Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Montague v. State

Court of Special Appeals of Maryland

December 23, 2019

LAWRENCE ERVIN MONTAGUE
v.
STATE OF MARYLAND

          Circuit Court for Anne Arundel County Case No. 02-CR-17-000378

          Fader, C.J., Kehoe, Reed, JJ.

          OPINION

          KEHOE, J.

         After a jury trial in the Circuit Court for Anne Arundel County, Lawrence Ervin Montague was convicted of murder in the second degree and several related offenses. He raises four issues on appeal, which we have reworded and reordered:

1. Did the trial court err in admitting, as substantive evidence of Montague's guilt, rap lyrics performed by Montague on a phone call while he awaited trial?
2. Did the trial court err when it denied Montague's motion to suppress evidence of a pretrial photo identification on the grounds that it was the result of an impermissibly suggestive procedure and was thus unreliable?
3. Did the trial court err in giving the jury an instruction on flight and concealment?
4. Did the trial court err in limiting cross-examination of a critical witness about her potential bias?

         Because our answer to each of these questions is no, we will affirm the convictions.

         Background

         Montague does not challenge the legal sufficiency of the evidence against him. We will summarize the evidence produced at trial to give context to the parties' appellate contentions. See Washington v. State, 180 Md.App. 458, 461 n.2 (2008).

         During the early morning hours of January 16, 2017, George Forrester was shot in the parking lot of the Woodside Gardens apartment complex in Annapolis. He was transported to a nearby hospital, where he died a short time later.

         Tracy Tasker, Mr. Forrester's cousin, witnessed the shooting. According to her testimony, Tasker and Mr. Forrester had driven to Woodside Gardens in his pickup truck that night to purchase cocaine from Montague. Before the purchase, Tasker had given Mr. Forrester a counterfeit $100 bill to pay for the cocaine. Mr. Forrester purchased the cocaine from Montague while Tasker waited in her cousin's pickup truck. It was the State's theory that Montague almost immediately realized that the $100 bill was counterfeit and so he followed Mr. Forrester out into the parking lot and shot him as he was walking towards his truck. According to the State, Montague then fled from the scene.

         Two days after the shooting, Tasker identified Montague as Mr. Forrester's assailant from a photo array prepared by the police. At the same time, she told the police that she recognized Montague as the shooter because she had purchased drugs from him in the past. About two weeks later, Montague was arrested by the police at a motel near Annapolis.

         After his arrest, Montague made several telephone calls from the county detention facility. During a call recorded on October 7, 2017, Montague made a number of statements in the form of a self-composed rap. To buttress its case at trial, the State introduced into evidence a recording of Montague's recitation of the rap lyrics. These lyrics are the focus of part 1 of our analysis.

         In addition to Tasker's testimony, the testimony of another witness placed Montague at the Woodside Garden apartment complex the night of the shooting. Tajah Brown, the mother of Montague's child, testified that one of Montague's sisters lived at Woodside Gardens and that she and Montague had been staying in her apartment on the night of the shooting. Brown also testified that Montague left the apartment at 11:00 p.m. on January 15, 2017, just hours before Mr. Forrester was killed. Brown was also with Montague when he was arrested. We discuss this part of her testimony in part 3 of our analysis.

         The State presented other evidence as well. There was medical evidence as to the cause of death. A firearms expert testified that shell casings found near the site of the shooting were fired from a .40-caliber handgun. There was a limited amount of DNA evidence that was inconclusive. Finally, the State played a video recording from Woodside Gardens' security system that showed a man in dark clothing running from the scene of the shooting. Although the runner's face was not clear in the video, Tasker told the jury that the man who ran was the shooter and that the shooter was Montague.

         Montague did not present any evidence. The jury returned verdicts of guilty as to murder in the second degree, assault in the first degree, use of a firearm in a crime of violence, use of a firearm in the commission of a felony, and wearing, carrying, or transporting a handgun on or about the person. The court sentenced Montague to a thirty-year term of imprisonment for second-degree murder with a consecutive twenty-year sentence for use of a firearm in a crime of violence. The court merged the remaining convictions for sentencing purposes with the murder and handgun convictions.

         Analysis

         1. The rap lyrics

         In its case in chief, the State introduced into evidence a recording of a telephone call between Montague and a friend, made while Montague was in pretrial detention. During this call, Montague recited a rap lyric of his own composition, which included the following (emphasis added):

Y.S.K. / I always let it spray / And, if a n---a' ever play /
Treat his head like a target / You know he's dead today /
Do his ass like a Navy Seal /
My n----s we ain't never squeal, /
I'll pop your top like an orange peel /
You know I'm from the streets / F.T.G. / you know the gutter is me /
Cause I'll be always repping my Y.S.K. shit, / Cause I'm the King / I'll be playin' the block bitch/
And if you ever play with me/ I'll give you a dream a couple shots snitch /
It's like hockey pucks the way I dish out this/
There's a .40 when this bitch goin' hit up shit/ 4 or 5 rip up your body quick/
Like a pickup truck /But you ain't getting picked up/
You getting picked up by the ambulance / You could be dead on the spot / I'll be on your ass.

         After the voice on the other end of the line warned Montague about reciting the verses, Montague replied, "I'm gucci. It's a rap. F--k they can do for-about a rap?"

         Montague contends that the trial court erred in admitting the recording of these rap lyrics for two reasons. First, relying upon Md. Rule 5-402, [1] he asserts that the lyrics were inadmissible on relevancy grounds, because they were so "ambiguous and equivocal" that they provided the jury nothing more than fodder for speculation. Second, Montague argues that admission of the rap lyrics violated Md. Rule 5-403, which provides that even relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." He relies primarily upon Hannah v. State, 420 Md. 339, 343-44, 348 (2011), for this proposition.

         In response, the State argues that Montague's recorded statement was properly admitted because it was made after the murder and can reasonably be interpreted as containing specific references to the shooting. Finally, the State also contends that that the probative value of the lyrics was not substantially outweighed by any unfair prejudice.

         We agree with the State. The trial court did not err when it admitted Montague's rap lyrics into evidence. This was a relevant statement of a party opponent, whose probative value was not substantially outweighed by any unfair prejudice caused by its admission.

         A.

         Before addressing the merits of the parties' contentions, we will provide some background information. Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md. Rule 5-401. Whether evidence is relevant is a legal issue reviewed by appellate courts de novo. Schisler v. State, 394 Md. 519, 535 (2006).

         Relevancy is not the be-all and end-all of admissibility, however. Relevant evidence must be "worth what it costs." 1 McCormick on Evid. § 185 (7th ed. 2016). Trial courts should exclude even relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." Md. Rule 5-403. Evidence is unfairly prejudicial "when it tends to have some adverse effect beyond tending to prove the fact or issue that justified its admission." Hannah v. State, 420 Md. 339, 347 (2011) (cleaned up). In deciding whether a piece of evidence is "unfairly prejudicial" under the rules of evidence, this Court weighs "the inflammatory character of the evidence against the utility the evidence will provide to the jurors' evaluation of the issues in the case." Smith v. State, 218 Md.App. 689, 705 (2014). When evidence is of "a highly incendiary nature," its admissibility hinges on whether it "greatly aid[s] the jury's understanding of why the defendant was the person who committed the particular crime charged." Id. (quoting Gutierrez v. State, 423 Md. 476, 495 (2011)). Importantly, although general relevancy issues are reviewed de novo, deciding whether the unfairly prejudicial impact of a particular item of evidence substantially outweighs its probative value falls within the trial court's discretion. Smith, 218 Md.App. At 704.

         Maryland has but one reported appellate decision addressing the relevancy of rap lyrics and the unfair prejudice that may result from their admission: Hannah v. State, 420 Md. 339 (2011). This case is the cornerstone of Montague's contentions, and we will discuss Hannah later in our analysis. But because Hannah involves the admission of rap lyrics for impeachment purposes-not as substantive evidence of a defendant's guilt, introduced in the prosecution's case in chief-we think it useful to first survey some of the decisions from other jurisdictions to distill the principles that guided the Hannah Court and that will shape our analysis here.[2]

         One of the leading cases on the admissibility of rap lyrics is State v. Skinner, 95 A.3d 236 (N.J. 2014). Skinner was charged with attempted murder and related crimes. A police search after his arrest uncovered notebooks full of "profane and violent" rap lyrics authored by Skinner. Id. at 240. A rap-music label had recorded of some of Skinner's lyrics in the past, and the prosecution conceded that some of the lyrics admitted into evidence had been written "long before" the commission of the crimes in question. Id. at 240. At a pretrial hearing, Skinner objected to the admission of these lyrics, arguing their admission would violate New Jersey Rule of Evidence 404(b). Id. This rule, like Md. Rule 5-404(b), [3] renders inadmissible "evidence of other crimes, wrongs, or acts" if used "to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J. R. Evid. 404(b). Such bad-acts evidence could be introduced, however, for non-propensity purposes, like when it is used "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." N.J. R. Evid. 404(b).

         The trial court overruled Skinner's objection because, it said, the lyrics provided insight into Skinner's motive and intent in committing the crimes charged. Skinner, 95 A.3d at 240-41. A police officer then read to the jury extensive excerpts (totaling thirteen pages of transcript testimony) of the lyrics, material which the Court characterized as "replete with expletives and included graphic depictions of violence, bloodshed, death, maiming, and dismemberment." Id. at 241.

         On appeal from Skinner's conviction, the Supreme Court of New Jersey concluded that admitting the rap lyrics had been an error. Id. at 253. The court's holding was that the admission of the evidence violated N.J. R. Evid. 404(b) because the "graphically violent" lyrics were fairly viewed as evidence that Skinner had "a propensity toward committing, or at the very least glorifying, violence and death." Id. at 251. But the court's reasoning relied on the "probative value" and "unfair prejudice" balancing language of N.J. R. Evid. 403.[4] The court explained that prejudicial effect of reading the lyrics "overwhelm[ed]" their de minimis probative value. Id. Skinner's "fictional expressive writings" did not "exhibit[] an unmistakable factual connection to the charged crimes." Id. at 252. There was an "utter absence" of evidence that Skinner had engaged in any of the conduct portrayed in his rap lyrics. Id. at 251. The court also noted that Skinner's lyrics had been written "long before the time of [the victim's] shooting," making them far less probative of any motive Skinner would have had the evening the victim was shot and almost killed. Id. at 251.

         Simply put, "absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced," id. at 251- 52, Skinner's lyrics amounted to little more than bad-acts evidence used for forbidden propensity purposes. Without a "strong connection" to the attempted murder with which Skinner had been charged, the admission of his rap lyrics "risked unduly prejudicing the jury without much, if any, probative value." Id. at 253. The Skinner court did note, however, that "rap lyric evidence that provides direct proof against a defendant-such as an admission or details that are not generally known and dovetail with the facts of the case" could be admissible, subject to general relevancy rules and Rule 403 balancing. Id. at 249 n.5 (emphasis added). Such lyrics, it said, would not be considered character evidence used for forbidden propensity purposes under N.J. R. Evid. 404. Id.

         The Supreme Court of South Carolina reached a similar result in State v. Cheeseboro, 552 S.E.2d 300 (S.C. 2001). At Cheeseboro's trial for, among other charges, armed robbery, kidnapping and murder, the trial court allowed the prosecution to introduce into evidence these defendant-composed lyrics: "I . . . put [your] blood on the dance floor," "I spray fire in the sky," and "Fools leave clues, I leave a blood pool." Id. at 312. On appeal, the South Carolina court concluded the admission of the lyrics violated South Carolina's analogue to Md. Rule 5-403 (emphasis added):

The trial judge admitted these lyrics as an admission against interest under Rule 801(d)(2), based on the song's reference to leaving no prints and bodies left in a pool of blood. We find these references too vague in context to support the admission of this evidence. The minimal probative value of this document is far outweighed by its unfair prejudicial impact as evidence of appellant's bad character, i.e. his propensity for violence in general. . . . [T]hese lyrics contain only general references glorifying violence. Accordingly, the . . . song should have been excluded. See [S.C. R. Evid. 403] (although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice).

Id. at 313.

         Under different facts, however, other courts have approved the admission of a defendant's rap lyrics as substantive evidence of his guilt. In Greene v. Commonwealth, 197 S.W.3d 76 (Ky. 2006), the defendant was charged with murdering his wife. At trial, the prosecution introduced a video of a rap, made after the murder, in which Greene boasted of killing his wife and described details of the crime. Id. at 86. Greene argued that the admission of the video violated Kentucky Rules of Evidence 403 and 404(b). Id. But the Supreme Court of Kentucky disagreed:

Evidence of criminal conduct other than that being tried is admissible only if probative of an issue independent of character or criminal predisposition, and only if its probative value on that issue outweighs the unfair prejudice with respect to character.
* * *
Greene contends that the rap video is simply character evidence introduced to prove a "criminal disposition." Greene, however, misapplies the character evidence standard. Evidence of prior arrests, convictions, or bad acts is excluded not because they are not relevant, but rather because the probative value of the character evidence is substantially outweighed by the prejudicial effect. Here, that is not the case because (a) the video refers to Greene's actions and emotions regarding this crime, not a previous offense, (b) the video sheds light on Greene's . . . mental state shortly after the killing, and (c) the video ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.