Diggs v. State

KEHOE, J. After a seven day trial by jury in the Circuit Court for Montgomery County, co-appellants Traimne Martinez Allen and Howard Bay Diggs were convicted of attempted first degree murder, first degree burglary, attempted robbery with a deadly weapon, 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. The charges arose out of an alleged home invasion ³⁷ and robbery that occurred in Montgomery County on June 23-24, 2009. On appeal, appellant Allen presents the following questions for our review, which we have expanded, reordered, and rephrased: I. Did the trial court err in prohibiting the defense from introducing evidence that DNA samples obtained from items recovered at the crime scene produced Combined DNA Index System “matches” to persons other than appellants?

II

Did the trial court err in admitting DNA evidence without supporting contextual statistical data?

III

Did the trial court err in denying appellants’ motion for mistrial when the prosecutor asked certain improper questions during the direct examination of a witness?

IV

Did the trial court err in denying Allen’s motion for mistrial when the prosecutor stated during opening statement that Allen was unemployed? V. Did the trial court err in prohibiting Allen from eliciting exited utterances made by a co-defendant who was tried separately?

VI

Did the trial court err in its determination that a letter written by Allen, addressed to his girlfriend, did not fall within the attorney-client privilege and did not constitute attorney work product?

VII

Did the trial court err in instructing the jury as to accomplice liability?

VIII

Was the evidence legally sufficient to support appellants’ convictions for attempted first degree murder? Appellant Diggs joins Allen in questions I, III, VII, and VIII, and adds the following, which we have reordered and rephrased: I. Did the trial court err in its determination that a statement contained in a police report was inadmissible because it constituted hearsay? ³⁸ II. Did the trial court err in allowing the prosecution to comment on Diggs’ demeanor during closing argument? Perceiving no reversible error, we will affirm the decisions of the trial court.

BACKGROUND On March 29-31 and April 1-2, 5-6, 2010, Allen and Diggs were tried jointly before a jury on the aforementioned charges. The State called eighteen witnesses to testily in its case-in-chief. This evidence, taken in the light most favorable to the State as the prevailing party, established the following: Negussie and Gordon On the night of June 23, 2009, Sentayehu Negussie and Jeremy Gordon picked up their ex-girlfriends, Lazoya King and Shavon Jackson, along with Jackson’s cousin, Chantel Fletcher, from the Shady Grove metro station in Montgomery County, Maryland. The group drove to a gas station in Takoma Park, where Gordon bought drugs, and then continued to drive around for an hour or two while smoking marijuana and ingesting ecstasy.

They eventually returned to the apartment Negussie and Gordon shared, which was located near Rockville, in Montgomery County. Jackson was last into the apartment, and intentionally left the door unlocked. Within minutes of their arrival, three men—Diggs, Allen, and an associate named Alex “Gutta” Harris—slammed through the apartment door. Allen and Diggs had dreadlocks and wore bandanas or scarves over their faces.

Harris wore a baseball hat turned backwards, and a bandana which did not cover his face. Diggs was pointing a gun. The men ordered Negussie and Gordon to drop to the floor. Negussie obeyed and dropped to the floor, where his hands were bound together behind his back using duct tape.

He was then punched and kicked in the head, and his arm was sliced with a knife (eventually requiring fifteen stitches). Gordon refused to go the floor, and a fight ensued. During the fight, Gordon was punched in the face, kicked in the face and torso, stabbed in ³⁹ the right arm with a knife, and, according to Jackson, “pistol whipp[ed]” by Diggs. Gordon was forcefully dropped to the floor at some point during the fight, and his hands were bound together behind his back using duct tape.

Once Negussie and Gordon were subdued, the intruders proceeded to take various items from the apartment, including cash, drugs, a PlayStation, and Negussie’s wallet, watch, and sneakers. While the men were in the process of collecting items, Gordon broke free from the duct tape bindings, jumped up, and ran toward a sliding glass backdoor that led out of the apartment. Shots were fired, the glass door shattered, and, as he exited the apartment or immediately thereafter, Gordon was hit in the lower back by a bullet. As he ran away, he encountered a police officer—Sergeant Wyne—who tended to his wounds and called for medical assistance.

Jackson, King, and Fletcher Jackson, King, Gordon, and Negussie knew each other for about one year prior to the above-described incident. During much of this period, Jackson dated Gordon, and King dated Negussie. These relationships eventually ended on poor terms. A short time later, Jackson began dating Alex Harris, and King began dating Diggs.

According to Jackson, at some point during the day on June 23, 2009, she and Harris had a conversation about “robbing somebody” for “money or drugs.” Later that evening, while at her apartment, she and King decided to “set[ ] up” Gordon and Negussie because they were known to keep drugs and “a big wad” of cash in their apartment. Jackson first called Gordon, but he didn’t answer his phone. King then called Negussie, who answered and agreed that he and Gordon would pick up the women later that evening at the Shady Grove metro station. Soon thereafter, Harris and Diggs arrived at Jackson’s apartment.

Together, Jackson, King, Harris, and Diggs devised a plan to carry out the robbery. Pursuant to this plan, Jackson would grant Harris and Diggs access to the Gordon ⁴⁰ Negussie apartment. Upon their entry into the apartment, Diggs, wielding a gun, would order everyone inside the apartment to the floor. Harris and Diggs would then tie up Gordon and Negussie, kick and punch them a few times, and, finally, search the apartment for cash and drugs.

According to Jackson, once the plan was formulated, “[w]e basically did like a little act out plan of what we was going to do.” While the group was rehearsing, Fletcher—Jackson’s cousin—arrived at the apartment and joined in on the scheme. Around 9 p.m. that night, Allen arrived in a green Buick and picked up Jackson, King, Fletcher, Harris, and Diggs. As they drove, the group continued to discuss and further plan out the robbery. They first arrived at and scouted out the area surrounding the Gordon—Negussie apartment.

The group then drove to the Shady Grove metro station, where Jackson, King, and Fletcher exited the Buick. An estimated fifteen minutes later, Gordon and Negussie arrived at the metro station and picked up Jackson, King, and Fletcher. While the group was driving around and doing drugs, Jackson kept Harris abreast as to their activities and whereabouts via periodic text messages. After joyriding for an hour or two, Gordon and Negussie drove the women back to their apartment.

Jackson was the last to enter, and intentionally left the door unlocked. She and Fletcher then went to the bathroom, where they contacted Harris and informed him that the group had arrived at the apartment and that the door was unlocked. Soon thereafter, Harris, Diggs, and Allen burst through the front door of the apartment. Jackson testified that Diggs wore “a red bandana” over his face and “[kjhaki shorts, white t-shirt, and brown converse [shoes];” Harris wore a “black bandana” over his face, a black hat turned around backwards, and “[a]ll black, a black shirt, black shorts and black sneakers;” Allen wore “a black scarf’ over his face and head and “blue jeans and a white t-shirt.” According to Jackson, Diggs “was pointing a gun and[ ] told everyone to get down.... ” Gordon and Negussie were subsequently beaten, subdued, and ⁴¹ then robbed of drugs, cash, and other items.

At some point during the robbery, Jackson, King, and Fletcher exited the apartment. On the way out, King grabbed a knife from the carpet, and Jackson heard “gunshots.” The three women walked to a nearby 7-Eleven, tossing the knife into bushes along the way. They were then apprehended by police officers and arrested. The Police Unbeknownst to the participants in the events we have described, Montgomery County police officers were present in force in the vicinity of the Gordon-Negussie apartment when the home invasion occurred.

Police officers wearing plain clothes were in the area conducting surveillance as part of an investigation into a recent series of automobile thefts. In the course of these efforts, two officers, Sergeant Wyne and Officer Drengwitz, observed three men—Harris, Diggs, and Allen—standing at the rear of a green Buick parked on a side street. Sergeant Wyne and several other officers followed the men to a nearby 7-Eleven. While the men were inside the store, Officer Drengwitz approached the parked Buick and observed that it contained a black and gray backpack, one black bandana, one red bandana, two pairs of sneakers, and one pair of white gloves.

Another officer, Officer Chmiel, observed the men inside the 7-Eleven. Officer Chmiel described one of the men as having dreadlocks and wearing “a black sweatshirt, hooded sweatshirt, and a pair of khaki cargo shorts” and “dark-colored canvas shoes.” Another of the men wore “all black, black pants, black shirt, and a backwards black baseball cap” with a “white design.” The third man had “dreadlocks” and “was also in all black, black shorts, black shirt, and a black Pittsburgh Pirates hat that was being worn backwards.” The 7-Eleven’s surveillance video, which was admitted into evidence, depicted the above-described men—including several shots of their faces from multiple angles—purchasing, among other items, three pairs of gloves from the store. The video ⁴² also showed that at least one of the men wore a white undershirt beneath a black t-shirt, and that one of the men was laughing and smiling. After a few minutes, the men exited the 7-Eleven and returned to the Buick.

Sergeant Wyne took a position nearby the Gordon-Negussie apartment, and, soon thereafter, observed a black Hyundai pull into the apartment’s parking lot and at least one man—Gordon—and three women—Jackson, King, and Fletcher—exit the vehicle and enter one of the apartments. Sergeant Wyne testified that he could not see whether anyone else stepped out of the front passenger side of the Hyundai. According to Sergeant Wyne, five to ten minutes later, the green Buick arrived on the scene, its driver “just absolutely flooring] it, really fast ... like, raced the engine, went all the way up the parking lot, and I saw it go around the corner. I mean, really, I could hear the tires screeching....” The Buick parked nearby, and Officer Drengwitz observed three men exit the Buick, wearing “all dark clothing” with “hoodies[] up.” Their faces were not visible.

Officer Drengwitz watched the men “jog[] over” to and enter the Gordon-Negussie apartment complex. One of the men carried the black and gray backpack. Five minutes later, Jackson, King, and Fletcher exited the apartment. They stood for a moment in the parking lot.

Sergeant Wyne described them as acting “very agitated.” As the women were “scurrying” from the parking lot, gunshots sounded. According to Sergeant Wyne, there were two rounds of gunshots. The first was a “volley of muffled gunshots,” “four to five shots” that, in Wyne’s opinion, came “from indoors.” The second round was a series of seven to ten “very loud gunshots” that “were clearly outdoors.” Officer Drengwitz testified that, from his vantage point, he witnessed Gordon—now outside the apartment—being chased by Harris, Diggs, and Allen, one of whom had a gun and was ⁴³ shooting at Gordon. The three men eventually gave up their pursuit of Gordon and returned to the Buick.

Upon sound of the gunshots, Sergeant Wyne approached the apartment complex, where he encountered Gordon fleeing from the scene. The Sergeant described Gordon as having “a lot of blood coming between his fingers” which were placed over “his midsection” as well as “a serious amount of blood coming out of his mouth and nose, down his face.” Sergeant Wyne tended to Gordon’s wounds and called for medical assistance. Back at the Buick, Harris, Diggs, and Men crouched low beside the car. Once the car was unlocked, one of the men— Harris—-jumped into the passenger seat.

Before the other two could get inside, police cruisers approached and blocked the Buick’s escape. The two men outside the vehicle fled immediately. Harris jumped out of the car and fled. Officer Hall chased Harris, caught up to him, and placed him under arrest.

During the chase, Officer Hall observed several items, including a bag and a baseball hat, on the sidewalk. A knife was recovered from Harris’s person. Neither Men nor Diggs were apprehended. Other officers secured the crime scene.

They discovered Negussie in the apartment’s bathroom, his hands tied and, according to Hall, he “was bleeding from a wound to his right arm.” Detective Patricia Poulos, a forensic services detective, recovered various items from the apartment, the Buick, and the nearby area. These items included a partially loaded nine millimeter handgun, which was recovered “under the right rear passenger side door” of the Buick; a bag containing sneakers, a backpack containing a PlayStation, a black bandana, a pair of gloves, and several bullet casings and fragments, all of which were recovered from the nearby street and sidewalk; a black glove, a black bandana, and a baseball hat, which were recovered from inside the apartment’s stairwell; a black t-shirt recovered from behind the apartment building; and a black Pittsburgh Pirates baseball hat, an empty orange juice bottle, and documents bearing Allen’s name, which were ⁴⁴ recovered from the Buick. 1 A firearms examiner later determined that the fragments and casings recovered from the scene had been fired from the handgun found beneath the Buick. The police also recovered Harris’s cell phone and searched its contents pursuant to a search warrant. The phone’s contact list included entries for “Diggs” and “Diggs House.” Stipulations The parties stipulated that fingerprint evidence obtained from the handgun failed to implicate Diggs, and that, at the time of the robbery, Harris was wearing a bandana.

They also stipulated as to the extent of the injuries received by Gordon and Negussie during the incident. DNA Evidence DNA samples were taken from both of the black bandanas, the Pittsburgh Pirates baseball hat, the black t-shirt, and the orange juice bottle. The State, in its case-in-chief, did not present DNA evidence. Appellants, in their defense, called Naomi Strickman—their sole witness—as a DNA expert to testify about the samples taken.

We will discuss Ms. Strickman’s testimony in greater detail in Parts I and II. Jackson’s Plea Bargain In return for her testimony, the State entered into a plea bargain with Jackson wherein Jackson agreed to plead guilty to first degree burglary, robbery with a deadly weapon, and first degree assault for her role in the home invasion. During her testimony, Jackson implicated herself in the above-described scheme, admitted to using drugs while with Gordon and Negussie and on prior occasions, and admitted that she lied to the police after she was arrested and to the State’s Attorney’s Office. The terms of Jackson’s plea agreement were admitted into evidence at trial. ⁴⁵ The Verdicts and Sentences After deliberating, the jury convicted Allen and Diggs of attempted first degree murder, first degree burglary, attempted robbery with a deadly weapon, 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.

They were each sentenced to serve a total of life plus ninety years imprisonment. Specifically, they were sentenced to life imprisonment for their convictions for attempted first degree murder, and to sentences of twenty years imprisonment for attempted robbery with a dangerous weapon, twenty years imprisonment for robbery with a dangerous weapon, twenty years imprisonment for conspiracy to commit robbery, twenty years imprisonment for first degree burglary, and five years imprisonment for each count of using a handgun in the commission of a crime of violence (the remaining counts merged). The latter sentences were run concurrent with each other, but consecutive to the sentences for attempted first degree murder. This appeal followed.

DISCUSSION I. Introducing Evidence of CODIS Matches DNA samples were taken from five items recovered from the crime scene: the Pittsburgh Pirates baseball hat and an orange juice bottle, both of which were recovered from the Buick; a black t-shirt found behind the Gordon-Negussie apartment building; a black bandana recovered from the nearby street or sidewalk; and, lastly, a black bandana recovered from inside the apartment’s stairwell. The DNA samples were analyzed by the Montgomery County Crime Laboratory and corresponding DNA records were uploaded to the Combined DNA Index System (“CODIS”), an index of DNA profiles managed nationally by the Federal Bureau of Investigation (“FBI”), and implemented locally by state and municipal law enforcement authorities. 2 Two of the samples upload ⁴⁶ ed produced what are known as “matches” to DNA records in CODIS associated with individuals other than appellants: first, one of the black bandanas produced a “match” to a man named Mohamed Bangora; second, the orange juice bottle produced a “match” to a man named Richard Debreau. As we will explain, for the purposes of CODIS, “match” is a term of art, with a very specific meaning. No additional testing and/or analysis was completed on these samples.

At trial, the prosecution did not introduce DNA evidence in its case-in-chief. Appellants, in their defense, called and certified Naomi Strickman—a forensic specialist with the Montgomery County Crime Laboratory—as a DNA expert to testify about the samples collected and the results of the CODIS search. Before Strickman testified, the prosecution moved in limine to prohibit Strickman from testifying about the CODIS matches to Bangora and Debreau. In support of this motion, the prosecutor argued that introduction of evidence of a CODIS match, where, as here, no additional testing had been completed to verify the match, was prohibited by Md.Code Ann. (2003, 2009 Supp.) § 2-510 of the Public Safety Article (“PS”).

The prosecutor also argued that evidence of the CODIS match constituted hearsay because Strickman was not the person who ran the CODIS search; that the CODIS match was irrelevant because other evidence—including several eyewitnesses, the surveillance video and, in Allen’s case, other DNA evidence—placed appellants at the scene of the crime; and that the probative value of the CODIS matches, if any, was outweighed by a high potential that evidence of the matches would distract and confuse the jury. On the last point, the prosecutor argued that, if evidence of the CODIS matches were admitted at trial, then the prosecutor would seek to admit evidence that Debreau was a known gang ⁴⁷ member, and that appellants were members of, or affiliated with, gangs known to use kits designed to contaminate DNA evidence at crime scenes. This, according to the prosecutor, would create a mini-trial on the issue of whether appellants were, in fact, involved with such gangs, and whether such a kit was employed in the instant case. In response, appellants asserted that evidence of the CO-DIS matches was relevant and, more so, had exculpatory value, both because it suggested that Bangora and Debreau were at the scene of the crime, and because Debreau had been previously convicted of a home invasion.

After considering these arguments, the trial court granted the motion in limine, adopting the arguments set forth by the prosecutor. The trial court did, however, permit Ms. Strickman to testify that the DNA on the black bandana and the orange juice bottle did not match the DNA of Allen or Diggs. On appeal, both Allen and Diggs assert that the trial court erred in excluding evidence of the CODIS match because, in their view, it was exculpatory. By excluding it, appellants argue that the trial court violated their Sixth Amendment and Due Process rights and the rights guaranteed them under Article 21 of the Maryland Declaration of Rights.

For the reasons set forth below, we disagree. In order to place these arguments in their proper context, we will first provide a brief overview of the types of DNA evidence recoverable from a crime scene, and address how this evidence is analyzed and its value in identifying or exculpating criminal suspects. We will next provide an overview of CODIS, how it produces a “match,” and the significance of such a match. We will then turn to the parties’ arguments in the instant case. 1.

Types of DNA Human cells contain two genes capable of being analyzed for DNA: mitochondrial DNA (mtDNA) and nuclear DNA (nDNA). See Julian Adams, Nuclear and Mitochondrial DNA in the Courtroom, 13 J.L. & Pol’y 69 (2005). We will take each of these genes in turn. ⁴⁸ a. Mitochondrial DNA Mitochondrial DNA is the smaller of the DNA genes and is found within an organelle called the mitochondrion which floats “in the cytoplasm surrounding the nucleus of a cell.” Wagner v. State, 160 Md.App. 531, 544 , 864 A.2d 1037 (2005); see Adams, at 71-72.

Mitochondrial DNA is generally recoverable from “evidence containing naturally shed hairs, hair fragments, bones, and teeth.” Laboratory Division, Federal Bureau of Investigation, Handbook of Forensic Services, 34-35 (2007) [hereinafter “Handbook”], http://www.fbi.gov/aboutus/lab/handbook-of-forensic-services-pdf. It exists in the shape of a double helix, and, “if the double helix structure of the mtDNA is stretched out, the exact order of As, Ts, Cs, and Gs in the mtDNA molecules of one person can be determined.” 3 Wagner, at 544-45, 864 A.2d 1037 . While it is “very unlikely that any two people will have the same order of their ATCGs in the control region of mtDNA ... [this type of DNA] is not a unique identifier, because any other person in the same maternal lineage will have the same type.” Id. at 545 , 864 A.2d 1037 ; see Handbook, at 35 (maternally related relatives and immediate family members may have the same mitochondrial DNA). For this reason, mtDNA can be, but is not often, used for purposes of identification.

Wagner, at 545, 864 A.2d 1037 . Instead, it is most often used as a method of exclusion, employed in cold cases and to track the whereabouts of missing persons. See id.; Handbook, at 35, 40-44. b. Nuclear DNA Nuclear DNA is the larger of the DNA genes.

Often referred to as the “human genome,” it is found in “chromosomes located within the nucleus of all human cells.” Maryland v. King, — U.S. -, 133 S.Ct. 1958, 1966-67 , 186 L.Ed.2d 1 (2013); see Adams, at 71-72. It is generally recoverable from “evidence containing blood, semen, saliva, body tissue, and hairs that have tissue at their root ends.” ⁴⁹ Handbook, at 34. As the Court of Appeals recently explained in Whack v. State, analysis of nDNA: focuses on repeated DNA sequences scattered through the human genome, known as short tandem repeats (STRs). The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as alleles, and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. 433 Md. 728 , 739 n. 6, 73 A.3d 186 , 2013 WL 4436602 at ⁴ n. 6 (2013) (quoting King, 133 S.Ct. at 1967 (internal citations and quotation marks omitted)).

In contrast to mtDNA, by studying and comparing alleles in nDNA, forensic scientists are able to determine “whether a biological tissue matches a suspect with near certainty,” King, 133 S.Ct. at 1967 (quoting District Attorney’s Office for Third Judicial Dish v. Osborne, 557 U.S. 52, 62 , 129 S.Ct. 2308 , 174 L.Ed.2d 38 (2009)), except in the case of identical twins. See Young v. State, 388 Md. 99, 106 , 879 A.2d 44 (2005). There are several methods of testing nDNA samples which have emerged in the last two decades, see United States v. Davis, 602 F.Supp.2d 658, 664-672 (2009) (discussing various methods of DNA testing), but currently the most commonly used of these is the polymerase chain reaction method. This method employs a technique called electrophoresis which places the nDNA in an electric field encased in a gel to separate the alleles by size on thirteen core STRs.

See, e.g., Young, 388 Md. at 108 , 879 A.2d 44 (quoting Gross v. State, 371 Md. 334 , 339 n. 1, 809 A.2d 627 (2002) (discussing the polymerase chain reaction method of nDNA analysis)); Adams, at 75-77 (same). These thirteen core STRs are then analyzed and a numerical representation of the information retrieved—called a DNA profile—is generated. See Federal Bureau of Investigation, NDIS Operational Procedures Manual 80 (2013) [hereinafter “NDIS Manual”], http://static.fbi.gov/docs/NDIS-Procedures-Manual-Final-l31-2013-l.pdf (A DNA profile is “[t]he genetic constitution of an individual at defined locations (also known as loci) in the DNA. A DNA profile derived from nuclear DNA typically ⁵⁰ consists of one or two alleles at several loci (e.g., short tandem repeat loci).... ”). 2.

DNA Samples In Maryland, a “DNA sample” is: 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. PS § 2-501(i); see also NDIS Manual at 81 (DNA sample “means a tissue, fluid, or other bodily sample of an individual on which a DNA analysis can be carried out.”). a. Samples Obtained from Individuals To rephrase in simpler terms, there are two general classifications of DNA samples recognized under PS § 2-501(i). The first of these is obtained directly from an individual, usually via cheek swab.

To this end, it is well-established in Maryland that law enforcement authorities can obtain DNA samples from individuals convicted, or arrested on the charge, of certain types of crimes, typically crimes of a violent or sexual nature. PS § 2-501(i); see PS § 2-501, et seq. (setting forth the rules applicable to the collection of DNA samples from the above-mentioned persons); King, 133 S.Ct. at 1980 (upholding the constitutionality of state collection of DNA samples from persons properly arrested on accusation of serious crimes); State v. Raines, 383 Md. 1, 15, 25 , 857 A.2d 19 (2004) (upholding the constitutionality of state collection of DNA samples from convicted persons). Once obtained, the DNA samples are then submitted to certified crime laboratories to be analyzed using one of the above-discussed techniques.

See PS ⁵¹ § 2-505 (providing that DNA samples shall be collected and tested for various purposes); Young, 388 Md. at 110 , 879 A.2d 44 (summarizing the steps involved in certain types of DNA analysis). Information derived from the analysis is used to create a DNA profile, which, in turn, is included in a DNA record. In Maryland, a DNA record has been specifically defined to mean, “DNA information stored in CODIS or the statewide DNA data base system” which includes “the information commonly referred to as a DNA profile.” PS § 2-501(h); compare NDIS Manual, at 81 (A DNA record is “[a] database record that includes the DNA profile as well as data required to manage and operate [the database].”). The databases in which DNA records are uploaded and stored are maintained by state authorities.

See PS § 2-505; Raines, 383 Md. at 41 , 857 A.2d 19 . After a DNA profile has been created and a corresponding DNA record uploaded to the appropriate database, the DNA samples are then “stored securely and maintained only” in a statewide DNA repository. PS § 2-506. b. Samples Obtained from the Crime Scene The second classification of DNA samples consists of samples recovered from the crime scene.

In this regard, it is becoming increasingly prevalent for investigators to examine items recovered from the crime scene—in the instant case, the hat, orange juice bottle, t-shirt, and bandanas—for DNA evidence. If obtained in sufficient quantity and quality, a DNA profile of this evidence can be created, and a DNA record uploaded to the state databases. 3. CODIS As is relevant to this appeal, DNA records are maintained in the databases in two distinct collections. We will adopt the terminology employed by Justice Scalia, in his dissent in King : “One of [the collections] ... consists of DNA samples taken from known convicts or arrestees.

I will refer to this as the ‘Convict and Arrestee Collection.’ The other collection consists of samples taken from crime scenes; I will refer to this as the ‘Unsolved Crimes Collection.’ ” 133 S.Ct. at 1984 (inter ⁵² nal citations omitted). Using the Combined DNA Index System—CODIS—law enforcement authorities can compare and contrast the DNA records stored in these collections—i.e., compare and contrast the DNA records of crime scene evidence against the DNA records of convicted or arrested individuals. 4 For example, in the instant case, DNA from five items was recovered from the crime scene. DNA records for these items were created and uploaded into the Unsolved Crimes Collection in CODIS. The following illustration is helpful: Unsolved Crimes Collection Convict and Arrestee Collection Orange Juice Bottle DNA Allen’s DNA T-Shirt DNA Diggs’ DNA Hat DNA Bangora’s DNA Bandana Number One DNA Debreau’s DNA Bandana Number Two DNA CODIS compares DNA records entered into the Unsolved Crimes Collection against each DNA record in the Convict and Arrestee Collection. 5 For example, in this case, CODIS compared the DNA record for the orange juice bottle against every DNA record stored in the Convict and Arrestee Collection, compared the DNA record for the t-shirt against every ⁵³ DNA record stored in the Convict and Arrestee Collection, and so on.

This comparison may result in a “match” or a “hit” or both, each of which is a narrowly defined term of art. A CODIS “match” occurs “when CODIS links two or more DNA records and a confirmation process is started by designated laboratory personnel from each affected laboratory [i.e. each laboratory maintaining a sample].” NDIS Manual, at 83. A CODIS match indicates that there is a sufficient level of consistency between the numerical data contained in the DNA records to justify additional testing and analysis of a known physical DNA sample from the individual associated with the DNA record. Accordingly, once CODIS matches the DNA from a crime scene to a DNA record in the Convict and Arrestee Collection, a known DNA sample of the individual associated with the Convict and Arrestee Collection DNA record is generally obtained and then tested and analyzed by the crime laboratory.

The data derived from the testing/analysis process is then compared to the DNA recovered from the crime scene in order to determine the likelihood that both samples came from a single individual—i.e., whether the match is sufficiently close to be deemed “confirmed.” See NDIS Manual, at 44-47, 51, 83; see also id. at 44 (“Although this process varies among laboratories, it is intended to verify that no administrative errors occurred while analyzing the offender sample”). A confirmed match becomes a “hit” when it aids in the investigation of an unsolved case. Id. at 82; see id. at 51 (“Matches and hits are not interchangeable terms or events.”). At trial and in their appellate briefs, the parties in the instant case refer to the CODIS matches to Bangora and Debreau as “hits.” This is inaccurate.

Ms. Strickman testified that no confirmatory testing was done to verify the CODIS links. Nor is there any indication in the record before us that these matches have aided in the investigation of an unsolved case. Thus, they were “matches” as we have defined the term in this opinion. ⁵⁴ The apparent confusion stems, most likely, from the use of the term “match” in different contexts in DNA cases. A CODIS “match”—what we describe above—is the linking of two DNA records stored in CODIS due to similarities in the numeric data contained in the record, where no additional confirmatory testing and analysis has been conducted.

A CODIS match probably, but does not always, mean that the two DNA samples represented by the DNA records came from the same person. 6 (That such matches are sometimes interchangeably referred to as “hits” by parties and courts only adds to the confusion). Once CODIS matches DNA records, additional analysis and testing is then completed on the DNA samples in order to determine whether the physical samples, themselves, “match”—i.e., whether, after the physical samples have been tested, compared, and analyzed, they are verified (to a near certain degree) to be from the same person. See Young, 388 Md. at 103, 110-12 , 879 A.2d 44 . It is this latter “match” which is discussed in cases such as Young , and which is also sometimes referred to as a confirmation.

See id; NDIS Manual, at 44-47, 83. 7 The important observation is this: as DNA technology advances, and scientific knowledge about DNA grows, processes and procedures used to analyze DNA evidence evolve, as does the terminology used to describe them. For this reason, when addressing issues involving DNA, parties should always consult with the latest DNA guides and CODIS manuals for updated definitions and procedures. Quotations from older DNA decisions—and appellate decisions age quickly in this area of the law—must be viewed with caution and considered ⁵⁵ in the context of the scientific techniques and the terminology discussed in those decisions. With these observations in mind, we return to the instant appeal. 4.

Public Safety Article § 2-510 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.” At trial, the prosecutor argued in support of her motion in limine that the CODIS matches to Bangora and Debreau were inadmissible pursuant to PS § 2-510 because no additional testing of the DNA samples was done to confirm the matches. The trial court adopted this view. Both Allen and Diggs argue that, in so doing, the trial court erred because, in their view, § 2-510 limits only the admission of evidence of CODIS matches in the trials of those individuals to whom the DNA records are associated—i.e., only in the trials of Bangora and Debreau. This presents a question of statutory interpretation.

As this Court recently explained, questions of statutory interpretation are often: resolvable on the basis of judicial consideration of three general factors: 1) text; 2) purpose; and 3) consequences. Text is the plain language of the relevant provision, typically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguity. Legislative purpose, either apparent from the text or gathered from external sources, often informs, if not controls, our reading of the statute. An examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court’s interpretation in reality.

Town of Oxford v. Koste, 204 Md.App. 578, 585-86 , 42 A.3d 637 aff'd, 431 Md. 14 , 63 A.3d 582 (2012) (internal citations omitted). ⁵⁶ Applying these rules, we disagree with appellants’ interpretation of PS § 2-510 for several reasons. First, their position is not supported by the text of the statute, and, indeed, is contradicted by it. By the plain meaning of § 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. Here, no confirmatory testing or analysis was completed, and, therefore, evidence of the CODIS match was properly excluded at Allen and Diggs’ trial.

See King v. State, 425 Md. 550, 567 , 42 A.3d 549 (2012) (the match “may be used[] only as probable cause to obtain a warrant to obtain a second sample [from the person associated with the DNA record] and is not admissible as evidence at trial.”), rev’d on other grounds, Maryland v. King, — U.S.-, 133 S.Ct. 1958 , 186 L.Ed.2d 1 (2013). Second, this rule makes logical sense. A CODIS match, by itself, is not—at least at the present time—considered to be sufficient confirmation that the two DNA samples represented by the DNA records came from the same person. Instead, the match indicates that there is a sufficient degree of similarity between the identifying characteristics of the DNA records to justify obtaining a known sample of DNA from the individual associated with the profile and testing and analyzing it against the crime scene DNA.

The underlying point of PS § 2-510 is to require those wishing to use evidence of a CODIS “match” at trial to test a physical DNA sample obtained from the alleged perpetrator against the physical DNA sample recovered from the crime scene, rather than relying solely on CODIS’s matching of the numerical representations stored in its databases. 8 The rule ensures that, ⁵⁷ before evidence of the “match” is admitted at trial, two DNA samples—one from the alleged perpetrator and one from the crime scene—have been tested, analyzed, and compared using the most recent scientific and technological methodologies available. For this reason, § 2-510 draws a distinction between CODIS “matches” that have been verified by additional testing and analysis, and those that have not. While appellants are surely correct that PS § 2-510 was originally intended, at least in part, to prohibit the admission of unreliable—or not fully reliable—evidence as a basis on which to convict a defendant, we view the converse as equally true; namely, that the same evidence should not be admissible at trial by a defendant as a mechanism to mislead, confuse, or otherwise distract the jury. This rule appears especially appropriate where, as here, appellants had an opportunity to test, analyze, and compare the DNA samples and faded do so.

There is no dispute that, while appellants did request that the Montgomery County Crime Lab perform such tests, the lab was not required to do so at its own expense. There is additionally no dispute that, had appellants requested the proper court order, the lab would have transferred the crime scene DNA samples and the known DNA sample of Debreau in its possession to another certified lab of appellants’ choosing for purposes of testing the samples. The Montgomery County lab could not, in any event, comply with appellants’ request to test a known sample of Bangora’s DNA because the only known sample was maintained, not by Montgomery County, but by the Maryland State Police. Despite their knowledge of this fact, appellants failed to pursue any of the options available to them to have Bangora’s DNA tested.

Third, in support of their position, appellants rely entirely on an opinion by the Maryland Attorney General rendered to address whether, under the version of § 2-510 then in effect, 9 ⁵⁸ a CODIS match could be used to establish probable cause for an arrest (as opposed to probable cause to obtain a DNA sample from a suspect). See 89 Md. Op. Atty. Gen. 189 (2004).

In their briefs, appellants selectively quote a portion of the opinion’s conclusion wherein it states: “In our opinion ... [t]he data base match would be inadmissible at a trial of that individual, unless the sample obtained pursuant to the search also matches the crime scene DNA” (emphasis added by Diggs). Id. at 194. Other portions of the opinion state similar conclusions. See, e.g., id. at 192 (“The essence of PS § 2-510 is that an individual may not be convicted on the basis of a match, but that the match may only be used for further investigation that may well lead to conclusive evidence of the individual’s involvement in the crime.” (emphasis added)).

However, in our view, when read in context and considered in light of its intended scope, the opinion does not provide, as appellants argue, that the application of § 2-510 is limited solely to the trials of those individuals associated with the matching DNA record. Rather, the opinion is consistent with the plain language of § 2-510—i.e., where, as here, no additional confirmatory testing has been completed, evidence of the CODIS match is inadmissible at trial, regardless of whether it be the trial of the individual associated with the DNA record or anyone else. Fourth, our construction of PS § 2-510 permits significant leeway to the defense, as the present case illustrates. The trial court permitted Ms. Strickman to testify that the DNA recovered from the bandana and orange juice bottle did not match the DNA of Allen, Diggs, Gordon, Negussie, or Meretle Wilson (a roommate of Gordon and Negussie’s not involved in the incident).

Counsel for both appellants highlighted these ⁵⁹ facts in closing argument. Thus, through process of elimination, appellants significantly narrowed the field of potential DNA contributors, thereby creating a strong inference that the DNA left behind belonged to another individual unnamed at trial. The trial court denied only the appellants’ ability to name Debreau and Bangora. While the issue has not been addressed by the Court of Appeals, pending a final resolution of the issue from the Court, we hold that such an identification based solely on CODIS “matches” is precisely the type of evidence PS § 2-510 is intended to and does, in fact, prohibit. 5.

Expert Testimony As an alternative ground for its ruling, the trial court held that Strickman lacked sufficient personal knowledge of the CODIS matches to testify about them, and that, as a result, her testimony constituted hearsay and was inadmissible. The basis for this conclusion is as follows: When CODIS matches DNA records, it generates what is typically called a “match report.” See NDIS Manual, at 83 (“After CODIS determines that two or more DNA profiles potentially match, an electronic report [i.e. the match report] is generated by CODIS and automatically distributed to the laboratories responsible for the matching profiles.”). Strickman testified that she received such a report, but that she did not generate it because the CODIS program, itself, determines, according to its own criteria, whether two DNA records match. She also testified that she was not the specialist who uploaded the DNA records to CODIS.

Strickman did, however, testify that she was capable of interpreting the report. Allen argues that Strickman, in her capacity as a DNA expert, should have been permitted to testify about the CO-DIS “matches” pursuant to Rule 5-703(a). That rule provides that: “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” ⁶⁰ We need not, and do not, decide whether Ms. Strickman had sufficient personal knowledge of the CODIS matches to testify about them as an expert.

Regardless of Ms. Strickman’s level of personal knowledge, we disagree with appellants’ contention that Rule 5-703(a) permits parties to admit evidence of a CODIS “match” where no additional testing and analysis has been completed. First, the fact that Strickman testified as a DNA expert does not change our analysis because DNA testimony is always based on specialized knowledge, skill, experience, training, or education. See Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005) (the law in Maryland no longer permits opinion testimony based on a witness’s specialized knowledge, skill, experience, training, or education, unless they are qualified as an expert witness). Second, Rule 5-703(a) does not state, as Allen suggests, that an expert who renders an opinion may, in the process, testify about matters explicitly prohibited by statute.

To allow an expert witness to testify about CODIS matches in circumstances where no additional testing was completed on known samples is equivalent to providing parties with an end-run around PS § 2-510. Allen has not cited to any authority that convinces us to adopt such a position here. Third, while there is certainly some level of interpretation involved in reading a “match report,” that CODIS matched two DNA records—i.e., indicated that the DNA records may have come from the same person—is a fact, not an opinion. The CODIS program either did, or it did not, indicate during its search that two DNA records matched.

Contrary to appellants’ assertions, Rule 5-703 does not provide, as an automatic right, that the facts relied on by an expert in rendering an opinion are to be admitted into evidence. Instead, Rule 5-703(b) provides: If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied upon by an expert pursuant to section (a) may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence. Upon request, .the court shall instruct the jury to use those facts and ⁶¹ data only for the purpose of evaluating the validity and probative value of the expert’s opinion or inference. The committee note for this provision provides, in pertinent part, that (emphasis added): Subject to Rule 5-403, and in criminal cases the confrontation clause, experts who rely on information from others may relate that information in their testimony if it is of a type reasonably relied upon by experts in the field.

If it is inadmissible as substantive proof, it comes in merely to explain the factual basis for the expert opinion. The opposing party then is entitled to an instruction to the jury that it may consider the evidence only for that limited purpose. See Gillespie v. Gillespie, 206 Md.App. 146, 166 , 47 A.3d 1018 (2012) (“The circuit court may, at its discretion, admit inadmissible evidence relied upon by an expert for the limited purpose of evaluating the validity or probative value of an expert’s opinion.”). Here, appellants sought the admission of the CODIS matches as substantive evidence—i.e., as proof that Bangora and Debreau perpetrated the crime, and not appellants.

They did not seek admission of this fact in order to explain, or as verification of, any opinion provided by Ms. Strickman, nor did they request that the trial court admit the CODIS match evidence for that purpose. Moreover, it appears to us that DNA experts reasonably rely on “match reports” not to definitely determine whether two DNA samples belong to the same person, as appellants suggest, but to determine whether there is a sufficient likelihood that they do, such that additional testing and analysis of known samples should be performed. In any event, the State contended that Debreau, and perhaps Bangora as well, were members of a home invasion gang that included Allen and Diggs. It was prepared to present evidence to this effect if the CODIS matches were introduced by defense counsel into evidence.

As a basis of its ruling, the trial court adopted the prosecutor’s contention that the admission of the CODIS matches on these facts would result in a ⁶² confusing and distracting mini-trial on gang-related issues. See Md. Rule 5-403 (“Although 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 jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”). This determination has not been challenged on appeal. 6. The Ability to Present an Effective Defense Lastly, appellants assert that the trial court’s interpretation of PS § 2-510—that it prohibited Ms. Strickman from testifying about the CODIS matches—violates their right to present a defense under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.

The Sixth Amendment provides, in pertinent part, that: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor____” The Sixth Amendment applies to proceedings in Maryland through the Due Process Clause of the Fourteenth Amendment. See Washington v. Texas, 388 U.S. 14, 19 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967) (“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense____ This right is a fundamental element of due process of law.”). Similarly, Article 21 provides, in relevant part: “That in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath.... ” As appellate courts in Maryland and elsewhere have repeatedly emphasized, these rights are “essential to due process.” Foster v. State, 297 Md. 191, 206 , 464 A.2d 986 , (1983). As the Court of Appeals in Kelly v. State, 392 Md. 511 , 898 A.2d 419 (2006) explained: The right to compulsory process does not end with the ability to subpoena witnesses to show up in court.

That ⁶³ right encompasses the defendant’s ability to elicit testimony from those witnesses present at trial: “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. The right is a fundamental element of due process of law.” Id. at 535 , 898 A.2d 419 (quoting Wilson v. State, 345 Md. 437, 448 , 693 A.2d 344 (1997))(some internal quotation marks and citations omitted). Appellate courts have also emphasized that these rights are subject to reasonable regulation.

See Kelly, 392 Md. at 535 , 898 A.2d 419 (“It is the adversarial system of justice which requires that the defendant be given every opportunity, within procedural and evidentiary boundaries, to present a defense.” (emphasis added)). In Kelly , the Court of Appeals explained that “the right to elicit certain types of testimony by opposing counsel, upon proper objection, may be denied____” Id. at 535 , 898 A.2d 419 . Further, the Court observed that: “[t]he right of compulsory process, under both the Federal and State Constitutions, though fundamental, is not absolute. It does not, for example, confer a right to present inadmissible evidence----” Id. at 537 , 898 A.2d 419 .

See also Taylor v. States, 484 U.S. 400, 410 , 108 S.Ct. 646 , 98 L.Ed.2d 798 (1988) (“The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly.”); Chambers v. Mississippi, 410 U.S. 284, 295 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973) (“Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accom ⁶⁴ modate other legitimate interests in the criminal trial process.”). For the reasons discussed above—including reliability of the evidence, potential to mislead, confuse, and distract the jury, appellants’ failure to test the samples, and Ms. Strickman’s testimony that appellants were excluded as matches—we conclude that PS § 2-510’s requirement that CODIS matches be confirmed by additional testing of the DNA samples before evidence of the match is admissible at trial was a reasonable restriction on appellants’ rights. Appellants have not convinced us that the trial court’s interpretation and application of § 2-510 to the facts before us violated their rights under the Sixth Amendment or Article 21.

For the aforesaid reasons, the trial court did not err in excluding evidence of the CODIS matches.

II

DNA Evidence and Statistical Data Allen next argues that the trial court erred in permitting Ms. Strickman to testify during cross-examination: 1) that a mixture of DNA was found on the Pittsburgh Pirates baseball hat and that Allen was a major contributor, and 2) that Allen could neither be included nor excluded as the source of the DNA found on the black t-shirt. Allen argues that the results of these analyses were admitted without supporting population genetics statistical data—i.e., the percentage likelihood that the DNA samples came from Allen— and that the trial court erred in admitting DNA evidence associated with the black t-shirt and baseball hat without such statistics. We disagree. (As an aside, we note, for purposes of clarity, that, in contrast to the CODIS methodology discussed in Part I, the DNA samples recovered from the Pirates baseball hat and the black t-shirt were tested and compared directly to DNA samples obtained from a cheek swab of Allen.) In support of his position, Allen relies on Armstead v. State, 342 Md. 38 , 673 A.2d 221 (1996).

In Armstead , the Court was asked to evaluate the admissibility of population genetics ⁶⁵ statistical data under CJP § 10-915. 10 In concluding that such statistics were admissible under the statute, the Court stated that: “We recognize that some courts have allowed use of DNA match evidence without supporting statistics. We believe, however, that the better approach is to treat the match and the statistics as inseparable components of DNA evidence.” Id. at 79-80, 673 A.2d 221 . Allen interprets this language as permitting the trial court in the instant case to admit the DNA evidence associated with the Pirates baseball hat and black t-shirt only if it was accompanied by supporting population genetics statistical data. The Court’s holding in Armstead , was, however, modified by the Court of Appeals in Young v. State, 388 Md. 99 , 879 A.2d 44 (2005).

Revisiting the issue, the Young Court acknowledged that advances in DNA technology had obviated some of the Armstead Court’s concerns about the admission of DNA evidence. After summarizing these advances in DNA analysis, the Court concluded: ⁶⁶ that there exists methods of DNA analysis employing certain markers that, when tested along a minimum number of loci, yield DNA profiles with an astonishingly small random match probability. When the random match probability is sufficiently minuscule, testimony of a match[ 11 ] is admissible without accompanying contextual statistics. Id. at 119 , 879 A.2d 44 .

Applying this standard, the Court ultimately determined that it was not error for the trial court to admit DNA evidence without supporting population genetics statistical data where the expert was able to opine, to a reasonable degree of scientific certainty, that the defendant was the source of the DNA. Id. at 103-04 , 879 A.2d 44 . Returning to the instant case, with respect to the Pirates baseball hat, the prosecution did not admit population genetics statistical data in support of its DNA evidence. However, Ms. Strickman testified that the DNA recovered from the Pirates hat was sufficient for her to opine that, to a reasonable degree of scientific certainty, “Allen is a source of the major DNA profile obtained from [the hat].” Allen thereafter had an opportunity during re-direct examination to question Ms. Strickman about the bases of her opinion, about the methods used to analyze and compare the DNA obtained from Allen and the hat, among other