Circuit Court for Anne Arundel County Case No.
C.J., Kehoe, Reed, JJ.
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?
our answer to each of these questions is no, we will affirm
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
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.
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.
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.
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.
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.
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.
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.
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
You getting picked up by the ambulance / You could
be dead on the spot / I'll be on your ass.
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?"
contends that the trial court erred in admitting the
recording of these rap lyrics for two reasons. First, relying
upon Md. Rule 5-402,  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.
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.
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.
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,
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.
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
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),  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.
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.
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. 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.
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.
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.
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
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