TOMMY WHACK, JR.
STATE OF MARYLAND
Circuit Court for Prince George's County Case No. CT081845X
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, [*] Bell, JJ.
DNA is a powerful evidentiary tool and its importance in the courtroom cannot be overstated. See Maryland v. King, 133 S.Ct. 1958, 1966 (2013) (observing that DNA technology is "one of the most significant scientific advancements of our era" and its usefulness in the criminal justice system is "undisputed"). DNA evidence can place a defendant at the scene of a crime, providing a firm scientific foundation for a prosecutor's case, particularly when other evidence may be lacking. Not surprisingly, jurors place a great deal of trust in the accuracy and reliability of DNA evidence. But this evidence has the potential to be highly technical and confusing in a way that could unduly affect the outcome of a trial. We consider here whether a prosecutor's incorrect statements during rebuttal closing argument regarding DNA evidence, in a case in which that evidence was of central importance, required a mistrial.
Petitioner, Tommy Whack, Jr., was convicted of second-degree murder following a trial in the Circuit Court for Prince George's County. During the trial, the prosecution presented several witnesses, including Petitioner's cousin, who testified that Petitioner called the victim's cell phone before the killing and was walking in the neighborhood where the killing took place shortly before the crime occurred. Jurors also heard from a DNA analyst who testified that she could not exclude Petitioner as being the source of DNA recovered from the passenger armrest of the truck in which the victim was shot. In rebuttal closing argument, the prosecutor told jurors that Petitioner's DNA was present in the victim's truck, and he claimed the statistical analysis conducted by the DNA analyst supported the State's theory of the case. Petitioner objected to that argument as misstating the DNA evidence and asked for a mistrial, a request the trial court denied. The Court of Special Appeals affirmed Petitioner's conviction in an unreported opinion. We granted Petitioner's petition for a writ of certiorari, Whack v. State, 429 Md. 303 (2012), to answer the following question:
Did the trial court abuse its discretion in denying defense counsel's motion for a mistrial after the State, in rebuttal closing argument, mischaracterized the statistical significance of the DNA evidence?
For reasons we shall explain, we answer yes to that question, reverse the judgment of the Court of Special Appeals, and direct a remand of the case for a new trial.
In the early morning hours of October 21, 2008, officers from the Prince George's County Police Department responded to a 911 call about a shooting in Landover, Maryland. Sergeant Daniel Haggerty, the first to arrive, found a man lying on his back on the ground next to a pick-up truck. The man, later identified as George Jerome White, Jr., appeared to be in great pain and told Haggerty that he had been shot in his side.
Haggerty attempted to ask White questions about who had shot him, but White had trouble answering and gave only one- or two-word responses. Haggerty, aided by another officer, started to give White options that could describe his attacker, such as asking if the person was male or female. As a result of that process, Haggerty learned that White had been robbed and in what direction the gunman had fled. He also learned that the suspect was an approximately six-foot-tall black male, with light or medium skin complexion, about 20 years old, with long hair or dreadlocks. White later died from the two gunshot wounds to his torso.
Investigation revealed that, in the hour before White was shot, a series of calls were exchanged between White's cell phone and a cell phone registered to Petitioner's cousin, Bryant Whack. Eight calls were placed between the two phones from 12:06 a.m. to 1:13 a.m. on October 21, 2008, the last call having been made about twenty minutes before police arrived at the scene of the shooting. At the time White was killed, Bryant Whack, a resident of Fredericksburg, Va., was in town for a funeral and staying with Petitioner in a home not far from the scene of the shooting. Bryant Whack, called by the State at Petitioner's trial, testified that he loaned his phone that night to his cousin, Petitioner, who used the phone to call a "chat line." The chat line allowed parties to call a number and talk with strangers, potentially in order to arrange a sexual encounter.
Sometime after midnight, Petitioner told Bryant Whack that he planned to meet a woman with whom he presumably had talked on the chat line. Bryant Whack decided to accompany Petitioner and they left the house, passing by a school on the way to the encounter. Bryant Whack soon lost sight of Petitioner and decided to stay at the school and wait until Petitioner returned from meeting the woman. Not long after Petitioner disappeared, Bryant Whack heard gunshots. Petitioner appeared moments later and said to Bryant Whack that "it was a dude." Bryant Whack testified that he thought the incident was "funny" because he assumed Petitioner had gone to meet a woman and learned instead that the person he had been speaking to was a man. The two returned to Petitioner's home. They did not discuss the incident further.
On October 29, 2008, Bryant Whack and Petitioner were interviewed by police.Following the interviews, Petitioner was indicted on charges of first-degree murder, robbery, theft, and use of a handgun in the commission of a crime of violence.
The case came on for a trial before the Circuit Court for Prince George's County on August 30, 2010. In addition to hearing Bryant Whack's account of events, jurors heard from several scientific and technical witnesses called by prosecutors in an attempt to place Petitioner at the scene of the crime. A police evidence technician testified that he used swabs to collect potential DNA evidence from the interior and exterior door handles of the truck's passenger door, the passenger door armrest, the interior dashboard handle, the passenger seat headrest, the driver's seat, and the center console. Jessica Charak, a forensic chemist and senior DNA analyst at the Prince George's County Police Department's Serology/DNA Laboratory, interpreted the results of the DNA tests. The parties stipulated to Charak's expertise in forensic chemistry and DNA analysis. In addition to the samples taken from the truck, Charak possessed DNA profiles obtained from the victim White and Petitioner to use as a comparison.
Charak was unable to uncover a DNA profile in the sample taken from the exterior passenger door handle of the truck, and neither White's nor Petitioner's DNA was consistent with DNA found on the interior door handle on the passenger side. Charak discovered a partial DNA profile on the interior dashboard handle and excluded Petitioner as a person whose DNA could have been discovered there. Charak also found a prominent DNA profile, described as a "major contributor" to a mixture of profiles, in the sample taken from the passenger seat headrest. The DNA of this major contributor was consistent with White's DNA. This profile was discovered along with the DNA profiles of other, unknown people, none of whom could have been Petitioner. The chance of the major DNA profile on the headrest coming from an African American other than White was one in 212 trillion; in other words, White's DNA matched the DNA profile extracted from the passenger seat headrest.
The only sample to which Petitioner could have contributed was found on the passenger door armrest. Charak explained that she analyzed 15 different locations on the DNA samples taken from the truck and compared those samples to 15 tested locations from White and Petitioner's known DNA profiles. Two samples typically require matches at all 15 locations before "we can say that something is consistent or a match, " Charak stated. Charak concluded that the armrest contained a mixture of DNA from at least four people, with White's DNA being consistent with 14 of 15 tested locations in the DNA sample and Petitioner's DNA consistent with 11 of the 15 tested locations in the sample. In addition, the sample disclosed the DNA of at least two additional "unknown contributors." Charak stated she could not exclude Petitioner as a person who might have left DNA on the passenger door armrest. She explained the statistical significance of this as follows:
When it comes to mixtures, in saying that someone could potentially be included as a source of the mixture, we develop a statistic just as to how strong is that statement, what does it really mean.
In this particular case what we do with mixtures is we have already made the statement that all of the DNA types of the victim [White] are accounted for at 14 of the 15 locations. That's a factual statement based on the results. It is also a factual statement that [at] 11 of the 15 locations all of the DNA types of [Petitioner] are accounted for.
Now, the statistic that we do is on the mixture as an entire whole. So we ignore the fractions that we can say that those types are accounted for and we will calculate a statistic on everything, on every single DNA type that I was able to recover in the mixture.
In this case what this probability says is what are the chances that another random person may also have a DNA profile that could also be included as a potential source of the mixture? In this case it was one in 172 individuals in the African American population would also have potentially have a DNA profile that I would have to say that they also could have contributed to that mixture.
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With mixtures the more DNA types you have, in this case we are dealing with a mixture of potentially four individuals. The more DNA types you have the more combinations of those DNA types that any one of us could have in our own DNA profile. If you - - if I had a big pot and I throw all my DNA types into a pot and I'm randomly picking numbers out to make a DNA profile at the 15 locations, it is all the different combinations that I could potentially pick out of that pot. It comes down to one in 172 individuals.
Charak's DNA report, admitted into evidence by the prosecution, offered a further description of the statistical significance of the passenger armrest sample:
The chances of selecting an unrelated individual from a random population as a possible contributor to the mixed evidence sample at the ...