Montague v. State

Lawrence Ervin Montague v. State of Maryland, No. 2033, September Term 2017 Opinion by Kehoe, J. EVIDENCE — RELEVANCY AND ITS LIMITS — RELATIONSHIP BETWEEN RULES The rule on character evidence and other special relevancy rules (for habits, subsequent remedial measures, compromise offers, payment of medical expenses, etc.) are just particularized applications of the balancing-test notion of Md. Rule 5-403. EVIDENCE — FACTORS AFFECTING ADMISSIBILITY — PREJUDICIAL EFFECT AND PROBATIVE VALUE OF RAP LYRICS Rap lyrics composed by a criminal defendant may be relevant and, as statements against interest or statements by a party opponent, may overcome the hurdle to the admission of hearsay. But if the lyrics 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. Md. Rules 5-403, 5-404.

EVIDENCE — FACTORS AFFECTING ADMISSIBILITY — PREJUDICIAL EFFECT AND PROBATIVE VALUE OF RAP LYRICS When lyrics contain only general references glorifying violence, their minimal probative value is far outweighed by their unfair prejudicial impact as evidence of the defendant’s bad character or propensity for violence in general. Md. Rules 5-403, 5-404. EVIDENCE — FACTORS AFFECTING ADMISSIBILITY — PREJUDICIAL EFFECT AND PROBATIVE VALUE OF RAP LYRICS When the prosecution can demonstrate a strong nexus between specific details of the composition and the circumstances of the offense, the probative value of defendant- composed rap lyrics increases. The lyrics do not simply suggest a bad character or a propensity to engage in the criminal conduct charged.

Rather, they operate as direct proof of the defendant’s criminal conduct—an admission or a confession that tends to prove the defendant’s wrongdoing. Md. Rules 5-403, 5-404. EVIDENCE — FACTORS AFFECTING ADMISSIBILITY — PREJUDICIAL EFFECT AND PROBATIVE VALUE OF RAP LYRICS A strong temporal nexus may also boost the probative value of rap lyrics. Lyrics composed after the crime was committed may be stronger evidence of intent, motive or participation in the crime than lyrics composed years earlier.

Md. Rules 5-403, 5-404. Circuit Court for Anne Arundel County Case No. 02-CR-17-000378 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2033 September Term, 2017 ______________________________________ LAWRENCE ERVIN MONTAGUE v. STATE OF MARYLAND ______________________________________ Fader, C.J., Kehoe, Reed, JJ. ______________________________________ Opinion by Kehoe, J. ______________________________________ Filed: December 23, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-12-31 15:24-05:00 Suzanne C. Johnson, Clerk 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. -2- 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): -3- 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. 1 Md. Rule 5-402 states that “[e]xcept as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible.

Evidence that is not relevant is not admissible.” -4- 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 -5- 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 2 For a comprehensive collection of relevant cases, see Jason B. Binimow, Annotation, Admissibility of Rap Lyrics or Videos in Criminal Prosecutions, 43 A.L.R.7th Art. 1 (2019). -6- 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 3 The language of Md. Rule 5-404(b) largely mirrors that of its New Jersey counterpart and of Fed. R. Evid. 404.

The Maryland rule states in relevant part: Evidence of other crimes, wrongs, or other acts . . . is not admissible to prove the character of a person in order to show action in the conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident, or in conformity with Rule 5-413. -7- 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 4 This is consistent with how we understand the relationship between Md. Rule 5-403 and other relevancy rules, like Md. Rule 5-404. The rule on character evidence and other special relevancy rules (for habits, subsequent remedial measures, compromise offers, payment of medical expenses, etc.) are just “particularized applications of the balancing test notion of Rule 403.” Norman M. Garland, An Overview of Relevance and Hearsay, 22 Sw. U. L. Rev. 1039 , 1047 (1993); see also 5 Lynn McLain, Maryland Evidence State and Federal §403:1 (3d ed. 2013) (“Md. Rule 5-403 is, at bottom, a general summary of the considerations that went into formulating the more specific rules of exclusion . . . .”); 1 McCormick on Evid. § 185 (7th ed. 2016) (“In certain areas, such as proof of character, comparable situations recur so often that relatively particularized rules channel the exercise of discretion.”). -8- 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): -9- 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 establishes premeditation and motive in Greene’s own - 10 - words. For the foregoing reasons, we affirm the trial court’s admission of the rap video montage. 197 S.W.3d at 87 (cleaned up). The Supreme Court of Nevada similarly affirmed the admission of rap lyrics in Holmes v. State, 306 P.3d 415 (Nev. 2013).

In that case, 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. Id. at 417 . At Holmes’s trial, the prosecution introduced lyrics from a rap song Holmes had written while in a California jail, awaiting extradition to Nevada.

Id. at 418 . Those lyrics described a robbery in which all three of the above listed events occurred. Id. The trial court admitted the lyrics because, it determined, a jury “could reasonably view the lyrics as factual, not fictional.” Id.

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.” Id. The trial court acknowledged that “admitting gangsta rap carries the risk of it being misunderstood or misused as criminal propensity or ‘bad act’ evidence.” Id. But it determined the probative value of the lyrics was not substantially outweighed by the danger of unfair prejudice. Id.

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 for - 11 - violence. . . . It is quite another when the defendant-authored writing incorporates details of the crime charged. Id. at 419 (cleaned up and emphasis added).5 Although the facts and the outcomes of these decisions differ, there is a convergence in the analyses of the various courts.

The appellate courts recognize that there is a real danger of unfair prejudice by the introduction of rap lyrics that have been composed by a criminal defendant. See, e.g., Skinner, 95 A.3d at 238 (“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—otherwise, analyzing their admissibility using Rule 5-403 balancing would be a meaningless exercise. See Md. Rule 5-402 (“Evidence that is not relevant is not admissible.”).

And as statements against interest or statements by a party opponent, they may overcome the hurdle to the admission of hearsay. But if the lyrics to be introduced are “insufficiently tethered to the charged crime,” Skinner, 95 A.3d at 253 , 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 5 Other courts have concluded that rap-lyric evidence was admissible based upon similar facts. See United States v. Recio, 884 F.3d 230, 235 (4th Cir. 2018); United States v. Moore, 639 F.3d 443 , 447–48 (8th Cir. 2011); United States v. Belfast, 611 F.3d 783 , 819–20 (11th Cir. 2010); United States v. Foster, 939 F.2d 445, 456 (7th Cir. 1991); Cook v. State, 45 S.W.3d 820 , 822–23 (Ark. 2001); Taylor v. State, 76 A.3d 791, 802 (Del. 2013); Tann v. United States, 127 A.3d 400 , 468–69 (D.C. 2015); Taylor v. State, 772 S.E.2d 630 , 633–34 (Ga. 2015); Bryant v. State, 802 N.E.2d 486, 489 (Ind.

App. 2004); People v. Hayes, 168 A. D. 3d 489, 91 N.Y.S. 3d (N.Y. App. Div. 2019). - 12 - 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.” Cheeseboro, 552 S.E.2d at 313 . 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,” Skinner, 95 A.3d at 251–52, 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.

Id. at 249 n.5. 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. Holmes, 306 P.3d at 418 ; see also Skinner, 95 A.3d at 249 n.5 (“A jury need not be shielded from a defendant’s confession simply because it is conveyed in a rap or other artistic setting.” (emphasis added)). 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. Compare, e.g., Greene, 197 S.W.3d at 86–87, with Skinner, 95 A.3d at 503, 520 . This analytical framework is consistent with the Court’s analysis in Hannah, 420 Md. 339 , Maryland’s only reported case on the admissibility of rap lyrics. As we noted above, the admissibility determination in Hannah was made in a different trial context.

The - 13 - defendant had been charged with, and convicted of, the attempted murder of his ex- girlfriend’s new boyfriend. 420 Md. at 340 . Hannah took the stand in his defense and on direct examination testified that he had never owned, held, or fired a handgun, that he had no interest in guns, and that he would not know how to go about acquiring one. Id. at 342– 43. To impeach Hannah, and not to provide substantive evidence of his guilt, the prosecutor cross-examined Hannah about violent lyrics he’d written in a notebook about two years before the shooting occurred Id. at 345–46.6 The trial court permitted this line of questioning over defense counsel’s objection.

Id. at 344 . The question before the Court of Appeals was whether the trial court had abused its discretion by permitting a cross-examination that was “harassing, unfairly prejudicial, confusing or unduly repetitive.” Id. at 347 (citing Marshall v. State, 346 Md. 186, 193 (1997)). After reviewing many of the cases we have explored in our analysis, the Court held that allowing the prosecutor to question Hannah about his lyrics was an abuse of discretion. Unlike the lyrics ruled admissible in some of the other cases above, Hannah’s lyrics were not “admissible autobiographical statements of historical fact,” but rather 6 The lyrics included: “One, two three, shot ya ass just got drop”; “I ain’t got guns, got a duz unda da seat”; “Ya see da tinted cum down n out come da glock”; “Ya just got jacked, we leave da scene in da lime green”; “So you betta step ta me before I blow you off ya feet”; “Bring da whole click, we put em permanently sleep”; “Wa you think, I ain’t got burners, got a duz unda da seat”; “Ya talk a bunch shit n ya sure. . . .

So pull your f----- trigga [n----] go pop, pop, one, two three shot ya ass jus got drop”; “I’ll put you in a funeral.” 420 Md. at 345–46 (emphasis omitted). The prosecutor confronted the defendant with each of these lyrics, one at a time, in an extended back and forth intended to contradict Hannah’s claimed ignorance about and disinterest in guns. - 14 - “inadmissible works of fiction.” Id. at 348. Hannah had thus been “unfairly prejudiced” by the cross-examination about these lyrics, because they “were probative of no issue other than the issue of whether he has a propensity for violence.” Id. at 355. Because the lyrics had no strong connection to the facts of the case before the court, their value as impeachment evidence was not worth the costs they exacted as bad-character evidence.

B. Applying the principles outlined above, we conclude 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.

Just as in Holmes, “the lyrics describe details that mirror the crime charged.” 129 Nev. at 572 . 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 he was incarcerated and awaiting trial for Mr. - 15 - Forrester’s murder.

The rap was not composed months or years before the shooting occurred, as in Skinner and Hannah, but rather after the crime took place, as in Greene and Holmes. 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. Therefore, the trial court did not err in concluding that the rap lyrics were relevant.

Nor can we conclude that the trial court abused its discretion in concluding that the probative value of the lyrics was not substantially outweighed by any unfair prejudice. This is because, despite their “incendiary nature,” the rap lyrics were strong evidence as to “why the defendant was the person who committed the particular crime charged.” Smith, 218 Md. App. at 705 . Because of their patent factual connection to the charged murder, these lyrics were far more than evidence of a bad character. Instead, they were properly viewed by the trial court as direct proof of Montague’s criminal wrongdoing, whose probative value was not substantially outweighed by any danger of unfair prejudice that their admission would entail. 2.

The pretrial photo identification Montague contends that the trial court erred when it denied his motion to suppress evidence of the pretrial photo identification in which Tasker identified him as the shooter. First, he argues that the photo array was impermissibly suggestive. In support of this contention, Montague notes that the shooter had been described as wearing black clothing - 16 - and that he was the only person wearing black clothing in the array shown to Tasker. He also notes that the police changed the photo array after another eyewitness to the shooting had been unable to identify the shooter.

In the first array, two of the men depicted in the photo were wearing black shirts, but in the second array—the array shown to Tasker—only Montague was wearing a black shirt. Second, Montague argues that the State cannot show that Tasker’s identification—the result of an allegedly impermissibly suggestive process—was nonetheless reliable. He asserts that Tasker “could only manage vague descriptions of the shooter after viewing him from afar during a frightening and stressful experience.” He also argues that Tasker’s perception was impaired because she had ingested cocaine earlier in the day. In response, the State asserts that the array was not impermissibly suggestive and that, in any event, Tasker’s identification of Montague was independently reliable.

We agree with the State that Tasker’s identification did not result from an impermissibly suggestive procedure. Accordingly, any concerns over the reliability of her would affect only the weight to be given to the identification by a jury and not its admissibility. A. We will first describe the circumstances surrounding Tasker’s identification of Montague as the shooter. The evidence presented at the suppression hearing consisted of the testimony of two witnesses, both City of Annapolis detectives, as well as an audio– - 17 - video recording of the interview in which Tasker identified Montague as the person who shot and killed Mr. Forrester.

Detective John Murphy was the lead detective on the investigation of Mr. Forrester’s murder. Murphy first described the way that photo arrays are prepared by the Annapolis Police Department. Arrays consist of six booking photographs taken within the last ten years. Murphy related that, with the assistance of a department computer program, called “In-Pursuit,” officers can identify photos for possible use in an array by specifying certain defined search parameters (e.g., race, skin tone, height and weight) in a database search.

Clothing color is not among the program’s search parameters. The In-Pursuit program typically identifies booking photographs of “anywhere from 50 to 1,000 persons” in response to a query. The officer then selects six photographs for the array. Murphy related that he identified Montague as a suspect within twenty-four hours of the shooting.

The police also identified two possible eyewitnesses, Tasker and DeShawn Caton. For that reason, he prepared two arrays. Each array included Montague’s most recent booking photograph as well as five other photographs selected by Murphy from the results of his In-Pursuit database search. He showed the first array to Caton.

This array featured two men (including Montague) wearing black shirts, three wearing white shirts, and one wearing a gray shirt. Caton was unable to identify the shooter. Murphy prepared a second array to show to Tasker. Preparing an alternate