempted first-degree murder, and first-degree assault, all of which merged with his first-degree murder conviction.
This appeal followed.
Jenkins-Alexie failed to preserve the Batson arguments he raises on appeal
In Batson v. Kentucky, the United States Supreme Court held that the equal protection clause of the federal constitution bars the exercise of a peremptory challenge against a juror on the basis of the juror's race. When a defendant lodges a Batson challenge, the trial court must follow a three-step process. First, the defendant must demonstrate that "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Second, once the defendant meets this showing, the burden of production shifts to the prosecutor to provide a "clear and reasonably specific" race- neutral explanation for exercising a peremptory challenge against that potential juror. Finally, at the third step, the trial court must independently evaluate the credibility of the prosecutor's proffered explanation to determine whether it is genuine or pretextual- i.e., the court must "decide whether the articulated [race-neutral] reason is the attorney's true reason for the peremptory challenge or whether it is a sham, an invention to mask the attorney's discriminatory intent." The party who raised the Batson objection bears the burden of persuasion at this third and final step.
Batson, 476 U.S. at 89; see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) (extending Batson to gender).
Batson, 476 U.S. at 96-98.
Id. at 94; Miller-El v. Dretke, 545 U.S. 231, 240 (2005); see also Johnson v. California, 545 U.S. 162, 169 (2005) (explaining that a prima facie case can be established using "a wide variety of evidence, so long as the sum of the proffered facts gives 'rise to an inference of discriminatory purpose'" (quoting Batson, 476 U.S. at 94) (citation omitted)); United States v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005) ("[T]he burden at the prima facie stage is low, requiring only circumstances raising a suspicion that discrimination occurred, even where those circumstances are insufficient to indicate that it is more likely than not that the challenges were used to discriminate.").
Batson, 476 U.S. at 97, 98 n.20 (quoting Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 258 (1981)).
Id. at 98; Miller-El, 545 U.S. at 251-52.
Gottschalk v. State, 36 P.3d 49, 55 (Alaska App. 2001).
Id. (citing Purkett v. Elem, 514 U.S. 765, 767 (1995)).
In the current case, Jenkins-Alexie raised Batson challenges to two peremptory strikes by the State. The first challenge was related to juror J.B., who was an Alaska Native juror from Venetie. In her jury questionnaire, J.B. informed the parties that she knew Eric Rustid. (Rustid was the witness who encountered Jenkins-Alexie on the street before the shooting incident, and who later testified that Jenkins-Alexie brandished a weapon at him and appeared to be on drugs.) When questioned about Rustid, J.B. explained that she and Rustid had been romantically involved, but she stated that her relationship with Rustid would not make her more or less likely to believe his testimony. Neither party challenged J.B. for cause.
Later, when J.B. was answering additional questions from the parties, the superior court requested that the microphone be placed in front of her because she was "soft-spoken."
When the parties exercised their peremptory strikes, one of the two prosecutors indicated that the State was exercising one of its peremptory strikes against J.B. Defense counsel objected, stating only that he would "like to issue a Batson challenge." The court interpreted this objection as lodging a Batson challenge on the ground that J.B. was Alaska Native, as was the defendant.
The State faults Jenkins-Alexie for failing to establish a prima facie case of discriminatory intent. The State is correct that Jenkins-Alexie's attorney did not create a record of how many Alaska Natives were in the venire pool, or why the peremptory strike of J.B. gave rise to an inference of discriminatory intent. We agree that a better record could have been made. But the case law is clear that the preliminary issue of whether the defendant made a prima facie showing under Batson becomes moot once the trial court proceeds to the next steps. See Hernandez v. New York, 500 U.S. 352, 359 (1991).
The court then asked the prosecutor to provide a race-neutral explanation for the peremptory challenge, and the prosecutor provided the following response:
There were two attorneys prosecuting the case. Prosecutor #1 refers to the first-chair prosecutor, and Prosecutor #2 refers to the second-chair prosecutor.
Prosecutor #2: Yes, Your Honor. I think that she - she's the one where nobody could hear her. I had trouble hearing her. I think the Court directed that the microphone be placed in front of her. I think that her general disposition doesn't lend itself well to being - serving as a juror in this particular case, Judge.
The court responded in a way that suggested that the court may have been confused about this stage of the Batson test. (At this second stage of the Batson inquiry, the prosecutor bore a burden of production - that is, the prosecutor was only required to put forward a race-neutral reason for the peremptory challenge.) The court stated:
See Purkett, 514 U.S. at 767-68 ("The second step of this process does not demand an explanation that is persuasive, or even plausible.").
Well, I think that from my understanding - and I'm not putting my finger on Batson, but I've done them before - is that there is at least from the United States Supreme Court a burden that is placed on the party that is opposing a Batson challenge which generally is the prosecution to have a specific, articulable reason why this person separate from race should be excused. And she is soft-spoken, but I listened
very carefully to her. Whether she would be persuaded by others, that wasn't grossly apparent. So, I will sustain the Batson challenge and not have her excused for cause.
The prosecutor responded that the State was not challenging J.B. for cause:
Prosecutor #1: We weren't asking for a for-cause challenge.
....
Court: No, no, I went through what I understood to be the analysis; I said I wouldn't do it for for-cause.
Prosecutor #1: Okay.
Court: I think we're all agreeing that she's from Venetie, and then I was asking for an articulable, specific reason and the reason I got was her general disposition. So -
Prosecutor #2: Well, there's another independent basis that we see from her pulling out her juror questionnaire. And it appears that the notes we have on here is that she also previously dated Mr. Rustid, and Mr. Rustid is likely to be called as a witness in this case.
The court then asked defense counsel for a response. Defense counsel noted that the State's reasoning about J.B.'s prior relationship with Rustid "wasn't the initial reason that was articulated" for the peremptory strike, and asserted that the State "had to go digging through [J.B.'s] questionnaire to come up with another reason." The defense attorney stated, "So, I don't buy it."
The court rejected this argument, responding:
That's all right. I do. I think that [the State] need[s] to come up with an articulable reason, and that is one that is legitimate. [J.B.] had a relationship with a witness that I can't quite talk or assign importance to but it sounds like it's part of the story of that night. And I do recall her talking about that she had some ambivalent relationship with him fairly recently. So, I think that's sufficient to overcome a Batson challenge.
The defense attorney made no further objections and did not make any additional arguments.
On appeal, however, Jenkins-Alexie argues that the superior court erred in accepting the prosecutor's second rationale - that J.B. was previously romantically involved with a witness - after rejecting the prosecutor's first rationale - that J.B. was "soft-spoken." According to Jenkins-Alexie, having found that the prosecutor was acting with discriminatory intent, the court was precluded from accepting any other rationales for the peremptory strike.
As Jenkins-Alexie acknowledges, whether a trial court can accept an alternative race-neutral reason for a peremptory strike after finding that the initial reason is discriminatory is an open question under Alaska law. As the parties discuss in their briefing, courts have generally taken two different approaches to this question - the "taint" approach and the "mixed motive" approach. Under the taint approach, once a court finds that the prosecutor's reason for striking the prospective juror was racebased, that finding of discriminatory intent "taints" any other race-neutral reasons the prosecutor may have for striking the prospective juror. Under the mixed motive approach, the prosecutor may still exercise a peremptory challenge against the juror, even after the court has found that the removal was motivated by discriminatory intent - if the prosecutor can demonstrate they would have taken the same action regardless of the prospective juror's race.
See People v. Douglas, 232 Cal.Rptr.3d 305, 314-15 (Cal.App. 2018); McCormick v. State, 803 N.E.2d 1108, 1112-13 (Ind. 2004); McCray v. State, 738 So.2d 911, 914 (Ala.Crim.App.1998); Payton v. Kearse, 495 S.E.2d 205, 210 (S.C. 1998); see also Wilkerson v. Texas, 493 U.S. 924, 928 (1989) (Marshall, J., dissenting).
See Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996); Howard v. Senkowski, 986 F.2d 24, 30 (2d Cir. 1993); Gattis v. Snyder, 278 F.3d 222, 234-35 (3d Cir. 2002).
(We note that some courts have taken a middle ground between these two approaches and have adopted a third approach based on whether race was a "substantial motivating factor.")
See Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010); see also State v. Ornelas, 330 P.3d 1085, 1095 (Idaho App. 2014).
On appeal, Jenkins-Alexie urges this Court to adopt the taint approach, and to reverse his conviction based on what he asserts was a finding of discriminatory intent by the superior court. The State expresses a preference for the mixed motive approach but argues that we need not decide which approach to adopt in this case "because Jenkins-Alexie did not raise it in the trial court and the trial judge never found intentional discrimination."
We agree with the State that Jenkins-Alexie did not preserve the arguments that he now asserts on appeal. On appeal, Jenkins-Alexie speculates that the superior court "could" have rejected the prosecutor's "soft-spoken" rationale as not sufficiently "race-neutral" under Batson because the rationale could be argued to be a product of "racial and gender stereotypes." But Jenkins-Alexie never argued this theory to the superior court - that is, he never argued in the trial court proceedings that the "soft-spoken" rationale was "rooted in racial and gender stereotypes." Rather, Jenkins-Alexie's attorney simply lodged a Batson challenge to J.B. without flagging any particular reasoning.
Likewise, Jenkins-Alexie's attorney never argued to the superior court that its ruling "sustain[ing] the Batson challenge" had any ongoing legal significance. That is, the attorney never argued to the superior court that the prosecutor's second rationale was "tainted" by the prosecutor's first rationale and therefore invalid. Rather, Jenkins-Alexie's attorney argued only that he did not "buy" the State's proffered second rationale - i.e., that the State's alternative explanation was not credible.
Accordingly, Jenkins-Alexie now seeks to litigate, for the first time on appeal, an important, unanswered legal question - whether Alaska should follow the taint or the mixed motive approach to Batson challenges. But because Jenkins-Alexie never argued for either approach in the superior court proceedings, there is subsequently no ruling for us to review.
There is also another problem with Jenkins-Alexie's argument on appeal. In arguing for the taint approach, Jenkins-Alexie assumes that the court's initial sustaining of the Batson challenge was a finding of discriminatory intent. But it is far from clear that it actually was a finding of discriminatory intent. To begin with, there is the court's strange reference to not excusing J.B. for cause, which strongly suggests that the court was confused about the Batson test, and that the court mistakenly believed that, in order to "overcome" a Batson challenge, the prosecutor had to have an objectively reasonable explanation for the peremptory challenge akin to a "for cause" challenge.
See Gottschalk v. State, 36 P.3d 49, 55 (Alaska App. 2001) (explaining the appropriate inquiry is to evaluate "whether the articulated reason is the attorney's true reason for the peremptory challenge or whether it is a sham, an invention to mask the attorney's discriminatory intent"); see also Saleem v. State, 2013 WL 3895703, at *3 (Alaska App. 2013) (unpublished) ("The fact that the prosecutor's reason for challenging the juror might lack objective merit, or might be based on a misunderstanding of the juror's responses, is not significant except insofar as those facts may reflect on the overall credibility of the proffered reason.").
The record also strongly suggests that the court erroneously believed that a person's "general disposition" could never qualify as a "specific articulable reason" for a peremptory strike. After the prosecutor explained that he had exercised a peremptory challenge against J.B. because of her general disposition and soft-spoken nature, the court stated that the question before it was whether "general disposition" was a "sufficient reason" for "overcoming" a Batson challenge. And later, when the prosecutor proffered a second reason (i.e., that J.B. previously dated Rustid), the court specifically stated that the second reason was "different than articulating that she had a disposition that the State didn't like," and found that, in contrast to the first reason, the State's second reason was "legitimate."
See Snyder v. Louisiana, 552 U.S. 472, 477 (2008) ("[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's firsthand observations of even greater importance."); Hernandez v. New York, 500 U.S. 352, 360-61 (1991) ("[T]he prosecutor . . . explained that the specific responses and demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of the Spanish-language testimony. The prosecutor here offered a race-neutral basis for these peremptory strikes." (citation omitted)); United States v. McMath, 559 F.3d 657, 665 (7th Cir. 2009) ("It is well-established that a juror's demeanor is a valid race-neutral basis for a peremptory strike, which is all that is required for step two of the Batson inquiry." (collecting cases)). This is not to say that reliance on demeanor can never be evidence of discrimination. See, e.g., Commonwealth v. Edwards, 177 A.3d 963, 975 (Penn. 2018) (reversing in part because the State's demeanor-based explanation for a peremptory strike was "wholly unpersuasive"). But the court made no such finding here; instead, the court found that it was not "grossly apparent," as a factual matter, that J.B. "would be persuaded by others."
Because of the importance of the interests at stake, a Batson error is generally treated as structural error. That is, if an appellate court concludes that the trial court erroneously denied a Batson challenge, then the remedy is reversal of the defendant's convictions. But appellate courts are reliant on the record that is produced in the trial court, and an incomplete or confusing record can preclude meaningful appellate review. Batson challenges are also heavily dependent on the credibility findings of the trial court judge who is present in the courtroom and able to observe demeanor and other non-verbal cues. It is therefore particularly important for litigants to make their arguments about discriminatory stereotypes and discriminatory intent to the trial court in the first instance so that there is a sufficient record for any future appellate review.
See Crittenden v. Chappell, 804 F.3d 998, 1003 (9th Cir. 2015); Winston v. Boatwright, 649 F.3d 618, 627-29 (7th Cir. 2011); United States v. Kimbrel, 532 F.3d 461, 469 (6th Cir. 2008); Tankleff v. Senkowski, 135 F.3d 235, 240 (2d Cir. 1998); see also 6 Wayne R. LaFave, Criminal Procedure § 22.3(d), at 171 (4th ed. 2015).
See Crittenden, 804 F.3d at 1003; Winston, 649 F.3d at 629; Kimbrel, 532 F.3d at 469.
See United States v. McAllister, 693 F.3d 572, 582-83 (6th Cir. 2012) (remanding a case because "the record [was] unclear as to whether the district court engaged in the third step of Batson").
Here, Jenkins-Alexie never asked the superior court to rule that the State's alternative rationale was legally impermissible (as opposed to factually not credible), and his arguments rest on an alleged finding of discriminatory intent that is not clearly reflected in the record. For these reasons, we reject Jenkins-Alexie's first claim of Batson error.
See Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011).
Jenkins-Alexie's second Batson argument suffers from the same deficiencies. In a single paragraph of his opening brief, Jenkins-Alexie argues that the superior court erred when it denied his Batson challenge to the prosecution's peremptory strike of a second Alaska Native juror, B.S. The prosecutor provided a number of reasons for excusing B.S., but stated that his "strongest argument" against B.S. was that B.S. was worried about missing work and losing his job. (During voir dire, B.S. stated that it would be "extremely difficult" to listen to evidence while also worrying about the state of his employment.)
The superior court agreed that B.S. was worried about losing his job and the court accepted this proffered reason as a "legitimate" race-neutral reason to excuse B.S. The court did not rule on the prosecutor's other proffered reasons for excusing B.S., and voir dire continued without any objection from the defense.
On appeal, however, Jenkins-Alexie argues for the first time that the court was required to rule on the alternative rationales, and he asserts that at least one of the alternative rationales (being a fan of rap music) may have been a "potential proxy for race" that "tainted" the other rationales. But, as is true of the earlier Batson challenge, Jenkins-Alexie never made these arguments to the superior court and he has therefore not preserved this issue for appellate review. We accordingly reject his second claim of Batson error.
See id. at 433.
The superior court did not abuse its discretion when it admitted a recording of a rap Jenkins-Alexie wrote while incarcerated
Approximately one year after the shooting, Jenkins-Alexie called someone from jail (the recipient of the call was never disclosed) and performed a rap about the shooting. In the rap, Jenkins-Alexie admitted to killing Brandt, said he did not "give a damn" about spending life in prison, referred to himself as the "Joker turning Fairbanks into Gotham," and asked Brandt's widow, "Do you want to be my boo?":
Just flexing on my city, shitting on these cops. The whole hood be feeling me, precinct up and shot. Antman be facing murder for clapping Sergeant Brandt. Doing life up in this bitch but I don't give a damn. Rest in peace to James Richards, wish I could get you back. Thug love you my [n-word], you know, I got him back. I went a little nuts for real [indiscernible] my chest, just twisting up my fingers [n-word] and be still my death.
I'm a bankstown animal, DA said no deal, so I'm rapping through these bars just chasing down a mil.... Antman be going in, Antman be going hard. Man, fuck the judge's gavel and the city's broken heart. Just LOL-ing like I'm Joker turning Fairbanks into Gotham. Check me grinning like a monster flipping off some camera. I'm blowing kisses to some bitches, mugging Brandt's baby mama like fuck your punk-ass boyfriend husband bitch. Do you want to be my boo? Check my chunky middle fingers bitch. Then you get Eric [indiscernible].
On appeal, Jenkins-Alexie argues that the trial court erred when it allowed the State to admit this recording over his objection, asserting that the rap was more prejudicial than probative and thus inadmissible under Alaska Evidence Rule 403. Jenkins-Alexie relies on a line of cases, most notably the New Jersey Supreme Court's decision in State v Skinner, which held that a trial court abused its discretion when it admitted graphically violent rap lyrics in a criminal trial.
State v. Skinner, 95 A.3d 236, 238 (N.J. 2014).
As the court in Skinner explained, "The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views." This concern may be especially elevated for rap lyrics, which are often subject to a series of assumptions, including that those lyrics "should be literally understood" and "depict accurate, truthful, and self-referential narratives." In other words, the admission of rap lyrics may be especially prejudicial when courts, and therefore jurors, treat rap lyrics as "everyday, conversational-type speech" and not art.
Id. at 251.
Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 12, 15-16 (2007).
Id. at 13.
But while the court in Skinner found the rap lyrics more prejudicial than probative, it did so because the lyrics in question were composed long before the offense took place and did not relate directly to the defendant's crime. Skinner never questioned whether rap lyrics could be admitted when the lyrics were closely connected to the crime being prosecuted, as is the case here. To the contrary, Skinner cited favorably to two cases - Greene v. Commonwealth and Bryant v. State - that upheld a trial court's admission of rap lyrics into evidence when there was "an unmistakable factual connection to the charged crimes." The court in Skinner summarized its decision as holding "that rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence's probative value is not outweighed by its apparent prejudice."
Skinner, 95 A.3d at 240.
Id. at 252 (discussing Greene v. Commonwealth, 197 S.W.3d 76, 86-87 (Ky. 2006) and Bryant v. State, 802 N.E.2d 486, 498 (Ind. App. 2004)).
Id. at 253 (emphasis added).
Jenkins-Alexie acknowledges on appeal that his rap related directly to the crime, but he nonetheless argues that it had limited probative value and a high potential for unfair prejudice. He asserts that the lyrics provide little insight into his intent or motivations, and instead "primarily focus on [his] attempt to defiantly embrace his current situation and to denigrate those he saw as aligned against him." Jenkins-Alexie argues that "[s]uch a theme of defiance and bravado has no tendency to prove or disprove that Jenkins-Alexie intended to kill Brandt."
This argument is not persuasive. By its own terms, the rap appeared to explain Jenkins-Alexie's motive for the shooting and his feelings about it after the fact - evidence that was particularly pertinent given Jenkins-Alexie's argument at trial that his demonstration of remorse immediately after the shooting showed he lacked the intent to kill. And although we agree with Jenkins-Alexie that the rap expressed a theme of "defiance and bravado," this theme only further supports, rather than undermines, the conclusion that the rap demonstrated Jenkins-Alexie's lack of remorse. Although the rap lyrics were highly prejudicial, they were also highly probative; indeed, the superior court could reasonably conclude that the rap lyrics were among the most probative evidence available to rebut Jenkins-Alexie's claim that he demonstrated remorse after the shooting and thus lacked the intent to kill. We therefore conclude that the trial court did not abuse its discretion when it admitted the rap into evidence.
See Leffel v. State, 404 P.3d 196, 201 (Alaska App. 2017). Jenkins-Alexie also faults the superior court for failing to redact certain portions of the rap. Although it is not clear from his brief what specific portions of the rap he believes should have been redacted, we assume he is referring to the lyrics about Brandt's wife, which were challenged by defense counsel in the trial court. Although we agree that these lines were highly prejudicial, they also provided some of the strongest evidence that Jenkins-Alexie lacked remorse for killing Sergeant Brandt. We therefore conclude that the superior court did not abuse its discretion when it refused to redact that portion of the recording. See id.
In addition to challenging the admission of the rap, Jenkins-Alexie also argues that the prosecutor misused the rap during closing arguments. But Jenkins-Alexie's claims of error on this point do little more than restate his arguments for why the rap should not have been admitted in the first place. We have reviewed the prosecutor's closing arguments and we find no indication that the prosecutor mischaracterized the rap or used it for an improper purpose. Rather, the prosecutor relied on the rap to show that Jenkins-Alexie lacked remorse and thus acted with intent to kill, which was the very purpose for which the rap was admitted.
For all these reasons, we reject Jenkins-Alexie's challenge to the admission of the rap at his trial.
Jenkins-Alexie did not preserve his argument that the superior court erred when it denied his motion to suppress without holding an evidentiary hearing
Next, Jenkins-Alexie argues that the superior court erred when it denied his motion to suppress without holding an evidentiary hearing. We conclude that Jenkins-Alexie failed to preserve his request for an evidentiary hearing.
Prior to trial, Jenkins-Alexie filed a motion seeking to suppress evidence obtained pursuant to multiple search warrants issued during the police investigation that occurred after the shooting. But although Jenkins-Alexie requested that certain evidence be suppressed, he did not specifically request an evidentiary hearing or explain why one was required. Instead, Jenkins-Alexie attached a draft order to his motion that, had it been signed and dated by the superior court, would have granted an evidentiary hearing. The State filed an opposition and Jenkins-Alexie did not file a reply. The superior court then issued a written order denying Jenkins-Alexie's request to suppress the evidence. Jenkins-Alexie did not file a motion for reconsideration or make any other attempt to ask the court to hold an evidentiary hearing.
On appeal, Jenkins-Alexie argues that the court erred when it denied his motion to suppress without first holding an evidentiary hearing. He contends that there were disputed issues of material fact that needed to be resolved before ruling on the motion, and he points to our case law holding that "[a] court normally must grant an evidentiary hearing on a motion when the pleadings establish a genuine dispute concerning a material fact."
Liddicoat v. State, 268 P.3d 355, 358 (Alaska App. 2011); see also Alaska R. Crim. P. 42(e)(3) ("If material issues of fact are not presented in the pleadings, the court need not hold an evidentiary hearing.").
Under the rule of preservation, however, "before a litigant can invoke the authority of an appellate court to reverse or vacate a trial court's decision, the litigant must demonstrate that they gave the trial judge reasonable notice of their request or objection, and gave the judge a reasonable opportunity to respond to that request or objection."
Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011).
Here, Jenkins-Alexie never directly requested an evidentiary hearing, did not file a reply to the State's opposition identifying any disputed factual issues, and did not otherwise bring the issue to the superior court's attention after the court denied his motion. Under these circumstances, Jenkins-Alexie did not give the court reasonable notice of his request for an evidentiary hearing or a reasonable opportunity to respond, and thus he has not preserved this issue for appeal. We therefore reject Jenkins-Alexie's challenge to the superior court's failure to grant him an evidentiary hearing on his motion to suppress.
Conclusion
The judgment of the superior court is AFFIRMED.