The opinion of the court was delivered by: McRAE, Justice
DATE OF JUDGMENT: August 9, 1996
TRIAL JUDGE: HON. R.I. PRITCHARD, III
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: RICHARD L. DOUGLASS
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY-DIRECT
APPEAL DISPOSITION: AFFIRMED IN PART; REVERSED IN PART- January 28, 1999
MOTION FOR REHEARING FILED:
¶1. James Earnest Watts was found guilty of capital murder and sentenced to death in the Circuit Court of Marion County on August 9, 1996, by a jury impaneled in the Circuit Court of Lincoln County. He now appeals to this Court, raising twenty assignments of error. Most of the issues he raises are procedurally barred or otherwise waived. We find that the circuit court failed to properly instruct the jury regarding the three sentencing options available in capital murder cases pursuant to Miss. Code Ann. § 97-3-21(1994), and therefore reverse as to the sentencing phase. There is no merit to the remaining issues raised. Accordingly, we affirm the jury's finding that Watts was guilty of capital murder and reverse and remand for re-sentencing proceedings, consistent with this opinion.
¶2. The semi-nude body of ten-year-old Vanessa Nicole Lumpkin was found stuffed in the roots of a tree along a creek bank in Columbia, Mississippi around noon on December 20, 1993. Alex Fairley discovered the body while taking a short cut home from the nearby Hendricks Street Apartments, known as "the projects." He ran back to the apartments, showed his friends what he had seen, and Ruby Lewis called the police. Just a few minutes earlier, police had received a report that the child was missing.
¶3. Officers Tim Singley and Doug Brewton of the Columbia Police Department were the first to arrive at the scene. They immediately roped off the area around the body. Detective Carroll Bryant, along with Detective James Carney, next arrived. Detective Bryant indicated that the ground was scuffled, but there was nothing from which a footprint could be cast. There was very little blood on or around the body. A little green shirt that the child had been wearing when she went to bed the night before was found about thirty yards away, west of the projects and the creek, near the Rest Haven Cemetery.
¶4. Anthony Lumpkin identified his daughter's body at the scene. Marion County Coroner Norma Williamson took measures to protect the body from contamination, wrapping it in a sheet before she moved it. Rigor mortis had set in. Both Williamson and Mississippi State Highway Patrol Crime Scene Specialist Don Sumrall indicated that there was a bloody discharge in the genital and rectal areas. Based on the vaginal drainage, Williamson determined that the child appeared to have been sexually abused. She observed marks on the child's neck and what appeared to be ligature marks on her wrists. There was an abrasion on the right side of her chin, and blood on her tongue where she had bitten it.
¶5. State Medical Examiner, Dr. Emily Ward, performed an autopsy on the child. Cause of death was found to be cardiorespiratory arrest due to strangulation, air embolism and a perineal laceration. Based on an external examination, Dr. Ward initially had thought the cause of death was strangulation, based on linear abrasions on the neck and petechial hemorrhages on the eyelids. However, an internal examination revealed that bubbles in the arteries of her heart had caused a fatal air embolism. Tracing the path of bubbles in the bloodstream, Dr. Ward determined that a tear in the vaginal wall was the source of the embolism. Bruising in the perineal area indicated that penetration occurred while the child was still alive. Dr. Ward, however, was unable to determine whether penetration had involved a penis or some other object. She explained that there was very little blood because the child would not have lived long after the vaginal tear occurred. She confirmed Coroner Williamson's observation that the injuries on the child's wrists were caused by some binding.
¶6. Vanessa Nicole Lumpkin's grandfather, Joe Geeseton, had died at the VA Hosptial in Jackson on December19, 1993. Nicole, along with many other family members and friends, was staying with her grandmother, Ruthelle Geeseton, who lived just around the corner from the Lumpkins. Pauletta Baxter, a close friend of the family who was Watts' estranged girlfriend and mother of his child, had been staying at the Geeseton house because of problems she was having with him. She put Nicole, along with her daughter, Victoria, to bed between midnight and 1:00 a.m. in the back bedroom at the Geeseton house. Mrs. Geeseton awakened at 4:00 a.m. She testified that when she checked on the little girls, she noticed that the closet light, kept on for Baxter's and Watts' daughter, Victoria, was not on and that Nicole wasn't there, but assumed that she had gone home with her parents. Baxter, too, testified that everyone at the Geeseton house assumed that the child was at the Lumpkins' house. The Lumpkins thought she was still asleep at her grandmother's house, since she had been up very late the night before and Gwen Geeseton Lumpkin had left her there when she went home around 1:30 a.m. Anthony Lumpkin stated that when the child stayed at her grandparents, she usually awakened early and walked home, so she had not been missed there. Apparently, no one saw her leave the house. After Lumpkin called the Geeseton house, and it was determined that she was not at either house, Pauletta Baxter called the police to report the child missing.
¶7. Anthony Lumpkin suggested to authorities that they question Watts because of the way he watched the child when she danced and because he had seen Watts riding a bicycle that recently had been stolen from her. Detective Bryant testified that they interviewed several other people in addition to Watts, but never came up with any other suspects. David McDaniel, an investigator with the Columbia Police Department, obtained consent from Watts' mother to search Watts' room at her house. There they found the multi-colored jacket Watts reportedly had been wearing the evening before and which his mother identified as his, as well as some tennis shoes, a towel and a pillow case. Noting that there had been some rain in the early morning hours of December 20, McDaniel testified that the jacket was still damp.
¶8. Willy Carter testified that he had picked Watts up at his house and dropped him off
"at Hendricks Street, near "the projects" at around midnight and did not see him again until 1:00 or 1:30 p.m. the next day. He stated that it was drizzling and rainy at the time. Catherine Bullock heard Watts "bamming" on the door of her neighbor in "the projects," Pauletta Baxter, at around 12:00 or 12:30 a.m. He was wearing a multi-colored patchwork jacket. She testified that he was acting strange that night, but stayed around for awhile with a group of people who were drinking and shooting off fireworks. He wanted to talk with her about his relationship with Baxter. When he asked her where Baxter was, she told him that she was at the Geeseton's. She testified that he came back about two hours later, stating:
"Squirrel left. And when he came back, he was gone I say about two hours. He came back and he said, "Michelle," he said, "I done something." I said, "What?" And he said, "I done something." He said, "And I need to tell somebody." I said, "Well, what have you did?" But he never told me. And he told me he was about to go home. And at that time Squirrel didn't have on the same clothes that he had on when he left. "He was no longer wearing the multi-colored jacket, and instead was wearing a T-shirt and some kind of jogging pants."
¶9. Tyrone Alexander had noticed Watts standing around the apartments that night, "looking kind of strange." Watts' second cousin, Travis Smith, likewise placed him at the projects, near Building D, after midnight, noting that Watts was wearing a multi-colored jacket he hadn't seen before.
¶10. Watts was picked up for questioning by police on December 20th. He was questioned by Officer Sumrall and consented to having his clothing examined for evidence. He was wearing stained black shorts, as well as a T-shirt, briefs, socks, sweat pants, sweat shirt, a regular shirt and some overalls. Sumrall did not notice whether any of the clothing touched the floor when Watts removed it. Watts put his underwear in a bag himself. He handed each of the other items as he removed them to Sumrall, who put them in the bags. Sumrall wore gloves while the evidence was being collected.
¶11. At the Mississippi State Crime Laboratory, Debbie Haller examined and tested Watts' clothing for blood, seminal fluid, hair, fibers and any other identifying material. Blood stains were identified on the back of the jacket. Stains on the inside front of Watt undershorts, a few inches below the left side of the waistband, tested positive for blood with the possible presence of feces.*fn1 Haller further testified at length about the precautions taken in the laboratory to prevent contamination of evidence being readied for DNA testing. Samples collected from Watts and the victim, as well as samples of stained areas from Watts' jacket and undershorts, were sent to GenTest Laboratories in Metarie, Louisiana for DNA testing. The lab used the polymerase chain reaction (PCR) method of amplifying DNA to type genetic material derived from the evidence submitted. From the test results, it was concluded that the victim could not be excluded as the source of the DNA obtained from the blood stain samples taken from Watts' jacket. Watts, however, was excluded as a possible "donor" of the stains on the jacket. As to the samples taken from blood stains on his undershorts, the results indicated a mixture of two types, one consistent with the genetic markers identified as belonging to Watts, and the other, consistent with those of the victim. Based on the product rule of determining the statistical probability "that another individual picked at random off the street could also produce the ten-test stain that was found on the jacket," the State's expert witness, Dr. Martin Tracey, calculated that one in a little over eight hundred thousand African Americans would match. Using the more conservative ceiling approach to calculating population frequency, he previously had calculated the likelihood of a match at one in forty thousand. Dr. Sinha, president of GenTest Labs, based on a testing for ten different genetic markers and applying the ceiling principle, calculated that there was a one in 876,000 chance in the black population group of finding another individual whose genetic profile would match, and a one in twelve million chance in the white population.
¶12. Watts was indicted by a grand jury in Marion County on April 19, 1994 for the killing of Vanessa Nicole Lumpkin, a female child under the age of twelve years old, while in the commission of a sexual battery in violation of Miss. Code Ann. § 97-3-19(2)(e)(1994). After Watts was granted three motions for continuances, his trial was scheduled for August 29, 1995. A mistrial was declared, however, when the venire panel was exhausted before a jury was selected. Trial was reset for March 4, 1996. At that point, Watts was granted still another motion for a continuance, arising from the defense's ore tenus motion to quash the venire panel. As the circuit court further stated in his written opinion:
"On February 9, 1996, it was discovered that Lincoln County had exhausted the potential jurors in the jury box and on February 12, 1996, Delta Computer Company incorrectly advised the Lincoln County Circuit Clerk to fill the jury box with the first seven hundred (700) names from the jury wheel, and the venire panel for this case was chosen from those seven hundred (700) names. "That the venire panel so drawn from the jury box was comprised only with persons with the name beginning "A", "B", or "C". That the State and the Defense is entitled to a venire that is a random selection of jurors in Lincoln County and the jury wheel should have keyed in a number to ensure enough jurors to make the jury box show a random sample. "That the State and the defense agree that the methodology employed systematically excluded any qualified electors whose name began with the letters "E" through "Z", and that selection of this panel would have been reversible error. "The circuit court found that the delay in the proceedings was not chargeable to either party for purposes of the speedy trial rule. Trial, originally re-slated for June 24, 1996, was reset for August 5, 1996, because of a scheduling conflict with the defendant's DNA expert."
¶13. Trial was held on August 5-9, 1996. A jury was impaneled in Lincoln County and trial was held in Marion County. At the close of the State's case, Watts' motion for a directed verdict was denied by the circuit court. The jury found Watts guilty of capital murder.
¶14. During the sentencing phase of the trial, the jury heard only the testimony of Watts' mother, who briefly testified that he was raised by her and his grandmother, that he was the best of her eight children, and that he had been popular in high school, having been voted by his classmates as "best dressed" and receiving a standing ovation at his graduation. The jury then unanimously found that at the time of the commission of the capital murder:
"1. That the defendant actually killed Vanessa Nicole Lumpkin; "4. That the defendant contemplated that lethal force would be employed."
The jury unanimously found further that the aggravating circumstances of:
"1. The Capital Murder was committed while the defendant was engaged in the Commission of the Crime of Sexual Battery or in an attempt to Commit the Crime of Sexual Battery; [and] "2. The Capital Murder was especially heinous, atrocious or cruel; "are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances, and we further find unanimously that the defendant should suffer death."
The circuit court entered an Order of Conviction on August 9, 1996. Watts filed a motion for j.n.o.v., or in the alternative, for a new trial, on August 28, 1996. The motion was denied the same day. Aggrieved by his conviction and sentence, Watts now raises twenty assignments of error.
I. WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO PRECLUDE PCR EVIDENCE
¶15. Watts presented only one witness at trial, DNA expert Dr. Ronald Acton, whom he called upon to refute the DNA evidence introduced by the State. In this appeal, as well, Watts largely predicates his assertion that he was deprived of his constitutional rights upon various issues arising from the State's presentation of its DNA evidence. He first contends that the polymerase chain reaction (PCR) method of typing DNA evidence used by GenTest Labs to test the evidence in this case has not been accepted by this Court as a generally accepted forensic technique capable of producing reliable results, and thus, the circuit court should not have admitted the evidence.
¶16. Watts filed a motion in limine to preclude evidence of DNA testing based on the PCR method of genetic typing. At the hearing on the motion, the circuit court heard extensive testimony by Dr. Acton as well as by Dr. Sinha, who operates the laboratory where the tests were made and who analyzed the evidence in this case. Based on that testimony, using the analysis set out in Polk v. State, 612 So. 2d 381 (Miss. 1992), the circuit court found that evidence of DNA testing, regardless of whether the PCR or RFLP method was employed, was admissible.
¶17. This Court first found the Restriction Fragment Length Polymorphism (RFLP) method of typing DNA evidence to be admissible in Polk.
¶18. Watts emphasizes the third prong of the Polk test, looking for error in the preparation of the DNA samples used in his case. His expert, Dr. Acton, focused on the susceptibility to contamination inherent in the PCR amplification process. Dr. Sinha and Pat Wojtikieiac, however, explained the controls in the laboratory process which are designed to identify - and minimize- any instances of contamination. Deborah Haller further demonstrated the precautions taken by the State Crime Lab to safeguard against contamination of the samples prepared for the genetic laboratory.
¶19. Watts, however, attempts to bolster his case by misconstruing evidence and mis-characterizing witness testimony in the record, speculating where contamination might have occurred. He suggests that Don Sumrall could have contaminated the evidence by not wearing protective coverings on his shoes while "traips[ing] about the crime scene" since the sort of rectal and vaginal injuries the child suffered "would have caused significant bleeding." Crime scene pictures show only a small trickle of blood coming from the perineal area; witness testimony indicated there was little blood at the scene and the State Medical Examiner testified that because death would have occurred swiftly after the injury, there would have been very little bleeding.
¶20. Watts further mis-characterizes Sumrall's testimony about Watts' removal of his clothes, stating that "He [Sumrall] further conceded that the undershorts might have dropped to and touched the floor of the small office during the collection." Rather, when asked, Sumrall testified that he didn't notice whether Watts' undershorts touched the floor before he put them in the bag.
¶21. He further suggests that the victim's blood may have been present on his jacket because Sam Howell, Chief of Toxicology at the Mississippi Crime Lab, assisted Dr. Ward with the autopsy one day and the next, collected three items of evidence, including the jacket! While this raises matters of Mr. Howell's personal hygiene that were not made part of the record, his contention is also refuted by Deborah Haller's testimony regarding the rigorous protocol followed to avoid contamination in the crime lab.
¶22. This Court has found that PCR testing of DNA samples produces reliable results in a forensic setting. The record contains no evidence of error in the process of collecting and testing the DNA evidence in this case. We therefore do not find the circuit court to be in error for denying Watts' motion to suppress the evidence.
II. WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO STRIKE THE PROSECUTION'S DNA PCR EVIDENCE PERTAINING TO THE APPELLANT'S UNDERSHORTS
¶23. Watts asserts that circuit court erred in overruling his motion to strike the State's PCR evidence regarding stains found on the inside of his undershorts. At trial, evidence was presented that the undershorts Watts was wearing when he was taken in for questioning contained a mixture of DNA evidence that was consistent both with his genetic profile and that of the victim. Although statistical data was introduced about the DNA evidence which was identified as consistent with the victim's on Watts' jacket, no corresponding statistical data on the mixed sample found on the inside of Watts' underwear was offered by the State. While the circuit Judge found that statistical data had probative value, he also found that because of the mixed sample on the shorts, Dr. Tracey could not generate any statistical data with the same certainty that he was able to achieve on the jacket. He further ruled that even without statistical data, evidence of DNA samples taken from Watts' undershorts still had probative value and thus denied the defendant's motion to strike. Based on Hull v. State, 687 So. 2d 708 (Miss. 1996), Watts now asserts that it was error to introduce the DNA evidence without any population frequency estimates on the mixed sample since it was introduced on the jacket. He raises this claim despite testimony by his own expert witness, Dr. Ronald Acton, that any evidence of mixed DNA samples needs to be viewed with great caution.
¶24. This Court has held 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 the given population." Hull, 687 So. 2d at 728. In Crawford v. State, 716 So. 2d 1028 (Miss. 1998), we found that it was "proper" for an expert to present statistical evidence as to the frequency with which a DNA match might occur within the general population. Crawford, 716 So. 2d at 1046. Thus, where such evidence is offered in conjunction with evidence of a DNA match made on the basis of either PCR or RFLP analysis, the circuit court should allow its introduction. However, that does not mean that it is an abuse of discretion for the circuit court to allow evidence of DNA matching without also requiring statistical analysis of the match. See Polk v. State, 612 So. 2d 381, 390 (Miss. 1992)(where trial court allowed evidence of a DNA match but disallowed statistical analysis, this Court found expert testimony regarding DNA match admissible, but did not address admissibility of statistics or trial court's refusal to admit same). Indeed, in Polk, it was suggested that evidence that tends to go to the matter of the reliability of DNA testing goes only to the credibility of the evidence offered. Polk, 612 So. 2d at 390 n. 2, 393.
¶25. Whether population frequency statistics are really helpful to the jury was discussed recently in Hepner v. State, 966 S.W. 2d 153 (Tex. Ct. App. 1998). There, the Texas court addressed the defendant's claim that he was unfairly prejudiced by the defense's introduction of the same statistical data Watts now claims should have been admitted. While the Court found that the probative value of the statistical evidence outweighed its prejudicial value, it noted the testimony of Dr. Jonathan Koehler,*fn2 which highlighted the relative insignificance of the population statistical data in comparison to laboratory error rates, which usually are not presented to the jury. Hepner, 966 S.W. 2d at 157-58.
¶26. Watts appears to want to have his cake and eat it, too, with regard to the DNA statistical evidence; While in Issue III, infra, he contends that statistical evidence should have provided along with the DNA evidence taken from his undershorts, he asserts in this assignment of error that statistical evidence regarding DNA samples taken from his jacket should not have been admitted. His own expert witness cautioned against extensive reliance upon mixed DNA samples and noted the variety of combinations that could be derived just from the material found on Watts' undershorts. Given that evidence, one would have to question the reliability of any statistical evidence that might be derived therefrom. Indeed, this Court's decision in Crawford calls into question the reliability of population frequency statistics to mixed DNA samples without also considering the odds of these two particular individuals' DNA being present on the same item. Crawford, 716 So. 2d at 1045 . Further, as the testimony in Hepner, as well as in Dr. Koehler's articles, suggests, the introduction of statistical evidence can be meaningless without any evidence of the testing laboratory's error rate. Given that the population statistics, or lack thereof, like evidence of laboratory error rates, go to the credibility of the DNA matching evidence, it cannot be said that the circuit court improperly refused to strike the evidence of the DNA samples found in his undershorts.
III. WHETHER THE TRIAL COURT ERRED IN ADMITTING PROBABILITY STATISTICS PERTAINING TO THE DNA ON THE DEFENDANT'S JACKET
¶27. After asserting that the circuit court erred in admitting DNA evidence from his undershorts without any accompanying statistical data about the mixed sample thereon, Watts now asserts that it was error to admit probability statistics about the DNA evidence on his jacket. He contends that the State failed to show that there are current techniques used to calculate DNA population frequency statistics which are generally accepted by the scientific community and are neither arbitrary nor unreliable. He further asserts that the State failed to show that Dr. Tracey's strict application of the product rule to calculate population frequency statistics was a generally accepted technique in the scientific community. Rather, he urges this Court to require use of the more conservative ceiling principle.
¶28. The significance of a DNA match found between a suspect or a victim and genetic material recovered from the crime scene or other evidence is assessed through a population frequency analysis. That is, what is the likelihood that someone other than the suspect (or the victim) would possess DNA matching that found in the samples taken at the crime scene or from other evidence? As discussed in Issue II, we have found that population frequency statistics are admissible. Hull, 687 So. 2d at 728. See also Crawford, 716 So. 2d at 1045-46.
¶29. The Pennsylvania court, in Commonwealth v. Blasioli, 713 A. 2d 1117 (Pa. 1998), presents the most cogent explanation of the product rule, which "states that the probability of a genetic profile occurring randomly is the product of the probabilities of each individual allele's occurrence in the general population." Id. at 1124. "The statistical assessment performed after a match has been declared is called population frequency analysis. The object is to determine the overall likelihood that someone other than the suspect would possess DNA matching that in the sample obtained from the crime scene. The first step is to determine, for each matching allele, the likelihood that such an allele would appear in a randomly selected individual. This determination is made through the application of theoretical models based upon population genetics. "Such models are generated by creation of a computer database containing DNA profiles obtained from the general population. The frequency of an allele obtained from a sample can be determined by calculating the probability that a matching allele would appear in a DNA sample obtained from an individual who was randomly selected from the database. "To ameliorate theoretical problems associated with population substructures, discussed below, the Pennsylvania State Police laboratory database categorizes DNA samples according to three racial groups, and uses a process known as "fixed binning." The probability of random matching is also reduced by choosing highly variable segments of the DNA, with dozens of individual alleles, so that individual allele frequency will be very low. Additional variations occur in the matching of the maternal and paternal alleles located at each locus, further reducing the probability of a random match. "Once the probability of random occurrence is calculated for each individual allele, the individual probabilities may be combined to determine an overall probability of random matching across the genetic profile. In order to make this calculation, scientists have employed the product rule. The product rule states that the probability of two events occurring together is equal to the probability that the first event will occur multiplied by the probability that the second event will occur. Coin tossing is commonly used as an illustration--the probability of a coin flip resulting in "heads" on successive tries is equal to the probability of the first toss yielding heads, fifty percent, times the probability of heads on the second toss, fifty percent, equaling twenty-five percent. "As applied in DNA typing, the product rule states that the probability of a genetic profile occurring randomly is the product of the probabilities of each individual allele's occurrence in the general population. Such application can produce odds of up to one in 739 billion of a random profile match." Id. at 1122-24 (internal citations and footnotes omitted).
¶30. Watts bases his assault on the product rule on the National Research Council's1992 Report which, while discussed by the expert witnesses when examined by his attorney, was never entered into evidence. See Underwood v. State, 708 So. 2d 18, 26 (Miss. 1998)(this Court decides cases on facts in the record, not assertions in the briefs). As Watts asserts, the 1992 NRC Report recommended the use of the more conservative ceiling principle and the interim ceiling principle. However, he fails to point out that "the NRC's 1992 report did not constitute an outright rejection of the product rule. Instead, the NRC merely recommended that until data could be assembled from which to assess the impact of any significant population substructuring, the ceiling principle could be applied to impose an appropriate degree of conservatism." Blasioli, 713 A. 2d at 1125. Since the publication of that report, three subsequent events have all but ended the controversy over use of the product rule. First, in 1993, the FBI conducted a survey of VNTR frequency data and determined that population frequency calculations based on the product rule were "reliable, valid and meaningful, without forensically significant consequences resulting from population substructure as had been postulated by some scientists." Blasioli, 713 A. 2d at 1125 (citing Laboratory Division, Federal Bureau of Investigation, United States Department of Justice, 1-A VNTR Population Data: A Worldwide Study 2 (Feb. 1993); Commonwealth v. Rosier, 685 N.E. 2d 739 (Mass.1997); State v. Loftus, 573 N.W. 2d 167, 174-75 (S.D. 1997); State v. Copeland, 922 P.2d 1304 (Wash.1996). Based on the FBI study, Dr. Eric Lander, the leading opponent in the scientific community to use of the product rule declared that the "DNA fingerprinting wars are over" in his article, E. Lander & B. Budlowe, DNA Fingerprinting Dispute Laid to Rest, 371 NATURE 735, 735 (Oct. 27, 1994). Blasioli, 713 A. 2d at 1125. Finally, in its 1996 Report, The Evaluation of Forensic DNA Evidence, the ...