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Montague v. State

Court of Special Appeals of Maryland

December 23, 2019

Lawrence Ervin MONTAGUE
v.
STATE of Maryland

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          Circuit Court for Anne Arundel County, Case No. 02-CR-17-000378, Paul F. Harris, Judge

         Argued by: Ryan Travers (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

         Argued by: Peter Robins Naugle (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD. for Appellee.

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

          OPINION

         Kehoe, J.

         [244 Md.App. 35] 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?

         [244 Md.App. 36] 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, 951 A.2d 885 (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

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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 [244 Md.App. 37] 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, [244 Md.App. 38] 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 /

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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 [244 Md.App. 39] value is substantially outweighed by the danger of unfair prejudice." He relies primarily upon Hannah v. State, 420 Md. 339, 343-44, 348, 23 A.3d 192 (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, 907 A.2d 175 (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 ...


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