Day v. State

• Decision Date: 18 June 2013
• Docket Number: No. F–2012–143.,F–2012–143.
• Citation: 303 P.3d 291
• Parties: Jason Scott DAY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

303 P.3d 291

Jason Scott DAY, Appellant,

v.The STATE of Oklahoma, Appellee.

No. F–2012–143.

Court of Criminal Appeals of Oklahoma.

June 18, 2013.

¶ 0 An Appeal from The District Court of Oklahoma County; the Honorable Kenneth C. Watson, District Judge.

Catherine Hammarsten, James Hughes, Assistant Public Defenders, Oklahoma City, OK, counsel for defendant at trial.

Gayland Gieger, Adam Kallsnick, Assistant District Attorneys, Oklahoma City, OK, counsel for State at trial.

Andrea Digilio Miller, Assistant Public Defender, Oklahoma County Public, Defender's Office, Oklahoma City, OK, counsel for appellant on appeal.

E. Scott Pruitt, Attorney General of Oklahoma, Steven W. Creager, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

SUMMARY OPINION

SMITH, Vice Presiding Judge.

¶ 1 Jason Scott Day was tried by jury and convicted of First Degree Murder in violation of 21 O.S.Supp.2006, 701.7(C), in the District Court of Oklahoma County, Case No. CF–2009–1210. In accordance with the jury's recommendation the Honorable Kenneth C. Watson sentenced Day to life imprisonment. Day must serve 85% of his sentence before becoming eligible for parole consideration. Day appeals from this conviction and sentence.

¶ 2 Day raises six propositions of error in support of his appeal:

I. The trial court committed reversible error by refusing to fulfill its gatekeeping function under Daubert v. Merrill [ Merrell ] Dow Pharmaceuticals to make a pre-trial ruling on the admissibility of the State's medical testimony;

II. The testimony of the State's expert witnesses exceeded the scope of appropriate testimony by usurping the factfinding function of the jury and violated Mr. Day's right to a fair trial;

III. The State presented insufficient evidence to sustain a conviction for child abuse murder;

IV. The instructions given to Mr. Day's jury did not adequately instruct the jury on the “beyond a reasonable doubt' standard and therefore violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution and correspondingprovisions of the Oklahoma Constitution;

V. Mr. Day was denied an impartial jury comprised of a fair cross-section of the community when the State of Oklahoma exercised peremptory challenges against minority jurors in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Oklahoma Constitution; and

VI. Trial errors, when considered in a cumulative fashion, warrant a new trial.

¶ 3 After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief.

¶ 4 We find in Proposition I that the trial court did not abuse its discretion in refusing to hold a Daubert hearing. Admissibility of expert evidence is within the trial court's discretion. Myers v. State, 2006 OK CR 12, ¶ 39, 133 P.3d 312, 326. An expert may testify to an expert opinion which is (1) based on sufficient facts or data; (2) the product of reliable principles and methods; and (3) the witness has applied those principles and methods reliably to the facts of the case. 12 O.S.2011, § 2702. Taken together, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999), govern admissibility of scientific and other technical or specialized evidence. We adopted Daubert in Taylor v. State, 1995 OK CR 10, 889 P.2d 319, holding that “trial judges must continue to act as gatekeepers, ensuring that all novel scientific evidence is both reliable and relevant.” 1995 OK CR 10, ¶ 17, 889 P.2d at 329 (emphasis added). In determining whether novel scientific evidence is admissible, a trial court should consider (a) whether the scientific method has been or can be tested; (b) whether the theory or technique has been subjected to peer review and publication; (c) the technique's known or potential rate of error; and (d) whether the theory has gained general acceptance in the relevant scientific community; in addition, the testimony must have a valid scientific connection to the pertinent inquiry such that it assists the trier of fact. Taylor, 1995 OK CR 10, ¶¶ 18–20, 889 P.2d at 330. Citing Daubert, we noted that the Daubert analysis is flexible, designed to accommodate many factors without setting forth a definitive checklist or test. Taylor, 1995 OK CR 10, ¶ 21, 889 P.2d at 330.

¶ 5 Before adopting Daubert, Oklahoma used the test for admissibility of novel scientific evidence set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Taylor we explicitly limited Daubert inquiry to novel scientific evidence. Taylor, 1995 OK CR 10, ¶ 17, 889 P.2d at 329. Where the knowledge involved has “long been recognized as the proper subject of expert testimony”, the testimony is not novel and no Daubert hearing is necessary. Harris v. State, 2000 OK CR 20, ¶ 9, 13 P.3d 489, 493;see also Romano v. State, 1995 OK CR 74, ¶ 33, 909 P.2d 92, 112.

¶ 6 Day argues that this limitation is incorrect. We disagree. Well-established theories are less likely to be challenged, and more easily defended, than novel ones Daubert, 509 U.S. at 593, n. 11, 113 S.Ct. at 2796, n. 11. The purpose of the requirement a trial court act as gatekeeper is to “ensure the reliability and relevancy of expert testimony.” Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. at 1176. The trial court has discretion to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, in order to avoid unjustifiable expense and delay. Id. Where the reliability and scope of novel expert testimony have not been determined, the trial court should hold a Daubert hearing rather than summarily concluding that evidence is or is not admissible. Hanson v. State, 2003 OK CR 12, ¶¶ 19–21, 72 P.3d 40, 52. Day argues that the Oklahoma Supreme Court has “rejected the notion” that Daubert applies only to novel scientific evidence. This is not the case. In Christian v. Gray, 2003 OK 10, 65 P.3d 591, the Oklahoma Supreme Court adopted Daubert in civil proceedings. In doing so, the Supreme Court concluded, “We agree with the [Oklahoma] Court of Criminal Appeals that a Daubert inquiry will be limited to circumstances where the reliability of an expert's method cannot be taken for granted. Thus, a Daubert challenge includes an initial determination of whether the expert's method is one where reliability may be taken for granted.” Christian, 2003 OK 10, ¶ 11, 65 P.3d at 599–600. Day also claims the Oklahoma Court of Civil Appeals found Daubert was not limited to novel evidence, in Twyman v. GHK Corp., 2004 OK CIV APP 53, 93 P.3d 51. The issue in Twyman was whether to apply Daubert retroactively in civil cases. Twyman cites Christian and Taylor on the issue of novel evidence, notes that there was no showing the expert evidence at issue in Twyman had previously been accepted as valid, and applied Daubert retroactively. Twyman, 2004 OK CIV APP 53, ¶ 20, 93 P.3d at 56. Neither of these cases support Day's claim that this Court has erred in applying Daubert to novel scientific, technical or specialized evidence.

¶ 7 In denying Day's request for a Daubert hearing, the trial court determined that Shaken Baby Syndrome (SBS), now known as abusive head trauma, is not a novel scientific theory. This is supported by our case law. We have upheld convictions based on evidence of violent shaking, or explicitly of SBS, since at least 1989. Warner v. State, 2006 OK CR 40, ¶¶ 23, 129–33, 144 P.3d 838, 860, 880–81;Abshier v. State, 2001 OK CR 13, ¶ 41, 28 P.3d 579, 591,overruled on other grounds, Jones v. State, 134 P.3d 150, 2006 OK CR 17;Grady v. State, 1997 OK CR 67, ¶¶ 2, 7, 947 P.2d 1069, 1070–71(per curiam), overruled on other grounds, Fairchild v. State, 998 P.2d 611, 1999 OK CR 49;Price v. State, 1989 OK CR 74, ¶ 25–26, 782 P.2d 143, 149;see also Drew v. State, 1989 OK CR 1, ¶¶ 5–6, 9, 771 P.2d 224, 227 (severe head trauma). The Oklahoma Court of Civil Appeals has accepted evidence of violent shaking of babies. In re D.P.D., 2006 OK CIV APP 110, ¶¶ 5–9, 144 P.3d 202, 203;In re T.H., 2005 OK CIV APP 5, ¶ 10, 105 P.3d 354, 356;In re K.W., 2000 OK CIV APP 84, ¶ 3, 10 P.3d 244, 245. The Oklahoma Supreme Court accepted it in In re S.B.C., 2002 OK 83, ¶ 3, 64 P.3d 1080, 1081.

¶ 8 Day claims that, even if we previously accepted the evidence, it is no longer reliable under Daubert because it has been discredited by other scientific evidence. This is an exaggeration. The most the record before us shows is that experts disagree on the diagnosis of Shaken Baby Syndrome (SBS), particularly where there is no evidence of some impact injury. This disagreement is vigorous. However, neither the testimony at trial nor the references Day cites support a conclusion that the theory of abusive head trauma, or SBS, has been discredited. Expert testimony is not rendered unreliable by criticism. Harris v. State, 2004 OK CR 1, ¶ 31 n. 10, 84 P.3d 731, 746 n. 10. Day's jury determined the weight and credibility to give to each witness. Warner, 2006 OK CR 40, ¶ 40, 144 P.3d at 863. Jurors had the benefit of hearing “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. Day relies on a recent per curiam United States Supreme Court case, Cavazos v. Smith, ––– U.S. ––––, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011). Day admits that the holding in that case is not relevant to this issue, but argues that its persuasiveness lies in the fact the Court debated the validity of evidence regarding SBS. Insofar as Smith has any relevance to this case at all, neither the per curiam opinion nor the dissent support a conclusion that SBS or abusive head trauma...