Allen & Diggs v. State

GREENE, J. In this case, we address whether a criminal defendant may introduce at trial evidence of a DNA “match” to prove the identity of another individual without first establishing additional confirmatory testing pursuant to Md.Code (2003, 2011 Repl.Vol., 2014 Supp.), § 2-510 of the Public Safety Article (“PS”). PS § 2-510 provides that “[a] match obtained between an evidence sample and a data base entry may be used only as probable cause and is not admissible at trial unless confirmed by additional testing.” Based on the plain language of the statute, we answer the question posed in the negative. Because of the common issues of law and fact, we have consolidated two criminal cases involving co-defendants for the purpose of this opinion. 1 FACTUAL AND PROCEDURAL HISTORY Following a seven-day jury trial in the Circuit Court for Montgomery County, Petitioners, Traimne Martinez Allen (“Allen”) and Howard Bay Diggs (“Diggs”), were convicted of attempted first degree murder, first degree burglary, robbery with a deadly weapon, attempted robbery with a deadly weapon, conspiracy to commit robbery, two counts of first degree assault, and two counts of using a handgun in the commission of a crime of violence, stemming from a home invasion and robbery that occurred on the night of June 23, 2009. 2 This ⁶⁴⁸ incident involved the following cast of characters: Allen, Diggs, and Alex “Gutta” Harris (the perpetrators); Sentayehu Negussie and Jeremy Gordon (the victims); and Lazoya “Suave” King and Shavon Jackson (the girlfriends). The relevant facts adduced at trial were as follows: 3 At the time of the incident, Jackson, King, Gordon, and Negussie had known each other for about one year.

For much of that time, Jackson was involved in a romantic relationship with Gordon, and King was involved in a romantic relationship with Negussie. Gordon and Negussie shared an apartment, and all four spent time there. At some point prior to the June 23, 2009 incident, both romantic relationships ended poorly. Jackson thereafter began dating Harris, and King began dating Diggs.

During the day on June 23, 2009, Jackson and Harris discussed “robbing somebody” for “money or drugs.” Jackson and King nominated Gordon and Negussie as potential targets, because those two were known to keep a supply of drugs and cash at their apartment. Jackson, King, Diggs, and Harris met later that day at Jackson’s apartment. There, they devised and rehearsed a plan whereby the women would invite themselves to “hang out” at Gordon and Negussie’s apartment and, once there, opened the door so that Diggs and Harris could access the apartment to commit the robbery. The group “did a little act out” of the plan: Diggs and Harris would barge into the apartment, order the occupants to the floor at gunpoint, tie up Gordon and Negussie, throw a few punches and kicks for good measure, and then search the apartment for the intended loot.

King called Negussie, who agreed to pick them up later that evening at a nearby Metro station. ⁶⁴⁹ At approximately 9:00 p.m. that evening, Allen joined the group. Driving a green Buick, Allen picked up Jackson, King, Diggs, Harris, and Chantel Fletcher, Jackson’s cousin, who had arrived sometime that afternoon. The group drove to the area surrounding Gordon and Negussie’s apartment, apparently to conduct reconnaissance prior to the planned attack. Allen then dropped off Jackson, King, and Fletcher at the Metro station to await Gordon and Negussie.

Fifteen minutes or so later, Gordon and Negussie arrived by car at the Metro station and picked up all three women. They proceeded to drive around, procured some drugs, and used the drugs while in the vehicle. Meanwhile, Jackson communicated with Harris about their progress via text messages. After an hour or two, Gordon, Negussie, and the women went to Gordon and Negussie’s apartment.

Jackson was the last to enter and left the apartment door unlocked. She then alerted Harris that they had arrived. Shortly thereafter, Harris, Diggs, and Allen, wearing bandanas over their faces, barged through the door into Gordon and Negussie’s apartment. Diggs was waving a handgun and ordered everyone to “get down.” Diggs and Harris then bound Gordon’s and Negussie’s hands behind their backs using duct tape, and kicked and punched them while on the floor.

Meanwhile, Allen, wearing a Pittsburgh Pirates baseball hat, was running in and out of bedrooms searching for and taking any items of value. Diggs apparently “pistol whipped” Gordon, who resisted, and both Gordon and Negussie were stabbed in the arm with a knife. Once the victims were restrained, Harris, Diggs, and Allen proceeded to collect various items in the apartment. The women fled the apartment at some point during the robbery.

Gordon managed to escape from his duct tape binding and ran towards the sliding glass backdoor of the apartment. Shots were fired, shattering the glass door. Gordon ran through the shattered glass and was hit by a bullet in his lower back. Meanwhile, unbeknownst to anyone involved in the robbery scheme, plain clothes officers of the Montgomery County police department were present in the area as part of an ⁶⁵⁰ undercover investigation regarding a series of recent automobile thefts.

Prior to the robbery at the apartment, two officers observed the green Buick parked on a side street and Harris, Diggs, and Allen standing behind it. Subsequently, several officers followed Harris, Diggs, and Allen, in the green Buick, to a nearby 7-Eleven convenience store. The men entered the 7-Eleven store, where they continued to be observed by officers in the vicinity. 4 While they were inside, another officer observed the contents of the Buick, which included a backpack, one black and one red bandana, two pairs of sneakers, and one pair of white gloves. The officers observed the Buick return to the side street but park in a different location than it had been previously.

Another officer, Sergeant Wyne, was posted near Gordon and Negussie’s apartment. He observed a black Hyundai arrive at the apartment complex, and saw Gordon and the three women exit the Hyundai and enter the apartment. Five to ten minutes later, Sergeant Wyne observed the green Buick race through the apartment parking lot and go “around the corner,” where another officer saw the Buick park and three men, “hoodies up,” exit the Buick and “jog over” to and enter the apartment building. One of the men was wearing a backpack.

Shortly thereafter, the officers saw three women “scurrying” away from the apartment building and heard two rounds of gunshots. Harris, Diggs, and Allen chased Gordon out of the apartment, but apparently gave up their pursuit, and Gordon was met by Sergeant Wyne, who had approached the apartment after hearing the gunfire. Noticing that Gordon was bleeding profusely from his mid-section, Sergeant Wyne called for medical assistance. Recognizing Gordon as one of the individuals who had walked into the apartment from the Hyundai, Sergeant Wyne also issued a radio broadcast to look out for ⁶⁵¹ the three women.

Additional officers arrived on the scene, and, upon entering the apartment, found Negussie bound and bleeding on the floor. Meanwhile, Harris, Diggs, and Allen ran back to the Buick, but fled when additional officers arrived. An officer apprehended Harris, but neither Diggs nor Allen were apprehended at that time. The three women had walked to the nearby 7-Eleven, where they were also arrested.

In completing their investigation of the June 23-24, 2009 incident, officers recovered various items from the apartment, the Buick, and the surrounding area. Of the numerous items collected by the police, DNA samples were taken from five of the items: two black bandanas (one found on a sidewalk and one found in the apartment stairwell), a Pittsburgh Pirates baseball hat, a black t-shirt, and an orange juice bottle. The Montgomery County Crime Laboratory analyzed the DNA samples and compared them to samples taken from the suspects and the victims. When there was no match, the laboratory uploaded the resulting DNA profiles to the Federal Bureau of Investigation’s (“FBI”) Combined DNA Index System (“CODIS”). 5 The baseball hat produced a mixture of DNA profiles, the major contributor of which was determined to be Allen.

In addition, two samples, one taken from one bloodied black bandana and one from the orange juice bottle, yielded DNA profiles that “matched” DNA records in CODIS associated with individuals other than any of the participants in the June 23, 2009 incident. Specifically, a DNA sample taken from the bloodied black bandana produced a “match” to a DNA profile of an individual named Richard Debreau, which had been previously uploaded to CODIS by the Montgomery County Crime Laboratory. In addition, a sample taken from ⁶⁵² the orange juice bottle produced a “match” to a DNA profile of an individual named Mohamed B angora, which had been previously uploaded to CODIS by the Maryland State Police. During a pre-trial motions hearing, Allen’s counsel proffered to the court that Richard Debreau was a known gang member who had recently pled guilty to a “nearly identical type of robbery” as in the present case.

The defense sought to have the other DNA samples taken from the crime scene compared to Debreau’s DNA, because, according to Allen’s counsel, “the more Richard Debreau DNA found on the scene, the more exculpatory I suggest this may well be.” Allen’s counsel further stated that he had submitted a request to have the Montgomery County Crime Laboratory compare all of the “unknown” DNA samples taken from the scene to Debreau’s DNA profile, but the laboratory had denied the request. The prosecutor argued that the testing of additional unknown samples was unnecessary, and that the State was aware of its continuing obligation to turn over any additional discovery if new evidence arose. The court then denied Allen’s general motion to compel on the ground that the defense was getting all of the discovery entitled to it. Defense counsel made no additional requests for testing of Debreau’s DNA.

On the morning of trial, the defense moved in limine to prevent the State from mentioning in its opening statement that the defendants were gang members. The State advised that it would not do so, but reserved the right to introduce evidence regarding gang affiliation and practice among members if the defense introduced evidence about Debreau’s DNA on the bandana taken from the scene. Specifically, the State proffered that it would introduce evidence regarding the use of “robbery kits,” a practice in which gang members purposefully deposit items containing the DNA of others at crime scenes. The judge asked who would introduce evidence of Debreau’s DNA.

Defense counsel responded that, if the State did not, they intended to call Naomi Striekman, a forensic specialist employed by the Montgomery County Crime Labo ⁶⁵³ ratory to introduce the evidence. 6 The trial judge denied the defense’s motion, stating that if the jury was “entitled to consider [evidence of Debreau’s DNA], they might also be entitled to consider why it’s on there.” In its case-in-chief, the State did not call an expert to present any DNA evidence. At the conclusion of its case-in-chief, however, the State moved in limine to preclude the defense from questioning Strickman about CODIS matches and specifically about the DNA profile matches to Debreau and Bangora. The State argued that such testimony would be inadmissible for three reasons: (1) Strickman lacked personal knowledge to testify regarding the DNA profile matches, because she did not complete the DNA profile comparison herself; (2) PS § 2-510 prohibits the admission of DNA matches at trial without additional confirmatory testing, which was not done in this case; and (3) the DNA evidence would be irrelevant without the addition of statistical data. Outside the presence of the jury, Allen’s counsel examined Strickman on the record.

Her testimony with regard to the match to Debreau’s DNA profile was as follows: ALLEN’S COUNSEL: ... [Y]ou are employed by the Montgomery County Police Crime Laboratory as a Forensic Scientist, correct? MS. STRICKMAN: Yes. ALLEN’S COUNSEL: And you, your work is mainly in the area of DNA examinations, is— MS.

STRICKMAN: Yes. ALLEN’S COUNSEL:—that correct? And you conducted a series of examinations related to this specific case, is that correct? MS.

STRICKMAN: Yes. ⁶⁵⁴ ALLEN’S COUNSEL: Now, there was an item identified as 0S7, a black bandana that you examined, is that correct? MS. STRICKMAN: Yes. ALLEN’S COUNSEL: And it’s my understanding that you found blood stains on that item?

MS. STRICKMAN: Yes. ALLEN’S COUNSEL: Is that accurate? MS.

STRICKMAN: Yes. ALLEN’S COUNSEL: And it’s my further understanding, based upon your report, that the blood stains were excluded as having come from [the defendants, the victims, and the victims’ other roommate], is that correct? MS. STRICKMAN: Yes.

ALLEN’S COUNSEL: And that the profile of the blood stains [was] submitted to CODIS— MS. STRICKMAN: Yes. ALLEN’S COUNSEL:—for the purposes of further, I guess, evaluation? MS.

STRICKMAN: Correct. ALLEN’S COUNSEL: Is that accurate? MS. STRICKMAN: Yes.

ALLEN’S COUNSEL: All right. Now, would you tell the [c]ourt what you learned with regard to that further evaluation of the blood stain on OS7? MS. STRICKMAN: Yes.

The DNA profile that was obtained from the blood stain, from OS7, was entered into CODIS, which is just a database of DNA profiles from individuals. And when that profile was searched, it was found to be consistent with a DNA profile of a known individual. ALLEN’S COUNSEL: Okay. And what did CODIS do in response to that to notify you?

MS. STRICKMAN: This was a, a local hit, meaning it was a hit to a DNA profile within our local database, so profiles entered by the Montgomery County Crime Lab. So, when ⁶⁵⁵ the profile was entered, the notification of the hit was as soon as the profile was entered. ALLEN’S COUNSEL: Okay.

The fact that it was a local hit, could you tell the [cjourt what that means with respect to who submitted the hit, which lab, and whether that lab, first, who submitted that profile? MS. STRICKMAN: The profile was submitted by another analyst in the Montgomery County Crime Lab. ALLEN’S COUNSEL: Once the local hit, you were informed of the local hit, did you take any further action with respect to the sample, the DNA profile you had, the unknown profile in that local hit?

MS. STRICKMAN: Once the local hit was, one the local hit was notified, then the investigator was sent a supplemental report that addressed the hit from that DNA profile from OS7 to the individual that was entered by the other analyst. And it was explained that this was investigative information, and then any connection to the individual would have to be done through further investigation, and they could request additional statistical calculation and comparisons. ALLEN’S COUNSEL: Well, so, specifically, was any additional testing done?

MS. STRICKMAN: No. ALLEN’S COUNSEL: Why not? MS. STRICKMAN: This was, again, it’s investigative information, so it has to be further investigated to determine if there is a connection to this individual, and if then they would need the comparison done with the individual’s profile to the evidence profile.

ALLEN’S COUNSEL: Okay.... When I refer to additional testing, was there any confirmatory testing to the CODIS hit against the original sample from the unknown person, which I will just say we know for the record is Richard Debreau? MS. STRICKMAN: No. ⁶⁵⁶ (Emphasis added).

In addition, Strickman acknowledged that additional or confirmatory testing could have been done on the Debreau sample upon request, because the Montgomery County lab had the original known sample. 7 The same was not true for the Bangora sample, because the original had been submitted by the Maryland State Police. With regard to the Bangora match, Ms. Strickman testified that: When we have a notification of a hit through the CODIS hit computer [at the Maryland State Police level], there isn’t any identifying information associated with notification, so we send a request for the match confirmation to the Maryland State Police.... [The State Police then] rerun the individual sample to confirm the DNA profile.... We have to wait for the confirmation from Maryland State Police to then proceed with issuing a report to the investigator, providing the name of the individual, and then requesting the known sample [from the State Police] for direct comparison .... [W]e have the sample run within our laboratory .... [a]nd then can do the direct comparison between that known DNA sample to our evidence profile. Ms. Strickman further stated that the laboratory made no request to the Maryland State Police for submission of the known sample, therefore, there was no “direct comparison” analysis completed on the samples related to the Bangora match.

The trial court then granted the State’s motion, stating that “for the reasons articulated by the State, [Ms. Strickman] is not a competent witness to testify as an expert concerning DNA testing of Mr. Debreau and Mr. Bangora[.]” Allen’s counsel moved for a mistrial, or in the alternative, a continu ⁶⁵⁷ anee to allow further development of the evidence. The trial court denied the motion, stating that “the [c]ourt finds that the Defense did have the opportunity, if it so wanted, to test this evidence[,] ... [a]nd furthermore, [Ms. Strickman] is not the proper witness for the kind of testimony that you’re referring to.” Subsequently, Strickman testified before the jury that Allen and Diggs were excluded as a possible source of the DNA on several pieces of evidence, including the bloodied bandana and the orange juice bottle. At the conclusion of Strickman’s testimony, Allen’s counsel proffered to the court that, “had the DNA evidence been permitted to be presented in full regalia,” the defense would have offered a photograph of Debreau as well as the transcript in the matter of State v. Debreau, in which Debreau pled guilty to a robbery described as a “home invasion drug-rip style robbery” approximately two weeks after the robbery in this case. The court accepted the proffer but did not amend its earlier ruling to exclude the testimony.

At the conclusion of trial on April 5, 2010, the jury convicted Allen and Diggs of attempted first degree murder, first degree burglary, robbery with a deadly weapon, attempted robbery with a deadly weapon, conspiracy to commit robbery, two counts of first degree assault, and two counts of using a handgun in the commission of a crime of violence. On June 22, 2010, Allen and Diggs were each sentenced to a total sentence of life imprisonment plus 90 years. Allen and Diggs subsequently appealed their convictions. The Court of Special Appeals affirmed, holding that the DNA match evidence was properly excluded because under “the plain meaning of [PS] § 2-510, evidence of a CODIS match is not admissible at trial—any trial, not just the trial of the individual associated with the DNA record—unless additional testing confirms the match.” Diggs & Allen v. State, 213 Md.App. 28, 56 , 73 A.3d 306, 322 (2013) (emphasis in original).

The court stated further that “an identification based solely on CODIS ‘matches’ is precisely the type of evidence PS § 2-510 is intended to and does, in fact, prohibit.” ⁶⁵⁸ 213 Md.App. at 59 , 73 A.3d at 324 . We granted Allen’s and Diggs’s petitioner for certiorari to answer the following question, which we have consolidated and rephrased for clarity: Does PS § 2-510 prohibit the introduction at trial by a criminal defendant of evidence of DNA matches to alternative suspects; and if so, does § 2-510 deny a criminal defendant his or her constitutional right to present a defense? For the following reasons, we shall affirm the judgment of the intermediate appellate court. DISCUSSION In its broadest sense, this case deals with the admissibility of DNA profile evidence in criminal trials.

We have recognized that “DNA is a powerful evidentiary tool and its importance in the courtroom cannot be overstated.” Whack v. State, 433 Md. 728, 732 , 73 A.3d 186, 188 (2013). Moreover, DNA evidence can serve both exculpatory and inculpatory functions. This case presents the unusual scenario of a criminal defendant offering DNA evidence to prove the identity of a third party to imply a possible alternative suspect in the crime, and as exculpatory evidence at the defendant’s trial. Background—DNA Evidence and CODIS Before we consider the merits of this case, we shall review briefly the DNA collection and testing process to shape the context of our analysis.

First, we note that under the Maryland DNA Collection Act, PS § 2-510 et seq., Maryland cooperates with the FBI’s CODIS program, part of which is the National DNA Index System (“NDIS”), a database that contains the DNA profiles uploaded by participating laboratories around the country. 8 For that reason, we shall also consult as ⁶⁵⁹ guidance lor our review the NDIS Operational Procedures Manual (“NDIS Manual”). 9 Under the Maryland DNA Collection Act, to analyze DNA the collecting agency (i.e. the state or local police) must first obtain a sample. The Act defines a “DNA sample” as: [A] body fluid or tissue sample that is: (1) provided by an individual who is convicted of a felony or a violation of § 6-205 or § 6-206 of the Criminal Law Article; (2) provided by an individual who is charged with: (i) a crime of violence or an attempt to commit a crime of violence; or (ii) burglary or an attempt to commit burglary; or (3) submitted to the statewide DNA data base system for testing as part of a criminal investigation. ⁶⁶⁰ PS § 2-501(i). As noted by the Court of Special Appeals, DNA samples may be obtained in two primary ways: (1) directly from an individual, 10 typically by a buccal swab; or (2) from forensic evidence collected from a crime scene. See Diggs & Allen, 213 Md.App. at 50-51 , 73 A.3d at 319.

Once collected, DNA samples are analyzed by a licensed facility to produce a “DNA profile,” which is defined by the NDIS Manual as “[t]he genetic constitution of an individual at defined locations (also known as loci) in the DNA....” NDIS Manual at 82. The laboratory then creates a “DNA record,” which is defined by the Act as “DNA information stored in CODIS or the statewide DNA data base system[, and] includes the information commonly referred to as a DNA profile.” PS § 2-501 (h). According to the NDIS Manual, the DNA record is “[a] database record that includes the DNA profile as well as data required to manage and operate NDIS, i.e., the Originating Agency Identifier which serves to identify the submitting agency; the Specimen Identification Number; and DNA personnel associated with the DNA profile analyses.” NDIS Manual at 83. Essentially, the DNA record serves as the administrative envelope for the DNA profile.

Once a DNA profile is prepared, it can be compared with profiles produced by other samples, a process we have previously referred to as “DNA profiling.” See Young v. State, 388 Md. 99, 110 , 879 A.2d 44, 50 (2005) (“DNA profiling typically is used to compare a suspect’s DNA with a sample of DNA taken from a crime scene.”). As relevant to our analysis, DNA profiles are typically developed by a laboratory at the state or local level and then uploaded to CODIS. NDIS maintains multiple searchable indices of DNA records. 11 ⁶⁶¹ NDIS Manual at 41-42. The “forensic” and “offender” 12 indices are typically the most relevant in a criminal investigation.

Justice Scalia, in his dissent in Maryland v. King, characterized these indices, respectively, as the “Unsolved Crimes Collection” and “Convict and Arrestee Collection.” - U.S. -, 133 S.Ct. 1958, 1984 , 186 L.Ed.2d 1, 36 . Once a week, NDIS runs a search of all new and modified DNA records against all records maintained in the authorized indices. NDIS Manual at 42. An “Offender Candidate Match” occurs when a forensic DNA profile matches an offender DNA profile.

Id. at 44. In other words, the “unknown” DNA profile, developed by the lab from crime scene evidence, produces a match to a DNA profile of a known individual kept on file in the NDIS indices. Once this occurs, NDIS sends a report to the laboratories that submitted each profile: the laboratory that submitted the unknown profile developed from crime scene evidence is called the “Casework Laboratory,” and the laboratory that submitted the original known profile is called the “Offender Laboratory.” Id. at 44-45. The laboratories then complete an administrative check to make sure that there were no errors in the original records.

Id. at 45. If this process verifies the accuracy of the records, NDIS then refers to the match as a “confirmed match.” Id. at 46. It is only once this occurs that the Offender Laboratory releases the personal information of the known DNA sample to the Casework Laboratory for use in the criminal investigation. Id.

As noted in the NDIS Manual, this is not the end; once there is a confirmed match, the Casework Laboratory must obtain from the relevant law enforcement agency “a legally obtained sample from the offender that documents the chain ⁶⁶² of custody[,]” so that “[t]he Casework Laboratory can then perform DNA analysis on the newly obtained known biological sample submitted by the Law Enforcement Agency.” Id. The goal, then, is for the match to aid in the investigation and prosecution of a criminal case. 13 Admission of DNA Match Evidence In the instant case, the defense sought to introduce DNA match evidence to prove the identities of Debreau and Bangora, and that DNA belonging to Debreau and Bangora was found at the scene of the crime. Then, the defense proffered that it would introduce evidence that Mr. Debreau had recently pled guilty to committing a factually similar crime in the same county. We first question the relevance of this evidence.

With regard to the introduction of the identities of Debreau and Bangora, at oral argument before this Court, counsel for Diggs urged that assigning a name to the unknown DNA at trial would have a greater effect on the jury in terms of raising reasonable doubt as to the defendants’ guilt. At the pre-trial hearing, defense counsel proffered that “the more Richard Debreau DNA found on the scene, the more exculpatory I suggest this may well be.” Petitioners did not specify how the presence of Debreau’s or Bangora’s DNA at the scene ⁶⁶³ would negate Petitioners’ participation in the criminal enterprise, however. 14 Without some other evidence tending to connect the individuals whose DNA was found at or near the crime scene to the actual crime, or tending to negate or nullify Petitioners’ own culpability, particularly where it was clear that the incident involved multiple persons, the identity of those other individuals is of very limited, if any, probative value. 15 As to Mr. Debreau, however, Petitioners’ proffer was twofold. Essentially, by offering evidence of the presence of Debreau’s DNA at the crime scene, coupled with Debreau’s recent conviction relating to an alleged similar “home invasion drug-rip style robbery” also in Montgomery County, the defense attempted to offer evidence of an alternative suspect to shift the blame away from Petitioners. At oral argument before this Court, counsel for Petitioners did not provide an answer as to specifically how the evidence regarding Debreau’s conviction would have been admissible into evidence ⁶⁶⁴ or, more importantly, how the underlying facts of that conviction would have been admissible, given that there is at present no crime titled “home invasion” in Maryland.

The evidence relating to Debreau’s alleged similar “home invasion drug-rip style robbery,” as offered, would constitute “other crimes” or “prior bad acts” evidence. The admission of “other crimes” evidence is governed by Md. Rule 5-404(b), which provides that: Evidence of other crimes, wrongs, or acts ... is not admissible to prove the character of a person in order to show action in 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, or absence of mistake or accident. In Sessoms v. State, 357 Md. 274 , 744 A.2d 9 (2000), this Court held that the exclusion under Md. Rule 5-404(b) applies only to other crimes or prior bad acts of the defendant.

In other words, the exclusion of other crimes evidence does not apply when the accused, in his or her defense, offers other crimes evidence of another individual. The use of other crimes evidence by the defendant “as a shield” has been referred to as “reverse other crimes evidence.” Sessoms, 357 Md. at 287 , 744 A.2d at 16 (quoting United States v. Aboumoussallem, 726 F.2d 906, 911-12 (2d Cir.1984)) (“[T]he standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”); Gray v. State, 137 Md.App. 460, 486 , 769 A.2d 192, 207 (2001) reversed on other grounds, 368 Md. 529 , 796 A.2d 697 (2002). As stated by the Court of Special Appeals in Gray v. State, “the admissibility of reverse other crimes evidence, i.e., evidence that someone other than the defendant committed other crimes or bad acts, is governed by Md. Rule 5-403[.]” Gray, 137 Md.App. at 487 , 769 A.2d at 207 . Maryland Rule 5-403 provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the ⁶⁶⁵ jury.... ” Thus, reverse other crimes evidence must be relevant 16 and must pass the Md. Rule 5-403 balancing test—that is, its probative value must not be outweighed by the danger of unfair prejudice.

See United States v. Stevens, 935 F.2d 1380, 1405 (3d Cir.1991) (“[A] defendant must demonstrate that the ‘reverse [other crimes]’ evidence has a tendency to negate his [or her] guilt, and that it passes the Rule 403 balancing test.”). It appears highly likely that the admission of evidence of Debreau’s DNA at the scene would have resulted in a “mini-trial,” with the State using gang evidence and evidence of “robbery kits” to rebut the inference that Debreau and/or Bangora committed the robbery and assaults. To do so undoubtedly would have been misleading and confusing to the trier of fact. Moreover, as noted by the Court of Special Appeals, “[a]s a basis of its ruling, the trial court adopted the prosecutor’s contention that the admission of the COD1S matches on these facts would result in a confusing and distracting mini-trial on gang-related issues....

This determination has not been challenged on appeal.” Diggs & Allen, 213 Md.App. at 61-62 , 73 A.3d at 325-26 (citing Md. Rule 5-403). We agree with the Court of Special Appeals. Any slight probative value here would have been outweighed by its prejudicial effect (i.e., the confusion and delay caused by the “mini-trial on gang-related issues”). 17 ⁶⁶⁶ Aside from questions of relevance, unfair prejudice, and confusion -with regard to the introduction of evidence of Debreau’s and Bangora’s DNA, there are express statutory limitations on the admissibility of DNA profile evidence. We address these statutory limitations next.

PS § 2-510 At issue before us is PS § 2-510, which provides that “[a] match obtained between an evidence sample and a data base entry may be used only as probable cause and is not admissible at trial unless confirmed by additional testing.” In this case, it is undisputed that no “additional testing” was completed (by the State or Petitioners) regarding the DNA matches with regard to either Debreau or Bangora. The Court of Special Appeals held that under the plain meaning of the statute, the failure to perform additional confirmatory testing barred the introduction of the DNA match evidence at trial. Diggs & Allen, 213 Md.App. at 59 , 73 A.3d at 324. We agree with the Court of Special Appeals.

Petitioners argue that the trial court and the Court of Special Appeals erred in their interpretation of this section to exclude the Petitioners’ use of DNA matches to third parties. Petitioners assert that PS § 2-510 was only intended to apply to the admission of evidence against the accused, who is also the subject of the match. Petitioners would have us draw a distinction between the State’s inculpatory use of DNA match evidence and a criminal defendant’s exculpatory use of that same evidence, based on the nature of the statute and a criminal defendant’s constitutional right to present a fair defense at trial. The State responds