Travon Venable of San Bernardino will receive a new trial after the Court of Appeal ruled that his murder conviction relied upon evidence from a rap video that is now discounted under state law.
Venable was charged with conducting a drive-by shooting at the crossroads of Medical Center Drive and Union Street, close to Arroyo Valley High School, on March 5, 2014. The shooting resulted in Enon “Bubba” Edwards’ death, and Kiyon “Kiki” Drake’s collapsed lung.
Venable maintained his innocence.
According to the appellate ruling, police began suspecting Venable of committing homicide after a former paid informant, who remains anonymous, named Venable as the driver of the car on May 25, 2014. Police said they had found a gun in the informant’s car that day.
Rap video
Prosecutors relied on the informant’s video, and a rap video that Venable’s younger brother made, as evidence.
Venable appeared in the video with a rifle, which he said was a prop. Venable had no lines in the video. The prosecutor relied on one line from the song, according to the ruling:
“Got word from a bird that they did that (slur) dead wrong. Slid up Medical and left that (slur) head gone,” someone rapped.
The prosecution played the video three times during trial, the Court of Appeal said.
“There he is (Venable),” the prosecutor said during closing arguments, according to the appellate ruling. “There he is. They kill them on-scene. They kill. Slid up Medical, left that (racial slur)’s head gone. That’s our victim’s murder. There he is. There he is (Venable). There he is,” the prosecutor said, quoting the video.
Art as evidence
Assembly Bill 2799 of 2022 protected creative expression, such as rap, from being admitted as evidence. Under the law, courts must consider a rap video’s possible prejudice to the jury before admitting it as evidence.
“Unfortunately, there are still cases where creative expressions are used in trial in a manner that incites explicit or implicit bias. Even in cases where creative expressions are not admitted as evidence, its discussion in front of a jury can poison the well by allowing for explicit or implicit basis against certain forms of creative expression to play a role in the case,” Assemblymember Reggie Jones-Sawyer (D-Los Angeles) argued at the time.
The Court of Appeal found concern that submitting the evidence may have had the racial effects that the act was passed to avoid.
Ruling
The court found that the remaining evidence was shaky.
“The only witness who identified him as being involved was Doe, a police informant who gave a series of conflicting accounts of the incident and had testified Venable was being framed. Meanwhile, Venable’s aunt provided an alibi for him, and Venable testified he was not involved in the shooting. The prosecution’s emphasis of the rap video at various points in the trial, including in closing arguments, likely had an effect on the outcome,” the Court of Appeal ruled.
Informant testimony
The informant first said he saw the shooting from the intersection where it occurred. He named Venable as the driver and Elgin Johnson as the shooter. Surveillance footage did not show him there, and he later said he actually saw the car from a block away.
The informant also said Johnson admitted to the crime on Facebook, but that he deactivated his Facebook soon after. Police could not find that admittance when they obtained Johnson’s Facebook records.
The informant later told a defense investigator that he did not see the shooting, and that the police were forcing him to identify Venable and Johnson.
He also said the gun found in his car was placed there to get him to give a false statement. The informant repeated his claim that the gun was planted to gain his testimony during trial, while he was under protective custody.
Case information
San Bernardino Superior Judge Michael Smith presided over the trial.
Warren Williams represented the state on appeal.
Joshua Siegel of Santa Monica represented Venable.
Fourth District Court of Appeal, Division Two, Justice Marsha Slough wrote the opinion, which Presiding Justice Manuel Ramirez and Justice Frank Menetrez joined.
Appellate Case No. E071681
Superior Court Case No. FSB17002517
Read the ruling here.
