                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1998-KA-01507-SCT




DARNELL BALDWIN

a/k/a BUBBA
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT:                                   07/20/1998
TRIAL JUDGE:                                        HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED:                          LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                            RICHARD BURDINE
                                                    PEARSON LIDDELL, JR.
ATTORNEY FOR APPELLEE:                              OFFICE OF THE ATTORNEY GENERAL
                                                    BY: SCOTT STUART
DISTRICT ATTORNEY:                                  FORREST ALLGOOD
NATURE OF THE CASE:                                 CRIMINAL - FELONY
DISPOSITION:                                        AFFIRMED - 03/23/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                     4/13/2000



      BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.
      WALLER, JUSTICE, FOR THE COURT:

                                     STATEMENT OF THE CASE

¶1. Darnell Baldwin was tried and convicted of capital murder in the Circuit Court of Lowndes County and
sentenced to a term of life imprisonment without possibility of parole. He appeals to this Court raising three
issues:

      I. Whether the trial court erred in ruling that Ms. Anne Montgomery was qualified as an
      expert in DNA statistical analysis, and allowing her to testify regarding statistical analysis
      of the DNA evidence.
      II. Whether the trial court erred when it denied the defendant a continuance to procure a
      population geneticist.

      III. Whether the trial court erred when it admitted into evidence the oral statement of the
      defendant made to Lieutenant Eddie Coleman on April 12, 1996.

                                      STATEMENT OF THE FACTS

¶2. Mary Elizabeth Dill ("Liz") was abducted from her home sometime during the night of April 5, 1996.
Her husband, Bryan Dill, reported her missing shortly after 7 o'clock on the morning of April 6. Three days
later, on the afternoon of April 9, 1996, her mutilated and partially decomposed body was found on a dirt
road in rural Lowndes County, Mississippi.

¶3. Dr. Stephen Hayne, a pathologist for the Department of Public Safety and Medical Examiner's Office,
performed an autopsy on the body. Liz's upper extremities (fingers, hands, and arms) showed signs of
defensive posturing, indicating that she had attempted to protect herself from attack prior to her death. She
also had seminal fluid in her vagina, which Dr. Hayne collected and sent for DNA testing. Dr. Hayne
concluded that Liz had died as a result of a high velocity projectile which directly struck the back of her
head and that the projectile was shot by a rifle from a range no closer than three feet. Her skin was
removed over most of her face, neck, and chest area, from below the left breast, which was completely
removed, over the right shoulder. Dr. Hayne testified the removal of the skin was performed with a sharp
object following Liz's death.

¶4. The Lowndes County Sheriff's Department learned that Liz had visited the doctor on April 5, 1996,
where she was treated for significant back injuries. She was prescribed three different medications, the
combined effect of which would have made her drowsy and lethargic. Liz had sent her 15-month-old
daughter, Taylor, to stay with her mother while she recovered.

¶5. Liz's husband, Bryan, left his wife at home alone and went to a cabin (commonly referred to as "the
shack") that he and some of his hunting buddies rented. Bryan arrived at the shack around 8:30 or 9:00
p.m. on April 5, 1996, and did not leave until 5:30 the next morning. He and his friends cooked out and
shared a keg of beer. The deputies interviewed the party attendees, learning that Darnell Baldwin and one
of his brothers, Clint (also indicted, tried, and convicted of capital murder), arrived at the party in Baldwin's
1975 Monte Carlo and stayed for 15-20 minutes. One or both of the Baldwin brothers spoke to Bryan Dill
while they were at the shack. Baldwin drove his 1975 Monte Carlo to the shack again in the early morning
hours of April 6. Baldwin never left his car the second time he appeared at the shack and did not talk with
Bryan Dill.

¶6. Having identified Baldwin as someone who had been at the shack, the deputies went to his home on
April 9 to talk with Baldwin about the night of Liz's disappearance. During the interview the deputies noted
that Baldwin was visibly shaken and that he was sweating, trembling, and chain smoking. Baldwin
repeatedly refused the deputies' invitation to come to the Sheriff's Department for an interview, as well as
the deputies' request to look inside the Monte Carlo car, which was parked in the yard. The deputies
believed Baldwin's actions were suspicious. Unfortunately, after the deputies left Baldwin's house to arrange
surveillance, Baldwin left in the Monte Carlo, and the Sheriff's Department was not able to locate the car
until several months later.
¶7. On April 12, the deputies arrested Baldwin at his home for an unrelated armed robbery. After he was
read his Miranda rights, Baldwin chose to talk to the Sheriff's Department. There was no evidence that the
officers used threats, coercion, or force to make Baldwin talk. When asked the whereabouts of his car, he
told the officers that his girlfriend had taken it to the Wal-Mart. Baldwin was handcuffed and remained on
the premises while the deputies executed a search warrant of the residence. When no one returned with the
car, the officers again questioned Baldwin about the location of the car. Baldwin offered to show the
officers where his girlfriend may have taken the car. Over two hours after he was arrested and read his
rights, Baldwin was placed in a patrol car with two officers who had not been present when Baldwin was
advised of his right against self-incrimination. Baldwin was asked to direct the officers to the location of his
car. He first directed the officers to some apartments, but the car was not present. The officers asked
Baldwin which apartment his girlfriend lived in, and Baldwin replied that he was not sure and that maybe she
lived in a house in the same general area to which he had led the deputies. After riding around in the vicinity
for a short while, the officers abandoned their search for the car with Baldwin.

¶8. It was later learned that Baldwin had driven his car to his friend Richard Jones' house on April 10,
1996, claiming that he wanted his friend to look at the car because there was something wrong with it. The
car remained parked at Jones' house until April 16 or 17, 1996, when Jones returned home to find the car
gone. On April 17, 1996, Baldwin's lawyer telephoned the police and reported the car stolen. Over four
months later on August 18, 1996, the car was found in Pickens County, Alabama. The car was completely
burned from hood to trunk, including the tires, with only the hull remaining.

¶9. Lonnie Harris testified at trial that Baldwin told him that he had poured gasoline on the car and burned
it. Harris was a fellow inmate at the Lowndes County Jail where Baldwin was imprisoned after his arrest.
Harris further testified that Baldwin told him that Baldwin had raped, murdered, and "cut up" a woman and
that the woman's husband had paid him $1,000 to do so.

¶10. The semen recovered by Dr. Hayne and the blood drawn from Baldwin were sent to a forensic DNA
and molecular testing firm known as Gentest (now called Reliagene Technologies). At trial, Anne
Montgomery, a molecular biologist employed by Reliagene, was qualified as an expert in molecular biology
and DNA analysis. Montgomery testified that, after comparing the semen and the blood, she was unable to
exclude Baldwin as the sperm donor. Montgomery further opined that it was 19 million times more likely
that Baldwin was the sperm donor than any other individual of the African-American population. Stated in a
more precise manner, of all of the members of the African-American population, the average occurrence of
the genotype matching Baldwin's DNA is one in 19 million. See Hughes v. State, 735 So. 2d 238, 264-
65 (Miss. 1999).

                                        STANDARD OF REVIEW

¶11. The trial court has discretion in determining whether an expert is qualified to testify. Hall v. State, 611
So. 2d 915, 918 (Miss. 1992); Goodson v. State, 566 So. 2d 1142, 1145 (Miss. 1990). This Court
should not reverse the trial court's ruling unless it can be shown that the trial judge abused his discretion or
that the expert was clearly not qualified. Genry v. State, 735 So. 2d 186, 198 (Miss. 1999).

¶12. This Court reviews the denial of a continuance under an abuse of discretion standard and will not
reverse a denial unless manifest injustice has resulted from the failure to grant a continuance. Johnson v.
State, 631 So. 2d 185, 189 (Miss. 1994).
¶13. A trial court is also given deference in the admissibility of an incriminating statement by a criminal
defendant. In Hunt v. State, 687 So. 2d 1154, 1160 (Miss. 1996), this Court held that the defendant
seeking to reverse an unfavorable ruling on a motion to suppress bears a heavy burden. The determination
of whether a statement should be suppressed is made by the trial judge as the finder of fact. Id.
"Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial
judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the
overwhelming weight of the evidence." Balfour v. State, 598 So. 2d 731, 742 (Miss. 1992); Alexander
v. State, 736 So. 2d 1058, 1062 (Miss. Ct. App. 1999).

                                                 DISCUSSION

      I. Whether the trial court erred in ruling that Ms. Anne Montgomery was qualified as an
      expert in DNA statistical analysis, and allowing her to testify regarding statistical analysis
      of the DNA evidence.

¶14. Generally, on a challenge to the admissibility of DNA evidence, a trial court will conduct a hearing
pursuant to this Court's decision in Polk v. State, 612 So. 2d 381, 390 (Miss. 1992); such a hearing was
held in this case. Under the test adopted in Polk, the Court should ask whether (1) there is a theory
generally accepted in the scientific community which supports the conclusion that DNA testing can produce
reliable results, (2) there are techniques capable of producing reliable results in DNA identification, and (3)
in the case before the court, whether the testing laboratory perform generally accepted scientific techniques
without error in the performance or interpretation of the tests. Id.

¶15. In Hull v. State, 687 So. 2d 708, 728 (Miss. 1996), this Court went one step further and addressed
the issue of admissibility of statistical probabilities in DNA evidence. The Court concluded:

      if the witness can put the meaningfulness of a match in terms of strong or weak, then it is unreasonable
      to prevent the parties from putting on statistical evidence to show how strong or how weak the
      evidence is. Without this evidence, the ability of the jury to use this evidence may be diminished to
      such a degree as to be unhelpful to the trier of fact under Rule 703, or more prejudicial in that a jury
      may think it needs no evidence other than the "conclusion" that the defendant's DNA was found upon
      the victim's person. Accordingly, we hold that where the trial court finds that evidence of a DNA
      match is admissible as relevant, the court should also allow scientific statistical evidence which shows
      the frequency with which the match might occur in a given population.

The trial judge in this case followed the dictates of Hull in finding that the evidence of statistical probability
was relevant and admissible in helping the trier of fact interpret the DNA evidence presented by
Montgomery.

¶16. Baldwin's argument is, however, that Montgomery was not qualified to give those statistics. During the
course of the Polk hearing, defense counsel argued that Montgomery could be qualified as an expert in
molecular biology and DNA matching, but was not qualified to testify as an expert on the population
statistics. Defense counsel specifically pointed out that Montgomery had used population databases created
and validated by other statistical experts. Montgomery acknowledged that in her published scholarly articles
in conducting forensic analysis of DNA such as for her testimony in the case sub judice, she had relied on
other statistical experts for their opinions on the population studies and the associated linkages at issue in
those studies. She, in essence, uses a "canned formula" and "crunches" the numbers to determine the DNA
profiling. Montgomery relied on population databases and statistics in her determination that it was 19
million times more likely that Baldwin was the sperm donor than any other individual of the African-
American population.

¶17. The State pointed out that Montgomery regularly testified to the statistical probabilities of DNA
matching using population statistics. Montgomery testified:

      In the early days, and I refer to the early '90s as the early days, we had limited genetic markers and
      there were limited populations studies so there were concerns about the population database issues. .
      . . Now there is an exhaustive amount of scientific literature for the genetic markers we use in forensic
      science that have shown independent of each other these studies, these markers are valid. They do
      adequately represent given populations and can be used in estimating a DNA profile frequency.

In response to defense counsel's questioning of Montgomery's expertise, the prosecutor argued to the judge
that:

      [w]hat [defense] counsel seeks to do is cast Ms. Montgomery or require that Ms. Montgomery fulfill
      the qualifications as a professional mathematics statistician. That is not what she is. She is a DNA
      analyst. A DNA analyst does some of that work. As she has testified, the numbers are out there. It's
      simply a matter of crunching those numbers. When a situation becomes more involved, what she has
      to do is consult a statistical expert. That does not make her any less of an expert or any less
      competent to express her opinion on these numbers that she crunches and has been recognized as an
      expert in crunching in 98 percent of the cases she's testified to. DNA analysis necessarily includes that
      testimony concerning the percentage of the match. Without such, it's meaningless.

¶18. The trial judge ruled that Montgomery was an expert in the fields of molecular biology and DNA
analysis. He also stated that defense counsel's cross-examination during the hearing concerning her use of
other experts' population statistics went more to Montgomery's credibility than competence to testify as an
expert under M.R.E. 702. The judge therefore concluded that she would be able to testify about the
population statistics or DNA frequency profile that she had calculated.

¶19. The trial judge did not abuse his discretion in determining that Montgomery was qualified as an expert
in DNA analysis or that she was competent to testify as to the population statistics in this case. While
Baldwin correctly concludes that an expert in DNA analysis is not an expert in population genetics or
population statistics, it was not proved that Montgomery was testifying outside her field of expertise.

¶20. Rule 702 of the Mississippi Rules of Evidence states that "[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise." M.R.E. 702. In this case, Montgomery had specialized knowledge of DNA
analysis to assist the trier of fact. In fact, she has testified as a DNA expert in over 100 cases and has given
the population statistics in 98 percent of those cases. Further, Rule 703 provides that facts or data relied
upon by the expert need not be admissible, as long as they are "of a type reasonably relied upon by experts
in the particular field." M.R.E. 703. It is clear from the testimony and arguments presented that DNA
experts in the routine course of their analysis use prepared population databases to determine the
population frequency of a particular match, and testify to statistical probabilities based on those databases.
For example, in Hughes v. State, 735 So. 2d 238, 264-68 (Miss. 1999), this Court addressed the issue
of DNA frequency profile. In that case, Montgomery also was qualified as an expert and testified to the
population frequency of the DNA match. Hughes pointed out the logical fallacies and routine errors made
by prosecutors and DNA experts in presenting population frequency profiles to jurors. Although the present
case does not deal specifically with those types of issues, it is important to note that allowing Montgomery
to testify to population frequency is not outside the scope of her expertise. Therefore, it was not an error or
an abuse of discretion for the trial judge to accept Montgomery as an expert or to permit her to give her
opinion of the population frequency profile.

¶21. The comment to M.R.E. 703 provides that the bases of opinions by experts are subject to cross-
examination, which is an effective tool to challenge the facts or data relied upon by an expert. Baldwin had a
court-appointed DNA expert, Dr. Stephen Case, to assist him with his case. While Dr. Case was able to
aid Baldwin and his counsel in his vigorous cross-examination of Montgomery concerning the DNA match
and the population frequency profile, the defense did not cross-examine Montgomery on the validity of the
population databases on which she relied. Also, while Dr. Case was present at trial and seated at the
defense table, Dr. Case was not called as a witness to refute the testimony of Montgomery. That decision
was within the province of the defendant. In light of Montgomery and Dr. Case's similar fields of expertise
and the routine use of the population databases that Baldwin hopes to challenge, it is likely that Dr. Case,
using the same "canned" formulas as Montgomery, was unable to challenge Montgomery's conclusions to
give a favorable outcome to Baldwin on the DNA evidence.

      II. Whether the trial court erred when it denied the defendant a continuance to procure a
      population geneticist.

¶22. Baldwin's second assignment of error is an extension of his first. Here Baldwin argues that he should
have been granted a continuance in order to procure an expert to challenge the population statistics relied
upon by Montgomery in making her population frequency conclusion. In his brief, Baldwin alleges that Dr.
Stephen Case, the DNA expert chosen by the defendant and appointed by the court to aid in his defense,
had no expertise in population genetics and was not able to assist Baldwin in preparation of his defense in
the area of population genetics.

¶23. Baldwin alleges that Hull necessitates the admission of population statistics evidence. In Watts v.
State, 733 So. 2d 214 (Miss. 1999), this Court specifically noted that it was not an abuse of discretion for
a circuit court to allow evidence of DNA matching without requiring statistical analysis of the match (citing
Polk v. State, 612 So. 2d 381, 390 (Miss.1992)).

¶24. In considering this assignment of error, it is important to note that the trial judge agreed that Baldwin
could have another expert to address the population statistics, including the underlying data used to
determine population frequency. Defense counsel requested the appointment of the additional expert on
June 26, 1998. On June 29, 1998, at a hearing on the motion for continuance, the trial judge noted in his
ruling that he had already agreed that Baldwin could have another expert. He further stated that defense
counsel had assured him he would attempt to contact statisticians at Mississippi State University to assist
counsel in cross-examination of Montgomery, but that counsel had made insufficient efforts to locate and
obtain an expert. Nevertheless, the judge ruled that Baldwin would still be allowed to present another
expert, as long as that was done before the date of trial, scheduled on July 7, 1998.

¶25. In denying the motion for a continuance, the judge went on to point out that defense counsel had been
involved in the case for over a year and had known for some time prior to the late motion for a continuance
that Montgomery would testify concerning the population statistics.(1) Most importantly, the venue had been
changed and the trial arranged to begin in Harrison County on July 7, 1998, a mere eight days after
Baldwin's motion for a continuance. Baldwin's counsel suggested during the hearing that it would take them
three to six months to obtain expert testimony to challenge the population statistics. Given the change of
venue and the considerable arrangements that must have attended the setting of a trial date, as well as the
fact that the motion for a continuance was made so close to the date of trial, it does not appear that the
judge abused his discretion in denying the motion. In light of the fact that the trial judge allowed for an
additional expert for Baldwin if he had procured such in a timely fashion, no manifest injustice resulted.

¶26. By extension, there is no indication that the Baldwin's proposed experts on population genetics could
have refuted or successfully challenged Montgomery's testimony in this case. Baldwin's attempts to discredit
Montgomery's testimony by challenging the population data forming the basis of her expert opinion amounts
to no more than the "battle of the experts," which has become increasingly common in both criminal and civil
litigation. Given unlimited time and money, there is no end to the amount of expert testimony that a criminal
defendant could obtain. By contrast, the State would have the same opportunity. Even if Baldwin had
secured another expert on population statistics, the State could then have secured its own expert. In light of
the excess of time and money attendant to the battle of the experts, it is even more apparent that no
manifest injustice resulted from the denial of a continuance, particularly since there is no showing that such
an expert could have assisted the trier of fact.

      III. Whether the trial court erred when it admitted into evidence the oral statement of the
      defendant made to Lieutenant Eddie Coleman on April 12, 1996.

¶27. Baldwin challenges the trial judge's admission of the statements concerning the whereabouts of his car
that he made to the Sheriff's Department several hours after his arrest and while he was in the patrol car.
The statements that Baldwin made to the officers were obviously untruthful, and they were introduced at
trial in an effort to show that Baldwin had concealed his crime by hiding and later destroying his car.

¶28. "A criminal defendant assailing the voluntariness of his statement has a due process right to a reliable
determination that the statement was in fact voluntarily given." Gavin v. State, 473 So. 2d 952, 954
(Miss.1985); Smith v. State, 737 So. 2d 377, 382 (Miss. Ct. App. 1999). The trial judge sits as the trier
of fact and must determine whether the incriminating statement was freely and voluntarily given. The judge
should determine whether the criminal defendant was advised of his rights, including the right against self-
incrimination as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
. Then the judge should ascertain, under a totality of the circumstances and beyond a reasonable doubt, that
the defendant's statement was freely and voluntarily given, and was not the result of force, threat, or
intimidation. See Smith v. State at 382.

¶29. In the present case, the trial judge conducted a suppression hearing outside the presence of the jury, as
required by law. See Frost v. State, 483 So. 2d 1345, 1350 (Miss. 1986). During the hearing, Greg
Wright and Frank Baker of the Lowndes County Sheriff's Office testified that they had advised Baldwin of
his Miranda rights, and that he freely and voluntarily waived his rights and chose to speak with the officers
concerning the whereabouts of his car. Since Baldwin did not testify to refute those statement,(2) the trial
judge's ruling to admit into evidence the statements made by Baldwin is not manifestly erroneous or
reversible error.

¶30. Baldwin's argument on appeal is that neither officer who actually heard and testified to the incriminating
statements was present when Baldwin was advised of his rights, and that, given the lapse in time and the
fact that Baldwin's custody was given over to different officers than the ones who originally arrested him,
Baldwin should have been advised of his rights a second time. Baldwin relies on Underwood v. State, 708
So. 2d 18, 29-30 (Miss. 1998). In that case, Underwood was questioned by two officers for 30-45
minutes. The officers left the room when Underwood did not reveal anything about the burglary at issue.
Then, an officer that Underwood knew went into the room and convinced Underwood to confess to his
involvement in the burglary. The Court ruled that Underwood had knowingly and voluntarily incriminated
himself. In that case, the third officer had asked Underwood if he had been advised of his rights and
understood them. Underwood never indicated a desire to cease the questioning or have an attorney
present, and Underwood was re-Mirandized on each subsequent day of questioning.

¶31. Nevertheless, neither Underwood nor Miranda requires that a criminal defendant be advised of his
rights every time there is a brief pause in questioning. Miranda simply requires that "[i]f the individual
indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease." 384 U.S. at 473-74, 86 S. Ct. at 1627-28. In the present case, Baldwin was in
continuous custody from the time of his arrest until the time that he was placed in the car with Officers
Mulligan and Coleman. It is not clear how much or how frequently the officers of the Sheriff's Department
questioned Baldwin during the hours when all were present at his house to execute the search warrant. It is
clear, however, that Baldwin knew the officers wanted to find the 1975 Monte Carlo; the officers' questions
were all related to that purpose, beginning immediately after Baldwin was read his rights. Baldwin never
indicated at any time to the officers that he wished to invoke his rights or that he preferred not to answer
their questions concerning the whereabouts of his car. Because Baldwin was advised of his rights, but never
invoked those rights, the trial judge was not manifestly erroneous in ruling that Baldwin had freely and
voluntarily made the statements to Coleman, and that Coleman could testify to the same.

                                             CONCLUSION

¶32. The trial judge did not abuse his discretion in allowing Anne Montgomery to testify concerning the
DNA frequency profile, nor in denying Baldwin's motion for a continuance. Neither did the judge err in
refusing to suppress the statements that Baldwin made to the police about the location of his car. Therefore,
Baldwin's conviction and sentence and the judgment of the Lowndes County Circuit Court are affirmed.

¶33. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT
POSSIBILITY OF PAROLE AFFIRMED.

     PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, MILLS AND
     COBB, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
     DIAZ, J., NOT PARTICIPATING.
1. Defense counsel alleged that he was making the last minute motion in light of his having learned that
Montgomery was changing her statistical conclusions during a visit to Reliagene on June 22, 1998. It should
be noted, however, that Montgomery changed her original opinion of one in 712 million to one in 19 million,
a more conservative number which reflected the consideration of another unknown donor or variable, and
actually benefitted Baldwin, as it made him less likely the donor of the sperm.
2. In an effort to protect Baldwin's Fifth Amendment rights, the trial judge ruled that Baldwin could testify at
the suppression hearing for the limited purpose of establishing deficiencies in the Miranda warning without
subjecting himself to cross-examination at the trial.
