Prosecutors respond to Tory Lanez's motion for new trial in the shooting of Megan Thee Stallion
A judge is scheduled to consider the rapper's new trial motion Monday in Los Angeles.
Los Angeles prosecutors say the evidence of rapper Tory Lanez’s guilt in the 2020 shooting of Megan Thee Stallion is “overwhelming” and his lawyers’ arguments that he deserves a new trial are baseless.
“The defendant’s brief is replete with colorful rhetoric and conclusory statements, but it lacks substance,” according to the 16-page opposition to Lanez’s motion for new trial. “Despite being nearly 80 pages long, the defendant has failed to cite a single instance of error in the trial court.”
Prosecutors say the evidence against Lanez includes “multiple eyewitnesses identifying him as the shooter, the gun used in the assault found at his feet, and recorded apologies for the shooting.”
Filed Thursday, the opposition emphasizes that Lanez’s trial lawyer didn’t object to the DNA evidence his new lawyers argue shouldn’t have been evidence in the trial. It calls the argument “perplexing” and another argument about Lanez’s change in counsel “inaccurate, misleading, and unethical.”
“As the court is aware, the right to a fair trial is a cornerstone of our justice system. However, a motion for a new trial must be based on substantial legal grounds and supported by evidence. It is not a vehicle for a litigant to reargue their case or to make vague and unsupported allegations,” according to the filing, which is signed by Deputy District Attorney Alexander Bott.
Los Angeles County Superior Court Judge David J. Herriford is scheduled to consider Lanez’s new trial request Monday at 10:30 a.m. Lanez was to be sentenced that day if Herriford rejects the motion, but the sentencing is now expected to be delayed to late April or early May.
Lanez has been in jail without bond since a jury on Dec. 23 convicted him of felony assault with a semi-automatic firearm, discharge of a firearm with gross negligence and having a concealed and unregistered firearm in a vehicle for firing five rounds at Megan in a residential area after they left a gathering at reality star Kylie Jenner’s Hollywood Hills home early on July 12, 2020. Jurors also determined he caused Megan great bodily harm.
In addition to the DNA argument, Lanez’s March 29 motion for new trial argues Judge Herriford errored by allowing prosecutors to use as evidence an Instagram comment, by allowing the jury to hear key witness Kelsey Harris’ 80-minute pre-trial interview and by allowing prosecutors to question Lanez about some of his songs if he testified, which he did not.
It also argues Lanez’s AK-47 chest tattoo shouldn’t have been shown to the jury because it is a creative expression, and it argues prosecutors interfered with Lanez’s 6th Amendment right to counsel through a bribery allegation against his original lawyer, Shawn Holley of Kinsella Weitzman Iser Kump Holley LLP in Los Angeles.
Each argument fails, prosecutors say, but the argument about Holley is the most unethical.
Lanez’s post-trial lawyers, Jose Baez in Miami and Matthew Barhoma in Los Angeles, didn’t include a declaration from Holley with their motion. However, Bott and Deputy District Attorney Kathy Ta included with their opposition a Jan. 10 letter in which Holley told Judge Herriford she was consenting to lawyer David Kenner taking over Lanez’s defense.
“As the Court is aware, I did not appear at Mr. Peterson’s trial due to my engagement in an arbitration out of state which began in May and did not conclude until December 16, 2022,” Holley wrote, referring to Lanez’s legal name, Daystar Peterson. “Mr. Peterson understood and agreed that George Mgdesyan would represent him at trial and that I would not.”
Holley said nothing about the bribery allegations, and prosecutors say Lanez’s claims that she left the case because of them “are false and an intentional misrepresentation to the court.” They also say the argument that they violated the 6th Amendment by eliciting testimony from Harris about Lanez mentioning Holley when trying to bribe her is “inaccurate, misleading, and unethical.” They point out that Mgdesyan didn’t object when Harris mentioned Holley in testimony.
Prosecutors cite lack of defense objections in trial
Mgdesyan’s lack of trial-time objections is a common theme in the filing, including his lack of objection regarding the DNA evidence that Lanez’s motion argues was improperly admitted.
Not only did Mgdesyan not object to the DNA evidence and related expert testimony, he “sought the admission of this exact same evidence at trial,” according to Bott and Ta’s opposition, which calls the DNA argument “baseless and perplexing.”
“The testimony was relevant and admissible, and the fact that the defendant failed to object at trial waives any defect on appeal,” the filing says.
Mgdesyan did object to the admittance of the Instagram comment that Lanez’s new lawyers argue never should have been seen by the jury.
The comment was from Lanez’s verified account, and it said “that’s not true” in reply to someone saying people were alleging Harris fired the shots that injured Megan’s feet on July 12, 2020. Prosecutors didn’t disclose it to Lanez’s attorneys until Dec. 13, 2022, one day after the trial began, saying it was relevant because it contradict’s Lanez defense that Harris was the shooter.
Lanez’s motion says Judge Herriford errored when he allowed it to be used as evidence over Mgdesyan’s objection, but prosecutors say Mgdesyan could have asked to pause the trial so he could secure Lanez’s social media manager, Joshua Farias, as a witness.
Lanez’s motion included a declaration from Farias saying he — not Lanez — wrote the comment, but prosecutors point out that Judge Herriford “gave the defense an opportunity to be heard further” after ruling the evidence was admissible. Mgdesyan maintained his objection but didn’t ask to delay the trial or ask that the jury be instructed regarding the prosecutors’ late disclosure of evidence.
“The failure to ask for a continuance is particularly important considering that the defendant now claims the response was purportedly authored by his social media manager, Joshua Farias,” prosecutors wrote. “However, assuming the declaration by Mr. Farias is factually accurate, the defense had ample opportunity to call him as witness with reasonable diligence and could have asked for a brief continuance in order to produce him, if necessary.”
Further, Lanez didn’t need to rely on prosecutors to disclose the existence of the comment: It was in his possession the moment his Instagram account posted it.
“The defendant is essentially complaining about late disclosure of information that was already under his agency and control for over two years,” prosecutors wrote.
And even if the comment was disclosed late, “which the People do not concede, exclusion is not the remedy.”
“Except for cases of intentional destruction of prosecution evidence, there are virtually no cases in which an appellate court has determined that exclusion of prosecution evidence, instead of continuance, is the appropriate remedy for a prosecution discovery violation,” the opposition says.
Lastly, if Judge Herriford did error in allowing the comment as evidence, “the error was harmless.”
“In this case, the evidence of the defendant’s guilt was overwhelming, with multiple eyewitnesses identifying him as the shooter, the gun used in the assault found at his feet, and recorded apologies for the shooting,” prosecutors wrote. “In contrast, [the Instagram comment] was a relatively insignificant piece of evidence, and it is not reasonable to conclude that the jury would have reached a different verdict if the evidence had been excluded.”
Lanez’s post-shooting apologies took two forms: One was a series of text messages he sent Megan after he got out of jail.
The other was a phone call he made from jail to Harris, which you can listen to below. (Lanez was arrested on a gun charge shortly after the shooting, but he was not arrested for the shooting because Megan told first responders she’d merely stepped on glass, despite being hospitalized overnight and undergoing surgery on one of her feet. Megan contacted investigators four days later to say Lanez had actually shot her, and he was eventually charged with assault.)
‘What he believed was necessary to maintain their silence’
Prosecutors also dismissed Lanez’s argument that Megan should not have been allowed to testify that he told her after the shooting, “please don’t say anything because I’m on probation” because Lanez wasn’t on probation and instead was referring to a 2017 deferred prosecution.
“The defendant’s motive for making the statement was to manipulate the victim and Ms. Harris into keeping silent,” prosecutors wrote. “The defendant’s argument fails to consider that whether or not the defendant was actually on probation is immaterial since he said what he believed was necessary to maintain their silence.”
As with the DNA evidence and Harris’ mention of Holley, Mgdesyan did not object to Megan’s testimony about Lanez’s alleged statement.
“The court cannot commit error in the admission of evidence unless a party objects, and the task of raising evidentiary objections is the responsibility of counsel,” according to the filing. “Therefore, the defendant’s failure to object to the victim’s testimony regarding the defendant’s probationary status waived and forfeited the issue.”
Prosecutors also said Lanez’s argument against Harris’ 80-minute interview being played for the jury fails because of well-established caselaw that says suggestions of misconduct by prosecutors can open the door for such evidence.
That’s what happened with Harris’ interview: It never would have been played for the jury had Mgdesyan not implied in his cross of Harris that prosecutors unfairly pressured her.
Prosecutors’ opposition cites a 2008 California appellate court ruling, as well as a 2009 federal appellate ruling in the historic securities fraud prosecution of Enron Corp. CEO Jeffrey Skilling.
In Skilling’s case, the 5th Circuit U.S. Court of Appeals “held that a defendant can ‘open the door’ to the admission of evidence by making statements that suggest misconduct by the prosecution.”
“In such case, the court may allow the admission of evidence that would otherwise be excluded in order to provide context or rebut the defendant’s claims,” according to the filing. “In this case, the defendant’s suggestion of misconduct by the People opened the door for the entire September 2020 interview to be admitted into evidence, and the court properly allowed it.”
The tragic cost to her of ‘speaking her truth’
Lanez’s motion argues Judge Herriford wrongly precluded him from testifying by permitting prosecutors to question him about some of his song lyrics. His lawyers argue that’s illegal under California’s new law governing the admittance of rap lyrics and other creative expressions as evidence against criminal defendant.
But prosecutors say the court’s inquiry into the intended evidence “was appropriate and in line with its duty to ensure a fair trial.”
“The Court did not preclude the defendant from testifying or limit his right to testify, but rather indicated that any questioning would be evaluated on a case-by-case basis and must be relevant to this case,” according to the opposition. “The defendant’s argument that the Court chilled his right to testify is unsupported by the record and fails to recognize the Court’s responsibility to ensure a fair trial for all parties.”
Lanez also claimed that Judge Herriford improperly allowed Megan to reference some of Lanez’s lyrics in her testimony, but prosecutors say the testimony was “relevant to the victim’s credibility and the tragic cost to her of ‘speaking her truth’ about what the defendant did to her,” quoting Megan’s testimony.
(The brief doesn’t specifically address Lanez’s “CAP” video featuring him butchering horse legs, which his lawyers implied in their motion is not actually about Megan. But a reader emailed me pointing out other references to Megan in the video. “This part of the motion frustrated me the most because things he does within the first 10 seconds of that video are clearly directed at Megan “HGS Special” which [stands] four “Hot Girl Summer” or “Hot Girl Shit” (tags that Megan uses in her music herself) all of this occurs before he cuts up the horse bloody leg.”)
Lanez’s motion also argues his tattoos should be considered creative expressions under California’s new law, which prosecutors say is improperly asking Judge Herriford “to act as the legislature and improperly expand the scope of the law to include tattoos, which it does not.”
Read prosecutors’ full opposition here.
Read Lanez’s full motion here.
Megan returns to the public eye
After months of no public activity, Megan has returned to the public eye in a big way. She attended the 2023 Country Music Television Awards in Austin, Texas, on April 2, and she threw out the first pitch at the Houston Astros opening game on March 30.
On March 18, she attended a Women’s History Month event with Vice President Kamala Harris in Washington, D.C. She’ll also be performing at L.A. Pride in the Park in June.
I’ve reached out to Megan’s publicist to see if she plans to speak at Lanez’s sentencing should Judge Herriford reject his motion for new trial. I will let you know if I hear anything definitive.
I will of course be attending Judge Herriford’s hearing on Monday. Follow me on Twitter for updates from the courthouse, but the best way to follow my work is to subscribe to Legal Affairs and Trials with Meghann Cuniff. You can subscribe for free. I plan to eventually start paywalling some of my articles, but the Tory Lanez coverage will not be paywalled.
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