Hannah v. State

*358Concurring Opinion by HARRELL, J.

I agree with the Majority opinion that the State’s multitudinous questioning as to all ten rap lyrics about guns and violence was more prejudicial than probative. I write separately because I wish to distance myself from any intimation by the Majority that rap lyrics generally are admissible only if they constitute an admission of guilt, or in the Majority opinion’s words, an “autobiographical statement ] of historical fact____” Majority op. at 349, 23 A.3d at 197. I disagree further with the Majority opinion’s conclusion that, in the present case, the rap lyrics “had no tendency to prove any issue other than the issue of whether Petitioner was a violent thug with a propensity to commit the crimes for which he was on trial.” Majority op. at 357, 23 A.3d at 202. As part of his defense to the charge of murder by handgun, Petitioner suggested on direct examination, and then stated outright in cross-examination, that he was a naif when it comes to knowledge of or interest in guns. Under well-established principles of federal and state evidence law, the State was entitled to use a portion of the now-relevant rap lyrics to (1) challenge that defense and to (2) attack the credibility of the witness, i.e., Petitioner, through impeachment.

With respect to the introduction of the rap lyrics for substantive rebuttal purposes, Johnson v. State, 408 Md. 204, 226, 969 A.2d 262, 275 (2009), states, “It is well settled that ‘[a]ny competent evidence which explains, or is a direct reply to, or a contradiction of, material evidence introduced by the accused may be produced by the prosecution in rebuttal.’ ” (Citing Lane v. State, 226 Md. 81, 90, 172 A.2d 400, 404 (1961)). Stated another way, “when the defense ‘opened the door,’ the prosecution is entitled to a fair response.” Lupfer v. State, 420 Md. 111, 21 A.3d 1080 (2011) (2011) (Majority op. at 134, 23 A.3d at 1093-94).

With respect to the introduction of the lyrics for impeachment purposes, Maryland Rule 5-616(a)(l)-(3) states:

(a) The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at:
*359(1) Proving under Rule 5-613 that the witness has made statements that are inconsistent with the witness’s present testimony;
(2) Proving that the facts are not as testified to by the witness;
(3) Proving that an opinion expressed by the witness is not held by the witness or is otherwise not worthy of belief;

The only limitation on these rules is that evidence should be excluded where the danger of prejudice outweighs the probative nature of the testimony. See Terry v. State, 332 Md. 329, 334, 631 A.2d 424, 426 (1993). Therefore, the trial judge must strike a balance between the probative value and the prejudicial nature of a witness’s testimony when determining admissibility. See Ware v. State, 348 Md. 19, 68, 702 A.2d 699, 723 (1997). It was in discharging this duty that, on this record, the trial judge erred.

In the present case, Petitioner testified to a lack of knowledge or interest in guns. He denied ever possessing, holding, or firing a gun. When his attorney asked on direct examination if he knew the difference between a revolver and an automatic, Petitioner testified, “I believe they are both handguns.” During cross-examination, the following colloquy took place:

[State’s Attorney]: You are interested in [guns?]
[Petitioner]: No, ma’am.
[State’s Attorney]: Not at all?
[Petitioner]: I don’t have an interest in guns.
[State’s Attorney]: Did you ever write about guns?
[Petitioner]: I have wrote raps, like freestyles about them. Like not about them, but had been incorporated.

Following this testimony, the State’s Attorney propounded a series of questions asking if Petitioner was the author of rap lyrics about guns and a detailed and realistic drawing of a 9mm pistol found in Petitioner’s school notebook.

*360[State’s Attorney]: One, two three, shot ya ass just got drop. One of your lyrics?
[Petitioner]: I guess so.
[State’s Attorney]: Ya see da tinted cum down n out come da glock. Your lyrics?
[Petitioner]: Yes, ma’am.
[State’s Attorney]: What is a glock?
[Petitioner]: I can’t say. I know it’s a handgun.
[State’s Attorney]: Ya just got jacked, we leave da scene in da lime green. Your lyrics?
[Petitioner]: Yes, ma’am.
[State’s Attorney]: So you betta step ta me before I blow you off ya feet. Your lyrics?
[Petitioner] Yes. They’re the same—that’s a piece of paper. I assume it’s in the same book, I guess.

Contrary to the Majority opinion’s assertion, the State’s Attorney’s cross-examination had distinct probative value sounding in rebuttal and impeachment. Petitioner chose to assert, as part of his defense, that he had no knowledge of or interest in guns. The State was entitled to challenge this defense “through questions” and, in the process, “attack[]” the “credibility of a witness.... ” Rule 5-616. In particular, the State was permitted to question Petitioner (to a reasonable extent) about his rap lyrics and artwork in response to Petitioner’s ignorance defense. Regarding the credibility of the testifying witness, i.e., Petitioner, the rap lyrics: “[p]rov[ed]” (1) that “the witnesses previous statements] ... are inconsistent with the witness’s present testimony,” Rule 5-616(a); (2) that “the facts are not as testified to by the witness,” Rule 5—616(b); and (3) that “an opinion expressed by the witness is not held by the witness or is otherwise not worthy of belief....” Rule 5-616(c).

Stated another way, Petitioner alleged that he could not have committed the murder because he knew bupkis1 about *361guns. His “original” rap lyrics and artwork demonstrated, however, that Petitioner was interested enough in guns to reference them repeatedly in musical lyrics, to know that the term “glock” is shorthand for a handgun (specifically, a “Glock Safe Action Pistol”), and to invest some time sketching a detailed picture of a 9mm handgun. The Maryland Rules authorize the use of such evidence because it is highly probative—it helps juries evaluate the strength of a chosen defense as well as the credibility of a testifying witness. Therefore, the Majority opinion, it seems to me, is too eager to declare that rap lyrics are only admissible (as more probative than prejudicial) where they constitute an admission of guilt. Moreover, the Majority opinion is incorrect that, in the present case, the rap lyrics served only to evince Petitioner’s generally-violent nature. Thus, I am concerned that Bench and Bar may construe the Majority’s sweeping conclusions to limit improperly the future use of rap lyrics in criminal proceedings.

Understandably, the appearance of rap lyrics in transcripts of criminal trials is a fairly recent development. Nevertheless, this Court should be unafraid to apply firmly-rooted canons of evidence law, which have well-protected the balance between probative value and prejudice in other modes of communication. Undoubtedly, rap lyrics often convey a less than truthful accounting of the violent or criminal character of the performing artist or composer. When the defendant, however, elects to put forward a defense of ignorance on the witness stand, the State is entitled to use previous statements, including rap lyrics, to challenge the substantive truth of the defense as well as the credibility of the testifying witness.2 It is enough that a person states unequivocally a certain impor*362tant fact in defense at trial, but said something exactly contradictory out-of-court. That the contradicting statement is a rap lyric should not dictate the process or result of our analysis.

Most rap lyrics offered by the State likely will be prejudicial in some fashion to the defendant; the State would not offer them otherwise. There are certain circumstances, however, where the lyrics possess an inherent and overriding probative purpose. One circumstance would be where the lyrics constitute an admission of guilt, but others would include rebutting an offered defense and impeaching testimony. Although there is no definitive line that demarcates the amount or content of lyrics that may be used appropriately, reasonableness should govern. The distinction between whether rap lyrics are more probative than prejudicial is a determination for the trial judge in the first instance. This Court should not burden that decision with too broad limitations. Here, the prosecution went to the well too often and crossed the line into the overly prejudicial zone. A more discriminating use of selected lyrics and the drawing of the 9 mm handgun could have sufficed and survived appellate scrutiny, in my judgment.

. I believe that this is the Yiddish word for "nothing.”

. In the context of impeachment, we are not concerned, however, with the veracity of the impeaching statement. See Ali v. State, 314 Md. 295, 305, 550 A.2d 925, 930 (1988) ("[W]e conclude that the statements were admissible if offered solely for impeachment, i.e., to show that on a prior occasion the witness had uttered statements inconsistent with her present testimony. They were not, however, admissible if offered to prove the truth of the matter asserted in the statements.”).