HEADNOTE: Hannah v. State, No. 151, September Term, 2009
EVIDENCE; CROSS-EXAMINATION; IMPEACHMENT OF A CRIMINAL DEFENDANT WITH "RAP" LYRICS WRITTEN BY THE DEFENDANT THAT DESCRIBE ACTS OF VIOLENCE: The trial court does not have discretion to permit cross-examination that is harassing, unfairly prejudicial, confusing, or unduly repetitive. In the case at bar, the Circuit Court abused its discretion by permitting the State to cross- examine Petitioner about each and every one of ten violent "rap" lyrics that Petitioner had written. As the ten "Your lyrics?" questions served no purpose other than the purpose of showing that Petitioner has a propensity for violence, he is entitled to a new trial.
Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbera, JJ.
Opinion by Murphy, J. Harrell, J., Concurs.
In the Circuit Court for Harford County, a jury convicted Justin Ray Hannah, Petitioner, of the attempted murder of his former girlfriend's new boyfriend. The State's evidence was sufficient to establish that he committed this offense in the early morning hours of April 15, 2007. After Petitioner's conviction was affirmed by the Court of Special Appeals in an unreported opinion, he filed a petition for a writ of certiorari in which he presented this Court with two questions:
1. In a prosecution for attempted murder, did the admission of defense evidence that [Petitioner] did not own or have access to a gun justify the admission into evidence of "rap" lyrics and associated drawings produced by [Petitioner] two years before the offense which dealt with guns and violence?
2. Did the trial court err in excluding evidence that a key State's witness had an ulterior motive to implicate the [Petitioner]?
We granted the petition. 411 Md. 740, 985 A.2d 538 (2009). For the reasons that follow, we hold that the Circuit Court erred in permitting the prosecutor to cross-examine Petitioner about ten "rap" lyrics that he had written. As we are not persuaded beyond a reasonable doubt that this error was harmless, we shall reverse the judgment of the Court of Special Appeals, and direct that the case be remanded for a new trial.
Petitioner's former girlfriend testified as follows. She ended her relationship with Petitioner in early April of 2007. On the evening of April 14, 2007, while she was at the home of her new boyfriend, she received several telephone calls from Petitioner,*fn1 who told her that he wanted to meet her new boyfriend. She and her new boyfriend agreed to meet Petitioner in the parking lot of a church on Cedar Church Road. She and her new boyfriend arrived at that location about 3:00 a.m. on April 15th in a truck belonging to her new boyfriend's father. When they arrived, she received a phone call from Petitioner, who asked her if her new boyfriend was in the truck. When she answered yes to this question, Petitioner drove by the parking lot in his Ford Escort. Although she recognized Petitioner and his vehicle, and was able to see that there was a second person in Petitioner's vehicle, she was unable to identify that person. At this point, Petitioner rolled down the driver's side window, and either he or the other person in the Escort fired three shots at her and her new boyfriend. Fortunately, neither she nor her new boyfriend was injured.
Immediately after the shooting, she and her new boyfriend returned to his home and called the police. After the police arrived at that location, she received a telephone call from Petitioner. She put the call on speaker-phone so the officers could hear the conversation. Although she was able to identify Petitioner as the caller, she could not remember what Petitioner said. The State's case included testimony that during this phone call, the caller said words to the effect that, "Your boy's done, this is finished, that is why we popped shots."
Petitioner testified that he arrived at his home at 12:07 a.m. on April 15, 2007 and never left until the next morning. He acknowledged that he and his former girlfriend had several telephone conversations on the night of April 14, 2007, but the only reason why he called her was to "explain to her that [he] wasn't messing around with other females[.]"
The following transpired during Petitioner's direct examination:
[PETITIONER'S ATTORNEY]: Did you ever possess a handgun?
[PETITIONER'S ATTORNEY]: Did you ever hold one in your hand?
[PETITIONER'S ATTORNEY]: Did you ever fire one? [PETITIONER]: No, sir.
[PETITIONER'S ATTORNEY]: Does your stepfather, , own a gun?
[PETITIONER]: Not to my knowledge.
[PETITIONER'S ATTORNEY]: Do any of your buddies have a gun?
[PETITIONER'S ATTORNEY]: Did you ever have access to a gun? In other words, on April 15th or 14th, if you wanted to put your hand on one for some reason, did you know anyone that you could get one from?
[PETITIONER'S ATTORNEY]: So, if you wanted to get one, what would you do?
[PETITIONER]: I wouldn't know what to do. Like I don't live in an area where guns are heavy around. I don't know anybody that possesses any firearms.
[PETITIONER'S ATTORNEY]: Do you know the difference between a revolver and an automatic?
[PETITIONER]: I know they are handguns.
[PETITIONER'S ATTORNEY]: Is there any difference between the two?
[PETITIONER]: I believe they are both handguns.
The following transpired during Petitioner's cross-examination:
[STATE'S ATTORNEY]: You told the ladies and gentlemen of the jury that you do not possess a gun?
[STATE'S ATTORNEY]: You never held a gun? [PETITIONER]: No, ma'am.
[STATE'S ATTORNEY]: You never fired a gun? [PETITIONER]: That's correct.
[STATE'S ATTORNEY]: But you do have an interest in guns, don't you?
[STATE'S ATTORNEY]: But you do have an interest in guns, don't you?
[PETITIONER]: Like what do you mean by interest?
[STATE'S ATTORNEY]: You are interested in them. [PETITIONER]: No, ma'am.
[STATE'S ATTORNEY]: Not at all?
[PETITIONER]: I don't have an interest in guns.
[STATE'S ATTORNEY]: Did you ever write about guns?
[PETITIONER]: I have wrote raps, like freestyles about them. Like not about them, but had been incorporated.
[STATE'S ATTORNEY]: Your Honor, may counsel approach?
(WHEREUPON, COUNSEL APPROACHED AND THE FOLLOWING ENSUED.)
[STATE'S ATTORNEY]: Again, giving notice of where I
intend to go with Mr. Hannah, he has said that he has no interest in guns. I intend to show him a copy or the original of his composition book which was recovered from his bedroom which has rap lyrics of driveby shootings and people going pop, pop, pop and the burners, which I believe is another word for gun, is under the seat and finishing off with artwork of a semi-automatic nine millimeter.
[PETITIONER'S ATTORNEY]: I think if he ever possessed a gun or was seen in possession of a gun it is relevant. How old are these? What is the date?
[STATE'S ATTORNEY]: His homework in the composition book is dated 2005. However, this was recovered from the top of his bar area in his bedroom. So, it is not as though it was found in the far depths of a box in the closet.
[PETITIONER'S ATTORNEY]: I think it is a balancing test, Your Honor, and I would say that this is not relevant to the issues in this case. The fact that he writes music - some you ever [sic] our greatest composers write music that has certain aspects to it. That doesn't mean that they believe in homicides or anything of that sort. I don't think there is any probative value to this. She asked if he is interested in guns and he says no. So, the fact that he wrote a rap thing two years ago -
[STATE'S ATTORNEY]: The raps aren't dated. THE COURT: Plus there is a drawing. Overruled.
(WHEREUPON, COUNSEL RETURNED TO THE TRIAL TABLE AND THE FOLLOWING ENSUED.)
[STATE'S ATTORNEY]: Mr. Hannah, you told the ladies and gentlemen of the jury that you do not have an ...