Eyler, Deborah S., Kehoe, Kershaw, Robert B. (Specially Assigned) JJ.
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 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?
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.
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 testify 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 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–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 "[k]haki 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 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.
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 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 floor[ing] 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 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 mid-section" 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 Allen 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 Allen 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 recovered from the Buick. 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."
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 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.
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.
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. Two of the samples uploaded 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 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 CODIS 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 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.
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 (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/about-us/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."Wagner, at 544-45. 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; 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. 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 (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." 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.
__ Md. __, 2013 WL 4436602 at *4 n.6 (filed August 21, 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 Dist. v. Osborne, 557 U.S. 52, 62 (2009)), except in the case of identical twins. See Young v. State, 388 Md. 99, 106 (2004). 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 (quoting Gross v. State, 371 Md. 334, 339 n.1 (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 -1-31-2013-1.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 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 ...