Circuit Court for Montgomery County Criminal Nos. 113624 and 113625
CRIMINAL LAW -- STATUTORY INTERPRETATION -- DNA COLLECTION ACT -- PUB. SAFETY ART. § 2-510 -- ADMISSIBILITY OF DNA MATCH EVIDENCE Md. Code (2003, 2011 Repl. Vol., 2014 Cum. Supp.), § 2-510 of the Public Safety Article ("PS") 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." The plain language of the statute requires that before evidence of a DNA data base "match" may be admitted at trial, the party seeking its admission bears the burden of ensuring that additional testing of the DNA samples is completed to confirm the validity of the match. Such requirement applies equally to a criminal defendant offering evidence of a DNA match to another individual. Such a restriction on the admissibility of evidence does not violate the accused's constitutional right to present a fair defense.
The opinion of the court was delivered by: Greene, J.
Barbera, C.J. Harrell Battaglia Greene Adkins Watts Wilner, Alan M. (Retired, Specially Assigned), JJ.
In this case, we address whether a criminal defendant may introduce at trial evidence of a DNA "match" to prove the identity of another individual without first establishing additional confirmatory testing pursuant to Md. Code (2003, 2011 Repl. Vol., 2014 Supp.), § 2-510 of the Public Safety Article ("PS"). PS § 2-510 provides that "[a] match obtained between an evidence sample and a data base entry may be used only as probable cause and is not admissible at trial unless confirmed by additional testing." Based on the plain language of the statute, we answer the question posed in the negative. Because of the common issues of law and fact, we have consolidated two criminal cases involving co-defendants for the purpose of this opinion.*fn1
FACTUAL AND PROCEDURAL HISTORY
Following a seven-day jury trial in the Circuit Court for Montgomery County, Petitioners, Traimne Martinez Allen ("Allen") and Howard Bay Diggs ("Diggs"), were convicted of attempted first degree murder, first degree burglary, robbery with a deadly weapon, attempted robbery with a deadly weapon, conspiracy to commit robbery, two counts of first degree assault, and two counts of using a handgun in the commission of a crime of violence, stemming from a home invasion and robbery that occurred on the night of June 23, 2009.*fn2 This incident involved the following cast of characters: Allen, Diggs, and Alex "Gutta" Harris (the perpetrators); Sentayehu Negussie and Jeremy Gordon (the victims); and Lazoya "Suave" King and Shavon Jackson (the girlfriends). The relevant facts adduced at trial were as follows:*fn3
At the time of the incident, Jackson, King, Gordon, and Negussie had known each other for about one year. For much of that time, Jackson was involved in a romantic relationship with Gordon, and King was involved in a romantic relationship with Negussie. Gordon and Negussie shared an apartment, and all four spent time there. At some point prior to the June 23, 2009 incident, both romantic relationships ended poorly. Jackson thereafter began dating Harris, and King began dating Diggs.
During the day on June 23, 2009, Jackson and Harris discussed "robbing somebody" for "money or drugs." Jackson and King nominated Gordon and Negussie as potential targets, because those two were known to keep a supply of drugs and cash at their apartment. Jackson, King, Diggs, and Harris met later that day at Jackson's apartment. There, they devised and rehearsed a plan whereby the women would invite themselves to "hang out" at Gordon and Negussie's apartment and, once there, opened the door so that Diggs and Harris could access the apartment to commit the robbery. The group "did a little act out" of the plan: Diggs and Harris would barge into the apartment, order the occupants to the floor at gunpoint, tie up Gordon and Negussie, throw a few punches and kicks for good measure, and then search the apartment for the intended loot. King called Negussie, who agreed to pick them up later that evening at a nearby Metro station.
At approximately 9:00 p.m. that evening, Allen joined the group. Driving a green Buick, Allen picked up Jackson, King, Diggs, Harris, and Chantel Fletcher, Jackson's cousin, who had arrived sometime that afternoon. The group drove to the area surrounding Gordon and Negussie's apartment, apparently to conduct reconnaissance prior to the planned attack. Allen then dropped off Jackson, King, and Fletcher at the Metro station to await Gordon and Negussie. Fifteen minutes or so later, Gordon and Negussie arrived by car at the Metro station and picked up all three women. They proceeded to drive around, procured some drugs, and used the drugs while in the vehicle. Meanwhile, Jackson communicated with Harris about their progress via text messages. After an hour or two, Gordon, Negussie, and the women went to Gordon and Negussie's apartment. Jackson was the last to enter and left the apartment door unlocked. She then alerted Harris that they had arrived.
Shortly thereafter, Harris, Diggs, and Allen, wearing bandanas over their faces, barged through the door into Gordon and Negussie's apartment. Diggs was waving a handgun and ordered everyone to "get down." Diggs and Harris then bound Gordon's and Negussie's hands behind their backs using duct tape, and kicked and punched them while on the floor.
Meanwhile, Allen, wearing a Pittsburgh Pirates baseball hat, was running in and out of bedrooms searching for and taking any items of value. Diggs apparently "pistol whipped" Gordon, who resisted, and both Gordon and Negussie were stabbed in the arm with a knife. Once the victims were restrained, Harris, Diggs, and Allen proceeded to collect various items in the apartment. The women fled the apartment at some point during the robbery. Gordon managed to escape from his duct tape binding and ran towards the sliding glass backdoor of the apartment. Shots were fired, shattering the glass door. Gordon ran through the shattered glass and was hit by a bullet in his lower back.
Meanwhile, unbeknownst to anyone involved in the robbery scheme, plain clothes officers of the Montgomery County police department were present in the area as part of an undercover investigation regarding a series of recent automobile thefts. Prior to the robbery at the apartment, two officers observed the green Buick parked on a side street and Harris, Diggs, and Allen standing behind it. Subsequently, several officers followed Harris, Diggs, and Allen, in the green Buick, to a nearby 7-Eleven convenience store. The men entered the 7-Eleven store, where they continued to be observed by officers in the vicinity.*fn4 While they were inside, another officer observed the contents of the Buick, which included a backpack, one black and one red bandana, two pairs of sneakers, and one pair of white gloves. The officers observed the Buick return to the side street but park in a different location than it had been previously.
Another officer, Sergeant Wyne, was posted near Gordon and Negussie's apartment. He observed a black Hyundai arrive at the apartment complex, and saw Gordon and the three women exit the Hyundai and enter the apartment. Five to ten minutes later, Sergeant Wyne observed the green Buick race through the apartment parking lot and go "around the corner," where another officer saw the Buick park and three men, "hoodies up," exit the Buick and "jog over" to and enter the apartment building.One of the men was wearing a backpack. Shortly thereafter, the officers saw three women "scurrying" away from the apartment building and heard two rounds of gunshots.
Harris, Diggs, and Allen chased Gordon out of the apartment, but apparently gave up their pursuit, and Gordon was met by Sergeant Wyne, who had approached the apartment after hearing the gunfire. Noticing that Gordon was bleeding profusely from his mid-section, Sergeant Wyne called for medical assistance. Recognizing Gordon as one of the individuals who had walked into the apartment from the Hyundai, Sergeant Wyne also issued a radio broadcast to look out for the three women. Additional officers arrived on the scene, and, upon entering the apartment, found Negussie bound and bleeding on the floor. Meanwhile, Harris, Diggs, and Allen ran back to the Buick, but fled when additional officers arrived. An officer apprehended Harris, but neither Diggs nor Allen were apprehended at that time. The three women had walked to the nearby 7-Eleven, where they were also arrested.
In completing their investigation of the June 23-24, 2009 incident, officers recovered various items from the apartment, the Buick, and the surrounding area. Of the numerous items collected by the police, DNA samples were taken from five of the items: two black bandanas (one found on a sidewalk and one found in the apartment stairwell), a Pittsburgh Pirates baseball hat, a black t-shirt, and an orange juice bottle.The Montgomery County Crime Laboratory analyzed the DNA samples and compared them to samples taken from the suspects and the victims. When there was no match, the laboratory uploaded the resulting DNA profiles to the Federal Bureau of Investigation's ("FBI") Combined DNA Index System ("CODIS").*fn5 The baseball hat produced a mixture of DNA profiles, the major contributor of which was determined to be Allen. In addition, two samples, one taken from one bloodied black bandana and one from the orange juice bottle, yielded DNA profiles that "matched" DNA records in CODIS associated with individuals other than any of the participants in the June 23, 2009 incident. Specifically, a DNA sample taken from the bloodied black bandana produced a "match" to a DNA profile of an individual named Richard Debreau, which had been previously uploaded to CODIS by the Montgomery County Crime Laboratory. In addition, a sample taken from the orange juice bottle produced a "match" to a DNA profile of an individual named Mohamed Bangora, which had been previously uploaded to CODIS by the Maryland State Police.
During a pre-trial motions hearing, Allen's counsel proffered to the court that Richard Debreau was a known gang member who had recently pled guilty to a "nearly identical type of robbery" as in the present case. The defense sought to have the other DNA samples taken from the crime scene compared to Debreau's DNA, because, according to Allen's counsel, "the more Richard Debreau DNA found on the scene, the more exculpatory I suggest this may well be." Allen's counsel further stated that he had submitted a request to have the Montgomery County Crime Laboratory compare all of the "unknown" DNA samples taken from the scene to Debreau's DNA profile, but the laboratory had denied the request. The prosecutor argued that the testing of additional unknown samples was unnecessary, and that the State was aware of its continuing obligation to turn over any additional discovery if new evidence arose. The court then denied Allen's general motion to compel on the ground that the defense was getting all of the discovery entitled to it. Defense counsel made no additional requests for testing of Debreau's DNA.
On the morning of trial, the defense moved in limine to prevent the State from mentioning in its opening statement that the defendants were gang members. The State advised that it would not do so, but reserved the right to introduce evidence regarding gang affiliation and practice among members if the defense introduced evidence about Debreau's DNA on the bandana taken from the scene. Specifically, the State proffered that it would introduce evidence regarding the use of "robbery kits," a practice in which gang members purposefully deposit items containing the DNA of others at crime scenes. The judge asked who would introduce evidence of Debreau's DNA. Defense counsel responded that, if the State did not, they intended to call Naomi Strickman, a forensic specialist employed by the Montgomery County Crime Laboratory to introduce the evidence.*fn6 The trial judge denied the defense's motion, stating that if the jury was "entitled to consider [evidence of Debreau's DNA], they might also be entitled to consider why it's on there."
In its case-in-chief, the State did not call an expert to present any DNA evidence. At the conclusion of its case-in-chief, however, the State moved in limine to preclude the defense from questioning Strickman about CODIS matches and specifically about the DNA profile matches to Debreau and Bangora. The State argued that such testimony would be inadmissible for three reasons: (1) Strickman lacked personal knowledge to testify regarding the DNA profile matches, because she did not complete the DNA profile comparison herself; (2) PS § 2-510 prohibits the admission of DNA matches at trial without additional confirmatory testing, which was not done in this case; and (3) the DNA evidence would be irrelevant without the addition of statistical data.
Outside the presence of the jury, Allen's counsel examined Strickman on the record. Her testimony with regard to the match to Debreau's DNA profile was as follows:
ALLEN'S COUNSEL: . . . [Y]ou are employed by the Montgomery County Police Crime Laboratory as a Forensic Scientist, correct?
ALLEN'S COUNSEL: And you, your work is mainly in the area of DNA examinations, is --
ALLEN'S COUNSEL: -- that correct? And you conducted a series of examinations related to this specific case, is that correct?
ALLEN'S COUNSEL: Now, there was an item identified as OS7, a black bandana that you examined, is that correct?
ALLEN'S COUNSEL: And it's my understanding that you found blood stains on that item?
ALLEN'S COUNSEL: Is that accurate?
ALLEN'S COUNSEL: And it's my further understanding, based upon your report, that the blood stains were excluded as having come from [the defendants, the victims, and ...