Lanez cites driver's new statement in appellate petition as Megan says, 'Read a real journalist'
Tory Lanez has filed a 45-page habeas petition seeking re-sentencing that includes a statement from his former bodyguard and driver, who did not testify in his trial.
Citing new statements from his driver, rapper Tory Lanez’s lawyers are asking an appellate court to vacate his 10-year prison sentence for shooting Megan Thee Stallion in the feet and injuring her three years ago.
Jauquan Smith said in a sworn statement filed this week that he didn’t see who fired the gun the morning Megan was shot in July 2020 but saw Lanez, legal name Daystar Peterson, trying to take the gun from Megan’s then-friend Kelsey Harris before shots rang out.
“Mr. Peterson and Ms. Harris began struggling as Mr. Peterson tried to unarm Ms. Harris. I was still pulling Ms. Pete and did not see who shot the weapon,” according to the 15-paragraph statement Smith signed and dated December 5. Smith said he feels “lucky I was not harmed” and believes Megan, who had bullet fragments lodged in both feet, “was also fortunate.”
Smith did not testify in Lanez’s December 2022 trial in Los Angeles. He appeared at the courthouse wanting to testify as a defense witness, but prosecutors asked for time to prepare for his unexpected testimony, and Lanez’s trial lawyer “stipulated that Smith was not going to be summoned, as the holidays were approaching and they feared that delaying the trial could cause a mistrial.”
Lanez’s new lawyers filed Smith’s statement Tuesday with an appellate petition that seeks his re-sentencing or, in the alternative, an evidentiary hearing on the arguments raised.
“It was only through recent efforts that Petitioner himself learned what Smith wished to convey, and obtained the verified statement,” according to the 48-page petition from Crystal Morgan and Michael Hayden of Unite the People, a Long Beach-based organization that provides legal services for incarcerated people and of which Lanez was a board member and big financial supporter.
The petition also argues other factors support Lanez’s re-sentencing, including his “childhood trauma,” which the sentencing judge considered but his new lawyers argue should be reconsidered by the appellate court. It also argues his status as a non-United States citizen now facing deportation shouldn’t have been considered because doing so discriminates against his Canadian origins.
The filing and accompanying online hoopla prompted a rare reply from Megan, who said in a live Instagram video Wednesday that Lanez’s team “is getting denied every time they set a motion for new trial, so they trying to pull shit out the air like, ‘OK, let’s do this now.’”
She implored her critics to “read a real article.”
“Like, go read something that’s gonna take you a minute to sit down and have a good read. Like, go read something that’s gonna make you have to do some critical thinking, not a thing that is curated by bots and blogs that hate me. Like, y’all need to sit down and have a good read,” Megan said.
“Read something from a real journalist. The big font with the bold background? Don’t read it. Like, people can pay for a headline. People can buy bots. I don’t give a f*** what you motherf******* make trend,” she continued.
Megan’s comments appear to be her first public statements about her case since she testified in Lanez’s trial one year ago today, besides an interview with Elle that published in April.
She said she’s benefited from therapy and is “trying to move on from being shot the best I can.”
“I still wake up in the middle of the night crying. People, especially people I used to be cool with, they know how bad social media affect me. I would get online and see people say some terrible shit and I would be like, Oh my God everybody hates it’s over!”
She also said she’s made huge strides in 2023 and “would really appreciate if everybody would let me heal in peace, would let me move on.”
“Please, people. Don’t make me have to get on here and keep trying to defend myself against silly shit. If you're not going to read just don't talk about me,” she continued. “Like, if you’re not going to read, if you’re not going to take the time to actually, like, understand what's going on … don’t talk about me. Because I like intelligent people. I could argue with an intelligent mother******, but I cannot argue with no damn fool.”
Lanez’s petition cites a new California law that loosens the standards for how newly discovered statements such as Smith’s are to be considered in post-conviction proceedings.
Previously, petitions such as Lanez’s couldn’t be based on evidence that could have been discovered before trial ended. Senate Bill 97, signed by Gov. Gavin Newsom in October, changed the law to allow such evidence so long as it is “presented without substantial delay” and “more likely than not would have changed the outcome of the case.”
The petition doesn’t explain why Smith’s would-be testimony wasn’t raised during Lanez’s motion for new trial, which was handled by lawyers Lanez hired after trial who criticized the performance of his trial counsel, George Mgdesyan, and his pre-trial counsel, Shawn Holley.
The attorneys, Matthew Barhoma of Los Angeles and prominent criminal defense lawyer Jose Baez of Miami, Florida, never questioned why Smith didn’t testify, instead of raising other issues such as the admissibility of an Instagram comment prosecutors disclosed as evidence after trial began and the judge’s decision that Lanez could be questioned about his lyrics related to the shooting if he testified, which he didn’t.
Los Angeles County Superior Court Judge David Herriford said the arguments were meritless and even if they weren’t, any errors would be harmless errors that wouldn’t have changed the verdict had they not occurred.
Smith is not the first witness to say Megan and Kelsey were fighting before Megan was shot. Hollywood Hills homeowner Sean Kelly testified he saw two women violently fighting by a vehicle from his balcony after he awoke to noise around the time of the shooting on July 12, 2020.
“They were pulling their hair and hitting each other. It was quite violent,” Kelly said.
But unlike Smith, Kelly didn’t say he doens’t know who fired the shots. Instead, Kelly testified that while the flashes he saw started with “the girl,” Lanez — he called him “the smallest individual” — was “firing everywhere” and unleashed a “torrent of abuse” at a woman on the ground. Kelly also estimated Lanez fired “four or five shots;” prosecutors say it was five total.
Kelly wasn’t the only eyewitness who implicated Lanez in trial. Megan also identified Lanez as the gunman in her testimony, which she reiterated in her Instagram video on Wednesday.
“I know who shot me. I said who shot me, and that’s why the f*** you in jail,” she said.
Megan also said Wednesday that Harris didn’t shoot her and must have been bribed or currently fearful for her life because she won’t publicly defend herself after being angry with Megan for not publicly defending her shortly after the shooting. (Deputy District Attorney Alex Bott has publicly said Lanez tried to bribe Harris; he and Deputy District Attorney Kathy Ta tried to add a witness intimidation charge during trial but Judge Herriford wouldn’t allow it.)
Harris testified in trial under immunity after involving her 5th Amendment right against self-incrimination, but she did not identify Lanez as the shooter. Instead, she said she never saw Lanez with a gun and said she made false statements to prosecutors in an interview before trial in which she clearly identified Lanez and talked about him assaulting her, too.
Jurors ended up hearing the entire 80-minute interview uninterrupted after Lanez’s lawyer implied in his cross-examination of Harris that prosecutors unduly pressured her during it.
Here’s the recording:
Petition cites six California criminal reform laws
The new petition with Smith’s statement was filed with the Second District Court of Appeal, Division 3, in Los Angeles.
On Thursday, a three-judge panel said the petition will be considered at the same time as Lanez’s pending appellate case. An opening brief in that case currently is due Dec. 26. The order directed the state Attorney General’s Office to respond to the habeas petition, just as they will the appellate brief once it’s filed.
This means the court likely won’t rule on the petition for at least a few months. It could take a few months just for the Attorney General’s Office to file its brief.
Depending on how the court rules, proceedings such as an evidentiary hearing could be sent to Judge Herriford, who in August sentenced Lanez to 10 years in prison and called his post-conviction conduct, including his online harassment of Megan, as a “major” aggravating factor.
Lanez, 31, was credited for his time in county jail post conviction and on house arrest before trial. He’s currently incarcerated at the California Correctional Institution in Tehachapi, about 100 miles north of Los Angeles. He’s eligible for parole in September 2029.
His new petition seeks a writ of habeas corpus, which is separate from the appellate case that Lanez’s lawyer filed in August. Habeas petitions can be raised at any time, including long after an appeal is rejected. Lanez’s hinges on Smith’s new statement and also laws his attorneys argue should apply to Lanez’s case.
In addition to Senate Bill 97, the laws are:
Assembly Bill 518: Passed in 2021, the bill ended a requirement that a crime eligible for different punishments “be punished under the law that provides for the longest possible term of imprisonment.”
Lanez was sentenced to six years in prison for first-degree assault with a firearm, with a four-year enhancement, then two years for negligent discharge of a firearm and two years for possession of an unregistered firearm.
Count 2 was applied concurrently and count 3 was stayed, but the petition argues count 2 should have been stayed under Assembly Bill 518. That would not change Lanez’s sentence of 10 years. But the petition also says Lanez deserves to be sentenced not for his assault with a firearm charge but for one of the lesser gun charges, which, if done, would reduce his sentence.
Assembly Bill 124: Passed in 2021, the bill calls for a court to impose the lowest prison sentence possible “if a person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence,” according to the petition.
Judges still can sentence to a higher term if they believe aggravating circumstances outweigh the mitigating circumstances, which is what Judge Herriford did in Lanez’s case. Lanez’s habeas petition repeats an argument Barhoma, Baez and Newport Beach lawyer T. Edward Welbourn made during Lanez’s two-day sentencing hearing in August that he deserved a lesser sentence because he has post-traumatic stress disorder from the death of his mother when he was 11.
“Arguably, this path ultimately led Petitioner to the incident at hand, and should be considered when analyzing the possible culpability of his actions,” the petition says. “Due to Petitioner’s childhood history growing up without his mother in Canada, he connected with Pete, and they continued to consume alcohol as a way to cope with their trauma. They were both, along with Harris, in an intoxicated state the night of the incident in question, which led to poor decision making, and created this volatile, solitary, incident.”
Senate Bill 620: Enacted in 2017, the bill ended mandatory gun enhancements, giving judges discretion to dismiss. Lanez’s petition acknowledges that the law doesn’t allow him to seek formal relief, but he “may invite the court to exercise such discretion, in the interests of justice,” and he’s doing so now.
The petition cites Lanez’s childhood trauma and post-traumatic stress disorder and says he’s “not an impact to public safety, as he not only has a high likelihood of rehabilitation, but moreover he continues to urge that this was an isolated event.”
“The lack of impact to public safety in regards to Petitioner was shown through the numerous letters of support that was introduced in Petitioner’s sentencing hearing on August 8, 2023, which outlined Petitioner’s philanthropy within many communities for various charitable causes,” according to the petition,” according to the petition, which adds that the enhancements result “in a discriminatory racial impact.”
Assembly Bill 256: Passed in 2023, the bill changed the California Racial Justice Act to allow for post-sentencing proceedings to consider discrimination a defendant faced in his case based on race or national origin.
The petitions argues it applies to Lanez because of his Canadian citizenship.
“In Petitioner’s underlying trial, it was found that one of the reasons to deny him bail pending appeal, was that he was an immigrant, and facing possible immigration issues. It is just such considerations, which the RJA was enacted to prevent,” according to the petition.
The petition also cites historical racial discrimination within the Los Angeles Police Department and asks for an evidentiary hearing on the enhancement imposed by Judge Herriford.
Lanez “is facing a longer sentence than those that are similarly situated in facts and law, but in contrast with Petitioner in regard to race and celebrity status,” the petition says.
Senate Bill 467: Enacted in 2015, the bill expanded California’s definition of false evidence to include repudiated forensic or scientific evidence.
The petition argues the eight-year-old law should apply to the DNA evidence submitted in trial, which Lanez’s new lawyers say should have clearly excluded Lanez as a contributor.
Lanez’s own DNA expert, however, testified to the same results as the prosecution’s expert, which was that Lanez could neither be included or excluded as a contributor to DNA on the gun, and he was excluded as a contributor to DNA on the gun’s magazine. Lanez’s own expert supported the testimony but added he would expect anyone who fired a gun five times to leave clearly identifiable DNA behind.
One person contributed 90 percent of the sample, which provided enough for a Los Angeles police criminologist to determine the person must be a male. It also was enough to compare it with Lanez’s DNA sample and exclude him as the male who contributed that specific DNA.
But the three other discernible types of DNA accounted for just 5 percent, 3 percent and 2 percent of the sample, so the criminologist testified he couldn’t determine the gender of the contributors, nor was there enough to compare with Lanez’s DNA sample. Thus, it’s impossible to determine if Lanez was or wasn’t a contributor to either of the three.
Investigators never took a DNA sample from Smith or Harris.
Lanez’s trial defense, however, clearly argued Harris was the shooter, not Smith, who never testified. Based on the DNA sample on the gun, Harris would be excluded from the male DNA that accounted for 90 percent of the profile and likely would be in the same situation as Lanez regarding the other three profiles of 5 percent, 3 percent and 2 percent: Neither included or excluded. (Emails show Lanez replaced Holley with Mgdesyan as his trial counsel after she told him she didn’t believe blaming Harris for the shooting was a viable strategy.)
‘It seems unlikely the Court would accept this’
Los Angeles attorney David Zarmi, a certified appellate specialist who is not involved in the case, reviewed the petition for Legal Affairs and Trials and said only the argument regarding Smith’s “would be a legitimate habeas argument in that it would require a habeas petition because it alleges newly discovered evidence.”
“This would ordinarily be an ineffective assistance of counsel argument, which they don’t raise in a way that the Court would consider it, and which would normally be accompanied by a declaration for trial counsel describing his motives,” Zarmi said in an email.
“They are being creative by arguing that because nobody bothered to check what Smith’s testimony would be before trial counsel stipulated that Smith would not testify,” Zarmi continued. “However, there is no declaration attached to indicate that trial counsel did not know what Smith’s testimony would be. Nor is there even a declaration from the defendant. It seems unlikely the Court would accept this.”
He also said Smith’s statement “does not seem exculpatory” but the appellate court could send the case back to the trial court for consideration.
“In really rare instances, the Court will even do that itself, but it will more likely remand for an evidentiary hearing. That would happen in the unlikely event that the Court wanted to hear more about what Smith could testify to,” Zarmi said.
He called the other arguments “normal appellate arguments that don’t seem to belong in habeas.”
The petition says an opening brief is “forthcoming,” which references Lanez’s accompanying appellate court. The current due date for the brief is Dec. 26.
Zarmi said filing a habeas petition while an appeal is pending is “definitely better because the Court will often consider the habeas at the same time, consolidating the two into a single opinion.”
“When a habeas petition is filed alone after the appeal, you won’t get an opinion. It's hard to know how much difference it makes in practical outcome, but people like to see opinions because it makes them feel heard,” Zarmi said.
Meanwhile, Megan implored her fans — she calls them “hotties” — to look ahead to 2024.
“When you’re trying to heal and you’re trying to figure out ‘Why the f*** are these people bothering me?’, it’s because you’re outgrowing them,” Megan said. “It’s because you were meant to go somewhere higher in life. You was meant to outgrow them, and growth is uncomfortable. Change is uncomfortable.”
Past coverage:
You can find PDFs of all my Twitter threads from the trial here.
I’ve got links to all my previous articles here. All post-conviction coverage on this website is paywalled, meaning it’s available to paid subscribers only, just like all other articles are paywalled after one month. Please consider purchasing a subscription to support my work.
Trial transcripts:
Here are the transcripts that have been posted online. The new trial hearing transcript was obtained as an exhibit in an appellate court file. At least one of the Harris transcripts was distributed by Jose Baez’s law firm.
Two-day hearing in May on Lanez’s motion for new trial
Megan Thee Stallion’s full trial testimony on Dec. 13, 2022
Day 1 of Kelsey Harris’ trial testimony on Dec. 14, 2022
Day 2 of Harris’ testimony on Dec. 15, 2022
Coming up:
Happy holidays. As we approach the one-year anniversary of the verdict, I’m planning another YouTube live in which I read my Twitter threads from the trial aloud. Stay tuned and please subscribe to my YouTube channel.
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