                                                 129 Nev., Advance Opinion     51
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                DEYUNDREA ORLANDO HOLMES,                            No. 58947
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                         FILED
                Respondent.                                              AUG 2.2 2013
                                                                     t
                                                                     Afp
                            Appeal from a judgment of conviction, bursuant to a jury
                verdict, of first-degree murder and robbery, both with the use of a deadly
                weapon. Second Judicial District Court, Washoe County; Janet J. Berry,
                Judge.
                            Affirmed.


                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


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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.




                                      2
            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


      1 Clark identified Holmes in court as the shooter, stating that he got
a clear look at him after he removed his ski mask and shot Nelson.
Holmes initially challenged this eyewitness identification as suspect but
abandoned the challenge in his reply brief based on Perry v. New
Hampshire, 565 U.S. , 132 S. Ct. 716 (2012).



                                      3
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.




                                      4
             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, see NRS 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, see NRS 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



                                       5
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. 2


      2 The district court also deemed the lyrics admissible under the
permissible, nonpropensity-purposes list in NRS 48.045(2), which provides
that "[e]vidence of other crimes, wrongs or acts is not admissible to prove"
bad character or criminal propensity but may be admitted "for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." This was error.
                                                    continued on next page...

                                       6
The 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 F. App'x 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 the crimes charged." (first alteration in
original) (internal quotations omitted));        see   Dennis,    supra, at 8

...continued
The State offered the lyrics to show that Holmes committed the charged
crimes, not as evidence of other crimes, wrongs, or acts. See Greene v.
Commonwealth, 197 S.W.3d 76, 87 (Ky. 2006). Also, if one or more of NRS
48.045(2)'s permissible, nonpropensity purposes applied, the district court
should have identified the purpose(s) in its ruling and the limiting
instruction, rather than reflexively reciting the full list of permissible
purposes contained in NRS 48.045(2). Newman v. State, 129 Nev. „
298 P.3d 1171, 1178 (2013).



                                        7
("[o]verwhelmingly, courts admit defendant-composed rap music lyrical
evidence" if direct relevance is shown). It is one thing to exclude
defendant-authored fictional accounts, be they rap lyrics or some other
form of artistic expression, when offered to show a propensity for violence,
as in State v. Hanson, 731 P.2d 1140 (Wash. Ct. App. 1987), on which
Holmes relies. It is quite another when the defendant-authored writing
incorporates details of the crime charged. As Stuckey notes, "If, in
Hanson, the defendant's writings had stated that he robbed a 7-11 and
shot the clerk in the abdomen (as the defendant had been accused of
doing), surely the case would have come out differently." 253 F. App'x at
483.
            Nor can we accept Holmes's view that a trial court's decision
to admit or exclude defendant-authored rap lyrics is so fraught with risk of
misinterpretation and prejudice that a special rule imposing heightened
admissibility requirements is needed. "Rap is no longer an underground
phenomenon" but has become "a mainstream music genre."          Stuckey, 253
F. App'x at 484. In this arena, as others, courts should be
            . . . unafraid to apply firmly-rooted canons of
            evidence law, which have well-protected the
            balance between probative value and prejudice in
            other modes of communication. Undoubtedly, rap
            lyrics often convey a less than truthful accounting
            of the violent or criminal character of the
            performing artist or composer. . . . [But t]here are
            certain circumstances . . . where the lyrics possess
            an inherent and overriding probative purpose.
            One circumstance would be where the lyrics
            constitute an admission of guilt, but others would
            include rebutting an offered defense and
            impeaching testimony. Although there is no
            definitive line that demarcates the amount or




                                      8
                            content of lyrics that may be used appropriately,
                            reasonableness should govern.
                Hannah v. State, 23 A.3d 192, 204-05 (Md. 2011) (Harrell, J. concurring).
                            It was not unreasonable for the district court to admit the
                short stanza from "Drug Deala" that it did. Like the lyrics in Stuckey and
                Daniels, the stanza included details that matched the crime charged.
                "Jacking" is slang for robbery,                 The Rap Dictionary,
                http://www.rapdict.org/Jack (last visited May 23, 2013)—one of the
                charges Holmes faced. The lyrics' reference to "jack[ing] you for your
                necklace" may fairly refer to Holmes stealing Nelson's chain necklace
                during the robbery. Police never recovered the necklace, but Holmes had a
                chain necklace after the crime that he did not have before; his knowledge
                of the necklace as reflected in the lyrics suggests that he knew Nelson and
                may have participated in the crime. The lyrics also discuss ski masks, a
                parking-lot jacking of a "drug deala," and emptying a victim's pockets—
                facts about the crime that the State established, particularly through
                eyewitness Clark.
                            Holmes counters that these features of "Drug Deala" are so
                cliched that they do not distinguish the robbery his lyrics describe from
                other rapped-about, garden-variety robberies. The lyrics' lack of
                originality may reduce but does not eliminate their probative value. The
                extent of the lyrics' probative value was a matter for cross-examination,
                argument, or even, perhaps, expert testimony.    See Dennis, supra, at 35-
                36. But so long as evidence has "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," it is "relevant." NRS
                48.015. Here, the similarities between the lyrics and the facts of the


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charged robbery, as established by the evidence and the timing of the
composition after Holmes's arrest, met the threshold test of relevance.
            No doubt the lyrics carried the potential for prejudice. But
"[a]ll evidence offered by the prosecutor is prejudicial to the defendant;
there would be no point in offering it if it were not."    United States v.
Foster, 939 F.2d 445, 456 (7th Cir. 1991). The real question is whether the
lyrics' probative value was substantially outweighed by the danger of
unfair prejudice. NRS 48.035; see Schlotfeldt v. Charter Hosp. of Las
Vegas, 112 Nev. 42, 46, 910 P.2d 271, 273 (1996) (the "substantially
outweigh" requirement "implies a favoritism toward admissibility").
Evidence is "unfairly" prejudicial if it encourages the jury to convict the
defendant on an improper basis.      State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. „ 267 P.3d 777, 781 (2011).
            Holmes identifies two potential sources of unfair prejudice:
first, jurors unversed in rap may misuse the lyrics as evidence of bad
character or criminal propensity, which NRS 48.045(2) forbids; second,
jurors may misunderstand the genre and too readily accept artistic
expression (read, exaggeration) as autobiographical fact. Unlike Hannah,
where the prosecutor examined the defendant about a series of ten rap
lyrics he had written, seemingly for no purpose other than to demonstrate
that he had a propensity for violence, 23 A.3d at 192-93, 202, only a single
stanza from "Drug Deala" was admitted against Holmes—and the stanza
that was admitted relayed facts quite similar to the crime charged. Also,
the district court crafted and gave an appropriate limiting instruction.
Schlotfeldt, 112 Nev. at 46, 910 P.2d at 273; see People v. Wallace, 873
N.Y.S.2d 403, 404 (App. Div. 2009) (affirming conviction based in part on
admission of rap lyrics because the trial court gave a limiting instruction



                                     10
                to alleviate the potential for unfair prejudice). Thus, the jurors were told
                that they could consider Holmes's statements, including the "Drug Deala"
                lyrics, as "confessions, admissions or neither" and that they could not use
                the lyrics as evidence of bad character or criminal propensity. So, if the
                jurors followed the instructions, as we presume they did, Lisle v. State,
                113 Nev. 540, 558, 937 P.2d 473, 484 (1997), they only would have
                considered the lyrics if they found that the lyrics were autobiographical,
                like a diary or journal entry, and they would not have allowed their
                feelings about rap music—good, bad, or indifferent—to influence their
                verdict. Even though the lyrics were prejudicial, the district court did not
                abuse its discretion in determining that the risk they carried of unfair
                prejudice did not substantially outweigh their probative value. See Elvik
                v. State, 114 Nev. 883, 897, 965 P.2d 281, 290 (1998).

                                                       B.
                            Holmes's second claim of evidentiary error focuses on
                Richardson's testimony that Reed told Richardson after the crime that
                Holmes "went off" and "just started shooting." Holmes contends that this
                did not qualify as a non-hearsay statement by a coconspirator under NRS
                51.035(3)(e), because Reed did not make the statement to Richardson
                "during the course and in furtherance of the conspiracy," as the statute
                requires. We reject this claim for two reasons. First, the record does not
                establish that the error was adequately preserved. Second, the record
                does not establish an abuse of discretion by the district court in ruling as
                it did. See Fields v. State, 125 Nev. 785, 795, 220 P.3d 709, 716 (2009) (en
                banc) ("whether proffered evidence fits an exception to the hearsay rule [is
                reviewed] for abuse of discretion").


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                            Some context is helpful. The challenged testimony came
                toward the end of a series of questions by the prosecutor eliciting what
                Reed said to Richardson, on the phone and in person, the night of the
                crime. Initially, the prosecutor asked Richardson what Reed said when he
                called to see if Richardson could persuade Nelson to come to the studio, to
                which Holmes interposed a general hearsay objection. The prosecutor
                responded that "[t]hese are all statements of a coconspirator," and thus
                not hearsay; Holmes offered no response, and his objection was overruled.
                See NRS 51.035(3)(e) (a statement offered against a party is not hearsay
                when made "by a coconspirator of a party during the course and in
                furtherance of the conspiracy"). The prosecutor next asked Richardson,
                without objection, what Reed said to him when he called him after the
                crime—Richardson responded that Reed said that "[it went wrong. . . he
                couldn't really talk right then, just wanted to see me face to face."
                Richardson proceeded to say that he picked Reed up, drove him by
                Nelson's studio, and talked to him about "[w]hat happened at the studio."
                The prosecutor then asked, without objection: "What did he [Reed] tell
                you?," to which Richardson replied, "He said Khali [Holmes] went off and
                he don't know what happened. Khali just started shooting." After two
                more questions and answers, defense counsel asked to approach the bench.
                At this point, the record goes dark. It says only: "unreported discussion at
                the bench between court and counsel." The record resumes with a
                statement by the court that, "rather than the defense attorney interposing
                objections throughout the testimony we have agreed that the court will
                explain to you that some of these statements are coming in under a legal
                theory of a co-conspirator, [about which] you will receive further legal
                instruction."

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               NRS 47.040(1)(a) states that "error may not be predicated
upon a ruling which admits or excludes evidence unless a substantial right
of the party is affected, and filn case the ruling is one admitting evidence,
a timely objection or motion to strike appears of record, stating the specific
ground of objection." The State argues that "a timely objection" was not
made, see 2 Wharton's Criminal Evidence § 8:32 (15th ed. 1998) (as a
general rule, lilt is incumbent on counsel to state an objection to a
question before the answer is given" because "the question usually
indicates if the answer is objectionable or not"); also, that no "motion to
strike appears of record."    See 21 Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure §5037.7, at 749 (2d ed. 2005)
(even a permissibly delayed objection "alone does not suffice to preserve an
error"; the objector should also move to strike). We would probably reject
the State's argument, if the record adequately established "the specific
ground of objection," NRS 47.040(1)(a), but it does not. This leaves us to
speculate as to whether error, still less an abuse of discretion, occurred.
               Nevada's hearsay statute, like its federal counterpart,
"contains at least four possible bases for [a hearsay] objection to proffered
co-conspirators' testimony: that the declarant was not a co-conspirator;
that the party against whom the statement is offered was not a co-
conspirator; that the statement was not made 'in the course' of the
conspiracy; that the statement was not made 'in furtherance of the
conspiracy."    United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997)
(addressing FRE 801(d)(2)(E)). All the record shows here is that Holmes
objected—even, perhaps, moved to strike—based on hearsay. In response,
the prosecution invoked the coconspirator exception to the hearsay rule.
We do not know what Holmes argued to overcome the State's invocation of



                                      13
                NRS 51.035(3)(e), see 21 Federal Practice and Procedure, supra, §5036.1,
                at 645 ("if in response to a hearsay objection, the opponent invokes a
                hearsay exception, the objector will probably have to explain to the judge
                why the exception does not apply in order to preserve the error for appeal"
                (interpreting FRE 103, the counterpart to NRS 47.040(1)(a))), nor as in
                Burton, 126 F.3d at 673, can we say whether Holmes objected that Reed's
                statement to Richardson was not "in the course" or "in furtherance" of the
                conspiracy. And unless the argument made on appeal appears in the
                record below, this court lacks a satisfactory basis for assessing prejudicial
                error. See Fish v. State, 92 Nev. 272, 276, 549 P.2d 338, 340-41 (1976)
                (objection on the grounds that a coconspirator's statements "were not
                made during the course or in furtherance of the conspiracy" was not
                adequately preserved by an objection to the adequacy of the proof of the
                conspiracy). Our review, therefore, is limited to plain error. Burton, 126
                F.3d at 673-74; see Fish, 92 Nev. at 276, 549 P.2d at 341.
                            For error to be plain, the complained-of error must be "so
                unmistakable that it reveals itself by a casual inspection of the record."
                Saletta v. State, 127 Nev. „ 254 P.3d 111, 114 (2011) (quoting
                Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995)).
                Holmes argues that Reed's statements to Richardson about the shooting
                could not have been made "during the course and in furtherance of the
                conspiracy" because, by the time he spoke to Richardson, the robbery was
                over and Nelson was dead. But Crew v. State, 100 Nev. 38, 46, 675 P.2d
                986, 991 (1984), holds that, under NRS 51.035(3)(e), "the duration of a
                conspiracy is not limited to the commission of the principal crime, but
                extends to affirmative acts of concealment." Thus, in Crew, we upheld
                admission of statements by a coconspirator about plans to move buried

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bodies in case the party against whom the statements were admitted, who
was being interviewed by the police at the time the statements were made,
divulged the bodies' location to the police. This was deemed "in
furtherance of the conspiracy to commit the crime and to 'get away with
it." Id.; see 30B Michael H. Graham, Federal Practice and Procedure §
7025, at 289 (interim ed. 2011) ("Statements in furtherance of [a]
conspiracy include statements made to. . . induce further participation,
prompt further action, reassure members, allay concerns or fears, keep
conspirators abreast of ongoing activities, [or] avoid detection," though
"mere conversations or narrative declarations of past events are not in
furtherance of the conspiracy.").
            Richardson's conversation with Reed occurred less than two
hours after the murder and robbery, while police and ambulance crews
were still at the crime scene. It appears that Reed was updating
Richardson, on whom both Reed and Holmes relied for advice and help, on
the situation—though it can also be argued (it was not, at least not on the
record we have) that Reed's remarks amounted to self-serving blame-
shifting. We know that Reed and Holmes did not get the drugs and money
they hoped for from Nelson and that Richardson gave Holmes money at
the bus station so he could leave town hours after he talked to Reed. But
with no record discussion of the "during the course and in furtherance of
the conspiracy" requirements of NRS 51.035(3)(e) as they might apply to
what Reed said to Richardson about the shooting, it is not possible to say
whether the conversation was to "keep conspirators abreast of ongoing
activities [or] avoid detection" (admissible) or "mere conversations or
narrative declarations of past events" (inadmissible). Assuming objection,
argument, perhaps an offer of proof, a ruling could legitimately have gone



                                     15
either way. Given this record, an abuse of discretion amounting to plain
error does not appear. 3



            Holmes argues that the district court should have suppressed
the unwarned statement he made to the Nevada detectives who
interviewed him at his California parole officer's office. This argument
fails under Howes v. Fields, 565 U.S. „ 132 S. Ct. 1181, 1192-94
(2012), because the interrogation was not custodial, see also Minnesota v.
Murphy, 465 U.S. 420, 431 (1984), and thus did not require a warning
under Miranda v. Arizona, 384 U.S. 436 (1966). Also, the district court's
finding of voluntariness was correct.     Rosky v. State, 121 Nev. 184, 190,
111 P.3d 690, 694 (2005).
            Holmes's remaining assignments of error also fail. The
detectives testified about their investigation, not witness veracity, and as
such, the district court had no reason to limit the scope of the testimony,
Cordova v. State, 116 Nev. 664, 669-70, 6 P.3d 481, 484-85 (2000). Finally,
the statements made in the prosecutor's closing argument do not warrant
reversal because, while improper, they did not substantially affect the




      3 Holmes  also argues that the admission of Reed's statement to
Richardson violated his rights under the Confrontation Clause. This
argument fails, since coconspirator statements to one another or even to a
governmental informant are "nontestimonial statements that fall[
outside the requirements of the Confrontation Clause." United States v.
Hargrove, 508 F.3d 445, 449 (7th Cir. 2007) (citing and discussing
Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington,
547 U.S. 813 (2006)).



                                     16
                    jury's verdict.   Valdez v. State, 124 Nev. 1172, 1188 - 89, 196 P.3d 465, 476
                    (2008).
                                 Accordingly, we affirm.

                                                                     Pieku            ,    C.J.
                                                         Pickering

                    I concur:




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MZIM                                                                  .3;                 PIM
                SAITTA, J., dissenting:
                            I respectfully dissent. In my view, the district court abused its
                discretion in admitting the lyrics from Holmes' song "Drug Deala" because
                the lyrics were of limited, if any, probative value and their limited
                probative value was substantially outweighed by the danger of unfair
                prejudice. I further conclude that the error was not harmless and
                therefore I would reverse the judgment of conviction and remand for a new
                trial.

                Admission of the lyrics
                            Relevant evidence is inadmissible when "its probative value is
                substantially outweighed by the danger of unfair prejudice." NRS
                48.035(1). I suggest that the lyrics were not probative for two reasons:
                they are not clearly an admission rather than artistic expression, and they
                are not sufficiently specific as to be relevant to the charged crimes.
                            First, the lyrics appeared more a product of artistic expression
                consistent with the "gangsta rap" genre of music than an admission.
                "Gangsta rap" describes a variation of rap music that addresses gang
                culture, race conflict, and poverty. Leola Johnson, Silencing Gangsta Rap:
                Class and Race Agendas in the Campaign Against Hardcore Rap Lyrics, 3
                Temp. Pol. & Civ. Rts. L. Rev. 25, 25 n.1 (1994). In an attempt to broaden
                the audience for early rap music, the recording industry exploited the
                fascination of the suburban middle class with inner-city life by promoting
                music that "afforded a glimpse into a dark world of violence, crime,
                poverty and death." Sean-Patrick Wilson, Comment, Rap Sheets: The
                Constitutional and Societal Complications Arising from the Use of Rap
                Lyrics as Evidence at Criminal Trials, 12 UCLA Ent. L. Rev. 345, 349-50
                (2005). Companies responded to audience demand by promoting images
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for signed artists that featured ever-increasing depictions of violence and
criminal activity. See id. at 350-52. "As demand for more coarse lyrics
grew, rappers were compelled to latch onto any negative image that would
sell records." Id. at 353. Because the perception of an artist's authenticity
was also correlative to commercial success, "[m]any rappers presended]
themselves as gangsters, drug dealers, or pimps because it help[ed] sell."
Jason E. Powell, Note, R.A.P.: Rule Against Perps (Who Write Rhymes), 41
Rutgers L.J. 479, 516 (2009); see Andrea Dennis, Poetic (In)Justice? Rap
Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1,
16 (2007) ("Artists' images are constructed and marketed for maximal
financial profit."). While many artists maintain that their lyrics
accurately represent their lives, the depictions may be something from
their past or whole or partial fabrications. Dennis, supra, at 17-19; see
also United States v. Foster, 939 F.2d 445, 456 (7th Cir. 1991) (recognizing
that rap lyrics may portray a fictional character). Therefore, even an
amateur artist such as Holmes would feel compelled to mimic more
successful artists. See Dennis, supra, at 17 ("Aspiring artists will model
their more successful counterparts. It is fair to say that few in the rap
industry want to be starving artists.").
            The majority relies on the Sixth Circuit's decision,       United
States v. Stuckey, 253 F. App'x 468 (6th Cir. 2007), in which the federal
district court admitted lyrics after observing, "[y]ou can certainly not say
when somebody writes about killing snitches, that it doesn't make the fact
that they may have killed a snitch more probable."       Id. at 482 (internal
quotations omitted). This reasoning is troublesome as it does not account
for the nature of the artistic expression or of the market forces that act
upon it. See Dennis, supra, at 17 ("One consequence of commercialization



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                is that artist images and lyrical narratives are not necessarily truthful—
                whether in whole or in part."). Violent imagery finds its way into lyrics
                because that is what the audience craves and the industry rewards, not
                necessarily because the artist has a propensity to engage in the acts
                depicted. As the premise upon which the federal district court based its
                conclusion is mistaken, this court should not rely on the Stuckey court's
                decision to affirm that conclusion.
                            Second, the lyrics are not sufficiently specific as to suggest
                that the description contained therein was that of the charged crime. See
                Brooks v. State, 903 So. 2d 691, 699-700 (Miss. 2005) (concluding rap lyrics
                discussing murder with firearm not sufficiently probative to trial for
                murder conducted with a meat fork). Holmes was tried for a single
                robbery and murder in the parking lot of a recording studio and was
                alleged to have stolen a necklace and rifled through the victim's pockets.
                Conversely, the lyrics seemingly describe two robberies: the theft of a
                necklace in a night club and a masked robbery in a parking lot. In neither
                robbery do the lyrics reference any sort of shooting. While both of the
                described robberies share similarities with the charged crime, they also
                describe rather routine criminal behavior that is frequent fodder for rap
                lyrics. See, e.g., 2BRoy, Parking Lot Jacking, on Belizean Girl (Jah Bless
                Music & Films 2011) (describing assailant robbing club patrons of jewelry
                and other property in parking lot); Ya Boy, Robbery, on The Best of #1
                (Indie Music Group 2010), lyrics available at http://www.cloudlyrics.com/
                ya-boy-lyrics-robbery.html (describing armed robberies by a masked
                assailant where jewelry and other property taken); 50 Cent,             Ski
                Mask Way, on       The Massacre (Shady Records/Aftermath Records/



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                Interscope Records 2005),       lyrics available at http://rapgenius.com/
                50-cent-ski-mask-way-lyrics (similar).
                            As the lyrics were not appreciably probative, any unfair
                prejudice would render them inadmissible. Gangsta rap lyrics are prone
                to unfairly prejudice the defendant in the eyes of the jury, see Powell,
                supra, at 517 ("Part of rap's charm is its ability to produce discomfort"),
                and several courts have made note of how coarse and violent lyrics may
                prejudice a defendant, United States v. Gamory, 635 F.3d 480, 493 (11th
                Cir. 2011) (recognizing rap video was very prejudicial because it contained
                "violence, profanity, sex, promiscuity, and misogyny and could reasonably
                be understood as promoting a violent and unlawful lifestyle"), cert. denied,
                565 U.S. , , 132 S. Ct. 826, 826 (2011); Boyd v. City & County of San
                Francisco, 576 F.3d 938, 949 (9th Cir. 2009) (recognizing that lyrics
                advocating prostitution were unfairly prejudicial); State v. Cheeseboro, 552
                S.E.2d 300, 313 (S.C. 2001) (holding that admission of lyrics was unfairly
                prejudicial as they included only a vague reference to the criminal acts at
                issue but otherwise described the defendant's propensity for violence). In
                a study conducted by Dr. Stuart Fischoff, participants found a
                hypothetical defendant who wrote gangsta rap lyrics more likely to have
                committed murder than a hypothetical defendant who did not write such
                lyrics. Wilson, supra, at 371-73. The study further revealed "that
                potential jurors were 'significantly inclined' to judge a gangsta rap lyricist
                not accused of murder more harshly and with more disdain than a non-
                gangsta rapper who was accused of murder."          Id.   The study findings
                indicate that the music industry has been successful in marketing rap
                artists as criminals. As the industry and its artists translate this
                appearance of authenticity into record sales, they have no financial

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                interest in debunking this myth. The reactions reflected in the Fischoff
                study demonstrate the kind of unfair prejudice that may result from
                consideration of rap lyrics.     See State v. Eighth Judicial Dist. Court
                (Armstrong), 127 Nev. „ 267 P.3d 777, 781 (2011) (explaining that
                unfair prejudice includes decisions based on improper grounds, such as
                emotion, bias, sympathy, anger, or shock, rather than proof specific to the
                charged offense).
                            The Stuckey      court overlooked this potential for unfair
                prejudice from the admission of rap lyrics. In affirming the failure to give
                a limiting instruction for the admission of the lyrics, the court observed
                that "Ed ap is no longer an underground phenomenon and is a mainstream
                music genre. Reasonable jurors would be unlikely to reason that a rapper
                is violent simply because he raps about violence." Stuckey, 253 F. App'x at
                484. The court failed to consider that much of the public, even the district
                court judge who observed that Stuckey's lyrics demonstrated that it was
                more likely that he engaged in the behavior described, see id. at 482, is not
                aware of lore that the recording industry perpetuates in marketing its
                artists, see Dennis, supra, at 13 ("Despite the present-day ubiquity and
                popularity of rap music, the existence and use of methods governing the
                composition of lyrics are not part of the public's everyday learning and
                experience."); Wilson, supra, at 352 ("Whatever ties existed between rap
                music and the real inner-city, suburban America perceived them as gospel
                truths."). In light of its failure to fully appreciate the potential for unfair
                prejudice in the admission of such lyrics, this court should not rely on the
                Stuckey decision.
                            I conclude that although the district court made a thorough
                evaluation of and gave careful consideration to the admission of the lyrics

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here, the court nonetheless abused its discretion in admitting the rap
lyrics at trial. The lyrics were not sufficiently probative as the crimes
depicted in the lyrics were dissimilar from the crime alleged. The lyrics
did not reflect knowledge of the specific event any more than they describe
routine criminal behavior. Moreover, the scant probative value of the
lyrics was far outweighed by the danger of unfair prejudice that they
presented.

Harmless error
             I further conclude that admitting the lyrics was not harmless.
See Fields v. State, 125 Nev. 776, 784-85, 220 P.3d 724, 729 (2009)
(reviewing erroneous admission of evidence for harmless error). In
considering whether the erroneous admission of evidence had a
"substantial and injurious effect or influence in determining the jury's
verdict," Tavares v. State, 117 Nev. 725, 732, 30 P.3d 1128, 1132 (2001)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)), this court
considers "whether the issue of innocence or guilt is close, the quantity
and character of the error, and the gravity of the crime charged."      Big
Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985). This case is
impacted heavily by two of the factors. The character of the error was
significantly damaging. As noted in the Fischoff study, an individual who
writes violent rap songs is viewed with more distaste than an accused
murderer who did not write violent rap songs. While the question of guilt
or innocence is not exceptionally close in this case, the purported
confession in the form of a disparaged and often misunderstood form of
expression likely had a significant impact on the jury's determination of




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                    guilt. Lastly, Holmes was charged with first - degree murder with the use
                    of a deadly weapon, which exposed him to two possible consecutive life
                    sentences, and robbery with the use of a deadly weapon, which exposed
                    him to two possible consecutive sentences of 15 years.     See 2003 Nev.
                    Stat., ch. 470, § 4, at 2944-45 (NRS 200.030(4)(b)); 2003 Nev. Stat., ch.
                    137, § 7, at 770-71 (NRS 200.030(4)(3)); NRS 200.380(2); 1995 Nev. Stat.,
                    ch. 455, § 1, at 1431 (NRS 193.165).
                                Accordingly, I would reverse the judgment of conviction and
                    remand for a new trial.




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