By Robert C. Bonsib, Esq.
Lawyers regularly advise clients who are detained pending trial to avoid “talking” about their cases on jail phones out of concern that such conversations – which are almost uniformly recorded – will provide incriminating evidence that the prosecution will present during their trials. Now – not only do we have to caution clients about “talking” about their cases – but after the Court of Special Appeals (CSA) opinion in State v. Montague (No. 2033, Sept. Term 2017, 12/19/2019) lawyers should also warn their clients about the dangers of “rapping” during their jail calls (or in other forums, such as social media platforms).
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.
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 are the lyrics quoted in the Court’s opinion that provided the musical path to Montague’s fifty year sentence:
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 was soon to learn the answer to that question. First, when the trial court permitted the rap lyrics to be used in his trial. Second, when the CSA upheld the trial court’s admission of the lyrics and affirmed his conviction and his fifty-year sentence
The CSA noted that where there is absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced such lyrics would amount to little more than bad-acts evidence used for forbidden propensity purposes and risked unduly prejudicing the jury without much, if any, probative value. The CSA reviewed why, in Montague’s case, the lyrics were properly admitted as probative evidence that was not unduly prejudicial.
The CSA reviewed a Nevada case where such evidence was deemed to have been properly admitted. In Holmes v. State, 306 P.3d 415 (Nev. 2013) Holmes had been charged with robbery and murder. The evidence showed that the perpetrators wore masks, turned out the victim’s pockets, and tore a necklace from the victim’s throat. At Holmes’s trial, the prosecution introduced lyrics from a rap song Holmes had written while in a California jail, awaiting extradition to Nevada. Those lyrics described a robbery in which all three of the above listed events occurred. The trial court admitted the lyrics because, it determined, a jury “could reasonably view the lyrics as factual, not fictional.” These “factual” lyrics-a statement by a party opponent, excepted from the general bar on hearsay evidence-“tended to prove [Holmes’s] involvement in the charged robbery.” The trial court acknowledged that “admitting gangsta rap carries the risk of it being misunderstood or misused as criminal propensity or ‘bad act’ evidence” but it determined the probative value of the lyrics was not substantially outweighed by the danger of unfair prejudice. The Nevada Court explained:
“We recognize, as did the district court, that defendant-authored rap lyrics may employ metaphor, exaggeration, and other artistic devices, and can involve “abstract representations of events or ubiquitous storylines.” But these features do not exempt such writings from jury consideration where, as here, the lyrics describe details that mirror the crime charged. It is one thing to exclude defendant-authored fictional accounts, be they rap lyrics or some other form of artistic expression, when offered to show a propensity forviolence. . . . It is quite another when the defendant-authored writing incorporates details of the crime charged.”
The CSA observed that although the facts and the outcomes of court decisions differ, there is a convergence in the analyses of the various courts. The appellate courts recognize that while there is a real danger of unfair prejudice by the introduction of rap lyrics that have been composed by a criminal defendant (“The admission of [a] defendant’s inflammatory rap verses, a genre that certain members of society view as art and other view as distasteful and descriptive of a mean-spirited culture, risk[s] poisoning the jury against defendant.”) such lyrics may be relevant. But if the lyrics to be introduced are “insufficiently tethered to the charged crime,” their probative value is lowered and overcome by the danger of unfair prejudice that they present to the defendant composer. When they contain “only general references glorifying violence,” the lyrics’ “minimal probative value . . . is far outweighed by [their] unfair prejudicial impact as evidence of [the defendant’s] bad character, i.e. his propensity for violence in general.”
On the other hand, when the prosecution can demonstrate “a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced,” the probative value of defendant-composed rap lyrics increases. The lyrics do not simply suggest a bad character-a propensity to engage in the criminal conduct charged. Rather, they operate as “direct proof” of the defendant’s criminal conduct. When the lyrics “describe details that mirror the crime charged,” a jury can “reasonably view the lyrics as factual, not fictional,” and treat them as any other admission or confession that tends to prove the defendant’s wrongdoing. A strong temporal nexus may also boost the probative value of the lyrics. Rap lyrics composed after the crimes in question were committed may be stronger evidence of intent, motive or participation in the crime than lyrics composed years earlier.
Applying the principles outlined above, the CSA concluded there was a strong nexus between the content of Montague’s rap and the circumstances of Mr. Forrester’s murder. In his rap, Montague indicated that, if cheated (“played”), he would exact immediate retribution (“if a n—a’ ever play / Treat his head like a target / You know he’s dead today”). Mr. Forrester “played” Montague by handing him a fake $100 bill in exchange for drugs, and shortly thereafter he was shot to death. Montague’s rap referred to .40-caliber bullets. Forensics investigators found .40-caliber shell casings at the scene of the shooting. The rap contained references to a pickup truck. Forrester arrived at the Woodside Gardens apartment complex in a pickup. Finally, Montague said that those who “played” him would be “picked up by the ambulance.” That is exactly what happed to Mr. Forrester and “the lyrics describe details that mirror the crime charged.”
The timing of the composition also supports an inference that Montague’s rap described actual events. Mr. Forrester was murdered on January 16, 2017. Montague recited his rap on October 7, 2017, while was incarcerated and awaiting trial for Forrester’s murder. The rap was not composed months or years before the shooting occurred but rather after the crime took place.
The lyrics admitted here alluded to details of the crime and explained Montague’s possible motive for the murder. They tended to make it more probable that Montague was Mr. Forrester’s killer and were properly admitted at his trial