Date: 01-31-1995

Case Style:

Michael Anthony Taylor v. The State of Oklahoma

Case Number: 1995 OK CR 10

Judge: Chapel

Court: Oklahoma Court of Criminal Appeals on appeal from the District Court, Oklahoma County

Plaintiff's Attorney: Sandra Stensaas, Carl Alexandre, Asst. Dist. Attys., Oklahoma City, for state at trial.

Defendant's Attorney: Eugenia T. Baumann, Asst. Public Defender, Oklahoma City, for defendant at trial.

Description: Oklahoma City, Oklahoma criminal defense lawyers represent the Defendant charged with:

¶1 Michael Anthony Taylor was tried by a jury and convicted of First Degree Burglary in violation of 21 O.S.Supp.1982, § 1431 (Count I), First Degree Rape in violation of 21 O.S.Supp.1986, § 1114 (Count II), Forcible Oral Sodomy in violation of 21 O.S.1981, § 888 (Counts III and IV) and First Degree Robbery in violation of 21 O.S.1981, § 801 (Count V), all after former conviction of two or more felonies, in the District Court of Oklahoma County, Case No. CRF-88-3222. In accordance with the jury's recommendation, the Honorable Jack R. Parr sentenced Taylor to fifteen years imprisonment each on Counts I and V, and ninety-nine years imprisonment each on Counts II, III and IV. Judge Parr ordered the sentences to run consecutively.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 On May 23, 1988, a man broke a window and entered S.H.'s home. A.H., S.H.'s mother, was asleep on the couch in the living room. S.H. saw the intruder and ran to the living room to call the police. The intruder grabbed the phone from S.H. and demanded money. She gave him $135.00. He subsequently forced both S.H. and A.H. to orally sodomize him. He also raped S.H.

¶3 S.H. helped police design a composite sketch of her assailant, who was black. On the basis of this drawing, police identified and apprehended Taylor. He voluntarily provided officials from the Oklahoma County Police Department with samples of his saliva, hair and blood. Police also prepared a standard rape kit with blood and semen samples [889 P.2d 323] collected from S.H. and A.H. Oral washings and blood and semen samples from their clothing were also collected.

¶4 When conventional comparison testing of all these samples proved inconclusive, they were sent to Lifecodes Corporation 1 to be analyzed using a procedure called DNA 2 Print Identification. 3 Scientists at Lifecodes concluded that the DNA in Taylor's blood sample "matched" the DNA in the semen found on the victims' clothing.

¶5 At defense counsel's request, the trial court held an in camera hearing to determine whether DNA testing met the admissibility standard set forth in Frye v. United States. 4 The sole witness was State's expert Dr. Jay S. Hanous, faculty member of the Department of Biochemistry and Molecular Biology at the University of Oklahoma College of Medicine. 5 He described the DNA profiling procedure (restriction fragment length polymorphism or "RFLP" analysis) Lifecodes used to type Taylor's DNA and stated that most laboratories follow it. Hanous testified that he spoke with people from Lifecodes, reviewed its protocols 6 and concluded that the steps it follows when conducting its experiments are consistent with accepted practices in the field of genetics. When asked about the probability statistics Lifecodes used to illustrate the likelihood that Taylor's DNA pattern could be found in another human being, Hanous testified that the scientific community accepted as reliable the procedure Lifecodes followed in making the calculation.

¶6 After hearing Hanous's testimony, the trial court ruled that DNA profiling generally and the particular procedures followed by Lifecodes in this case met the Frye standard. Over defense counsel's objection, the trial court allowed Hanous and two other Lifecodes scientists to testify before the jury. Dr. John Coleman performed the DNA test procedure on the samples taken from Taylor and the victims. He explained the procedure he followed, stating that the results showed a match between Taylor's DNA and the DNA extracted from the semen samples found on the victims' clothing.

¶7 Dr. Michael Baird 7 monitored the test Coleman performed and testified it was done correctly and in accordance with standard procedures. He also stated that Taylor's specimen matched the DNA taken from the victims "within a reasonable degree of scientific certainty. . . . ." 8 Baird testified that only one in 97 million African Americans possess the same genetic pattern identified in Taylor's DNA and matched with the DNA extracted from the specimens found on the [889 P.2d 324] victims. 9 While Baird conceded that errors are possible during laboratory testing in general, he testified that a mistake made during DNA testing is more likely to generate no result rather than an incorrect one. 10

¶8 Taylor filed his initial appellate brief on August 24, 1990, claiming, among other things, that the results from the DNA profiling should not have been admitted against him. After concluding that the case presented a question of first impression in our jurisdiction, 11 this Court on February 18, 1992, remanded Taylor's case to the district court and ordered an evidentiary hearing to determine the following: whether DNA fingerprinting is generally accepted in the scientific community; whether the statistical conclusions derived from DNA fingerprinting are generally accepted in the scientific community; and, whether the procedures used in Taylor's case comported with generally accepted scientific procedures. We also ordered that State funds be used to hire experts to assist Taylor in presenting and defending his position.

¶9 The evidentiary hearing was conducted in two parts before the Honorable John M. Amick, District Judge. The first was on August 5,6 and 10 of 1992; the second was on May 17, 1993. The State presented five expert witnesses; Taylor presented two. Judge Amick filed his Findings of Fact and Conclusions of Law on August 30, 1993. Based upon the evidentiary hearing testimony, Judge Amick found that the DNA evidence was properly admitted against Taylor. He concluded that DNA testing and related statistical conclusions are generally accepted in the scientific community. He also found that the scientific procedures conducted in this case were performed in accordance with generally accepted standards.

¶10 In a supplemental proposition filed after the evidentiary hearing, 12 Taylor claims the Findings of Fact and Conclusions of Law are clearly erroneous and should not be used to uphold the trial judge's admission of the DNA evidence against him. Taylor argues that the DNA match evidence and accompanying statistics were obtained through procedures which have not gained general acceptance in the scientific community and should therefore have been excluded under Frye. As a second basis for exclusion, he claims that Lifecodes failed to properly perform the procedures in question. 13 In its brief response, the State maintains that DNA profiling has gained general acceptance among [889 P.2d 325] scientists and appellate courts, and that any doubts about the manner in which the tests at issue were performed affected only the weight of the evidence and were thus properly left to the factfinder. We affirm the evidentiary hearing judge's determination that the DNA match evidence and accompanying statistics were properly admitted against Taylor.

II. OVERVIEW OF DNA PROFILING

¶11 DNA is the "fundamental natural material which determines the genetic characteristics of all life forms." 14 Most of the DNA structure in one human being is identical to the DNA structure of another. 15 With the exception of identical twins, however, a small percentage of an individual's DNA structure is different from that of another individual. 16 These differing DNA sites "apparently do not encode any observable human characteristics" and thus are often referred to as "junk" DNA. 17

¶12 Even some of these unique patterns or "polymorphisms" within one individual may be similar to those in another, so that "the [889 P.2d 326] probability that two individuals in a given population will share similar polymorphic sequences ranges from less tha[n] one percent to over thirty percent." 18 Thus, in an effort to obtain through the DNA matching process the most individualized picture possible of one person's genetic structure, scientists have determined that more than one polymorphic sequence per individual specimen must be analyzed. 19 The astounding odds against two individuals sharing an equal number of the same DNA sequence at several of these highly polymorphic sites makes DNA profiling an effective forensic tool 20 in criminal cases. 21

¶13 One state court has provided a highly simplified and thus helpful categorization of the overall DNA testing process. 22 First, the laboratory creates a DNA "print" or profile. 23 Second, a qualified person determines whether the profiles of two samples match. 24 If the samples match, a population genetics formula is then used to determine the probability that a randomly selected individual would have possessed the same DNA sequences at common polymorphic sites.

III. STANDARD OF ADMISSIBILITY

¶14 The admission of expert testimony is governed generally by 12 O.S.1981, § 2702, which provides 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 in the form of an opinion or otherwise.

[889 P.2d 327]

Section 2702 sets forth the guidelines for determining whether a particular witness is qualified to testify as an expert, or whether the subject about which the expert will testify would actually assist the trier of fact in reaching its conclusion. 25 Oklahoma currently imposes an additional admissibility requirement upon expert testimony concerning "novel" scientific evidence, such as DNA profiling evidence. This type of evidence may be admitted only if the uncommon procedure or theory about which the expert plans to testify is "sufficiently established to have gained general acceptance in the particular field in which it belongs. 26 This Court has referred to the Frye "general acceptance" test as the foundational requirement for novel scientific evidence. 27 Shortly after the evidentiary hearing in this case, the United States Supreme Court held in [889 P.2d 328] Daubert v. Merrell Dow Pharmaceuticals28 that Frye has been superseded by the Federal Rules of Evidence and most specifically by Rule 702. 29 The Court concluded that the rigid "general acceptance" test set forth in Frye is "at odds with the `liberal thrust' of the Federal Rules and their `general approach of relaxing the traditional barriers to "opinion" testimony.'" 30 Despite both the federal courts' shift in position and general criticism of Frye, 31 many state courts have continued to adhere to it. 32

¶15 We on the other hand believe the time is right for this Court to abandon the Frye test and adopt the more structured and yet flexible admissibility standard set forth in Daubert. 33 A review of our pertinent [889 P.2d 329] case-law reveals that this Court has not consistently relied upon Frye when faced with questions involving the admissibility of expert testimony describing novel scientific evidence. In fact, since adopting Frye in 1951, we have specifically cited to it in only six reported case. 34 While a number of our cases have mentioned the "general acceptance" standard, several others appear to have utilized section 2702 in analyzing the admission of expert testimony describing novel scientific evidence. 35 In those cases in which we have specifically applied the Frye analysis, we have also generally failed to consider the possible prejudicial effect of the expert testimony at issue. 36

¶16 The Daubert reliability approach provides a uniform method of addressing the admissibility of expert testimony on all types of scientific evidence. Our adoption of the Daubert approach will provide structure and guidance to what has until now been a potentially confusing and sparsely defined area of legal analysis in our state jurisprudence. 37 Adherence to Daubert will also ensure that relevant sections of the Evidence Code are properly considered in the admission decision. Finally, we agree with the Second Circuit Court of Appeals that "[i]n testing for the admissibility of a particular type of scientific evidence, whatever the scientific `voting' pattern may be, the courts cannot in any even surrender to scientists the responsibility for determining the reliability of that evidence." 38 We now turn to a discussion of the Daubert test. 39

¶17 Though the test we adopt today is more flexible than the Frye general acceptance standard, Daubert makes clear that trial judges must continue to act as gatekeepers, ensuring that all novel scientific evidence is both reliable, and relevant. 40 To be considered reliable, the qualified expert's testimony must be about "scientific knowledge." Stated another way, the expert's "inference[s] or assertion[s] must be grounded in the methods and procedures of science[,]. . . . derived by the scientific method. . . [and] supported by appropriate validation. . . ." 41 In short, the reasoning or methodology [889 P.2d 330] underlying the testimony must be "scientifically valid." 42

¶18 Daubert identifies several factors which may aid trial judges in determining whether proposed section 2702 evidence is scientifically valid and thus reliable. First, it might be important to know whether the scientific method at issue has been or can be tested. The "falsifiability, . . . refutability, or testability" of a proffered theory could help determine its scientific status. 43 A trial court might also consider whether the theory or technique has been subjected to peer review and publication. Some novel theories or techniques may be too new or of too limited an interest to have been published. Yet, if a particular new technique has been scrutinized by the scientific community, it is more likely that major flaws will have been detected. Again, the fact of publication or no publication is relevant to the section 702 reliability inquiry, but not dispositive of it.

¶19 Thirdly, a trial court should ordinarily consider the proffered technique's known or potential rate of error. Fourth and finally, the Daubert Court recognized that whether the new theory has gained general acceptance in the relevant scientific community is a pertinent though clearly not a required consideration in making the reliability determination. Prevailing acceptance can suggest that a particular theory is sufficiently reliable to warrant admission, while minimal support from the scientific community can suggest that the evidence at issue is unreliable and should be excluded.

¶20 The second prong of the section 702 admissibility test requires that the expert's testimony "assist" the trier of fact to understand the evidence or to determine a fact in issue, . . . ." This requirement ensures that the subject of an expert's testimony will be relevant to the issues in the case. An expert's scientific testimony is relevant if it "fits," that is, if it bears a "valid scientific connection to the pertinent inquiry. . . ." 44

¶21 In addition to outlining and defining the section 702 requirements, the Court in Daubert set forth some principles to guide all admissibility determinations. Recognizing the permissive tenor of the Federal Rules of Evidence, the Court emphasized the flexibility of this section 702 admissibility inquiry: "Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test." 45 The Court also cautioned that the focus of the section 702 inquiry "must be solely on principles and methodology, not on the conclusions that they generate." 46

[889 P.2d 331]

IV. STANDARD OF REVIEW

¶22 We have consistently reviewed trial courts' decisions regarding the admissibility of expert testimony under an abuse of discretion standard. 47 In cases involving the admissibility of expert testimony on novel scientific evidence, however, we have applied two standards of review. On the one hand, we have reviewed trial judges' decisions admitting or excluding novel scientific evidence under an abuse of discretion standard. 48 On the other hand, this Court has conducted extensive, independent review of novel scientific evidentiary material in determining whether the trial judges' decisions admitting or excluding it was proper. 49

[889 P.2d 332]

¶23 After reviewing our inconsistent caselaw and considering the permanent impact of a trial judge's decision to admit novel scientific evidence, we find we should subject that decision to an independent, through review and not simply ask whether an abuse of discretion was committed. 50 We thus adopt the reasoning of the District of Columbia Court of Appeals and conclude that our review of a trial judge's decision admitting or excluding novel scientific evidence should be an independent one not limited by deference to the trial judge's discretion:

Generally, the decision whether or not to admit expert testimony is addressed to the sound discretion of the trial court. Where the question of the general acceptance of a new scientific technique is raised, however, the proponent will often be asking the court to establish the law of the jurisdiction for future cases. . . . Accordingly, in recognition of the fact that the formulation of the law of this jurisdiction is a quintessentially appellate function, we engage in a broad review of the trial judge's determination whether the forensic use of DNA technology has gained general acceptance. In doing so, we may consider not only expert evidence of record, but also judicial opinions in other jurisdictions, as well as pertinent legal and scientific commentaries. 51

A. EXPERT TESTIMONY ON DNA MATCH EVIDENCE

¶24 After independently reviewing the evidentiary hearing transcripts in this case, 52 the evidentiary hearing judge's findings and conclusions, numerous articles discussing scientists' views on the merits of DNA profiling, 53 and a number of state 54 and [889 P.2d 333] federal 55 court opinions addressing the admissibility of DNA evidence as a forensic tool in criminal cases, we find that the overall theory and techniques of DNA profiling 56 - including those Lifecodes used in this case 57 - are scientifically reliable and relevant under Daubert standards. 58 Turning to the first Daubert factor under the "scientifically relevant and reliable" prong, there is no doubt that DNA profiling techniques in general and the RFLP analysis specifically have been and can be tested. Secondly, it is clear that they have been subjected to peer review. 59

¶25 Regarding the third Daubert factor which focuses on the scientific technique's known or potential rate of error, we note Dr. Baird from Lifecodes testified that the company had submitted to blind proficiency testing to ensure that it was following proper procedures in conducting its DNA profiling analyses. 60 While no figures were given on any known or potential rate of error in the RFLP test procedure, Dr. Baird did testify that mistakes made during this analysis would most likely result in no finding than in a faulty one. 61 Fourth and finally, it is abundantly clear that the concerned scientific community has generally accepted as reliable the RFLP method of DNA profiling utilized [889 P.2d 334] by Lifecodes in this case. 62 After assessing the DNA profiling evidence in accordance with the Daubert requirements, we find it was sufficiently reliable to have warranted admission.

¶26 The second prong of the section 2702 test requires that we determine whether this reliable DNA profiling evidence was relevant to the trial issues. Evidence of a match between Taylor's tested DNA profile and the tested crime scene DNA tended to show that the semen found on the victims belonged to him. The main issue at trial was who had left his semen at the crime scene and on the victims. Clearly, the DNA match evidence was pertinent to this inquiry and thus sufficiently relevant to have warranted admission.

¶27 Having determined that the DNA profiling evidence was both relevant and reliable, we must now consider whether its probative value was substantially outweighed by the danger of unfair prejudice. 63 This evidence was highly probative on the issue of the perpetrator's identity. While it did tend to inculpate Taylor, the DNA match evidence was not unfairly prejudicial.

¶28 The DNA match evidence in this case was both relevant and reliable. Further, its probative value was not substantially outweighed by the danger of unfair prejudice. It was therefore properly admitted against Taylor.

B. STATISTICAL PROBABILITY EVIDENCE

¶29 Before determining whether the statistical probability evidence presented against Taylor passes muster under section 2702 as interpreted by Daubert, we will briefly describe this component of DNA profiling evidence and trace its path through recent stages of scientific scrutiny. As previously mentioned, this final phase in the DNA profiling process utilizes population genetics to estimate the "probability that a person picked randomly from the population would have a DNA profile identical to the DNA profile generated from the forensic sample. . . ." 64 One court explained it this way:

Absent laboratory error, a declared match means that only one of the following is true: (1) the samples came from the same individual; (2) the samples came from identical twins; or (3) the samples came from different individuals but, by pure chance, the DNA segments examined match (although comparison of the entire DNA sequence from each individual would not match). It is the probability favoring a random match (the third of these three alternatives) that provides the telling and crucial bottom line of DNA evidence.65

¶30 During the trial in this case, Lifecodes's Dr. Baird testified that the likelihood that an African American other than Taylor contributed the DNA in the semen sample taken from the victims was one in 97 billion. To obtain this figure, Lifecodes's scientists first determined how often each of Taylor's isolated DNA patterns - which matched the patterns from the unknown perpetrator's specimen - occurred among the samples in its African American database. 66 Applying to this data a widely used and well accepted [889 P.2d 335] population genetics principle known as the "product rule," 67 Lifecodes scientists calculated the final 1 in 97 billion figure. 68

¶31 After Taylor's trial but before the evidentiary hearing, scientists began criticizing the application of the product rule in determining the statistical significance of a DNA match. The primary concern was that incorrect assumptions were being made about the population's mating tendencies and the resulting genetic structure of human populations. If these critics were correct, using the product rule to determine the statistical significance of a DNA match could have resulted in probability figures which greatly underestimated the possibility of a random match between tested DNA samples. 69

¶32 In 1991, Science, a leading scientific journal, featured a pair of articles depicting the fundamental disagreement among population geneticists over determining the statistical significance of a DNA match. 70 Several months later, the National Research Council 71 released a report 72 in which "[a] committee of eminent scientists and jurists (hereinafter NRC Committee) [who had] exhaustively researched and analyzed the current status of forensic DNA typing" 73 acknowledged the existence of this substantial controversy concerning popular methods of statistical analysis. 74

¶33 The NRC Committee found that "[c]urrent methods of calculating the probability of a random match rest upon inadequate data and unjustified assumptions about population [889 P.2d 336] substructure." 75 The Committee's temporary solution to the population substructure problem was the "ceiling principle," a conservative formula for computing the statistical component of DNA match evidence that "gave the benefit of every conceivable doubt to the defendant." 76 Predictably, population geneticists and statisticians soon began criticizing this new method of calculating the statistical significance of a DNA match. 77 Most recently and most notably, however, a member of the disbanded NRC Committee discussed the controversy, concluding that "the DNA fingerprinting wars are over." 78

¶34 Taylor's attack on the statistical component of the DNA profiling evidence admitted against him centers primarily on Lifecode's use of the product rule. He claims the NRC Committee Report made clear that the statistical component of DNA match evidence cannot properly be calculated using the product rule. After independently reviewing the evidentiary hearing transcripts in this case, the evidentiary hearing judge's findings and conclusions, numerous articles discussing scientists' views concerning the statistical portion of DNA evidence, and a number of state and federal court opinions addressing the admissibility of the statistical component of DNA evidence, we find that the statistical evidence presented against Taylor meets the Daubert standard of admissibility.

¶35 Turning to the first Daubert reliability consideration, it is clear that the frequency calculation used in the DNA context has been and can be scientifically tested. Secondly, various methods of computing the statistical significance of a DNA match, including the one used in this case, have been subjected to peer review. The third Daubert factor asks whether the technique at issue has a known or potential rate of error. Clearly, scientists have disagreed about whether applying population genetics principles to DNA database figures can produce reliable statistics. Accordingly, some would argue that every resulting statistic is unsound. This does not really provide us with a known or potential rate of error, however, because there is no definitive proof that statistical results derived by applying genetics principles to DNA database figures are in fact flawed.

¶36 Fourth and finally, it appears that the relevant scientific community has generally accepted the application of the product rule in calculating the statistical component of DNA match evidence. 79 One [889 P.2d 337] court adhering to one version of the strict Frye test has also recently found that "substructure" attacks on DNA statistics derived through application of the product rule will not present an obstacle to admission of this evidence. The court in People v. Soto noted that several scientific developments since the NRC Committee Report have laid to rest any concern over the use of the product rule in calculating the statistical significance of a DNA match. 80 After considering the DNA statistical evidence in accordance with Daubert standards, we find it was sufficiently reliable to have warranted admission. 81

¶37 We must now determine under the second prong of section 2702 whether this reliable DNA statistical evidence was relevant to the trial issues. Once the jury heard testimony that the tested portion of Taylor's DNA matched the tested portion of the crime scene DNA, it had to know the degree to which such a match suggested that the semen left at the scene was in fact Taylor's. The statistical figures admitted reflected how rare it would be to find two people who shared the same genetic patterns at several sites on their DNA strands. These numbers clearly helped the jury appreciate the significance of the DNA match evidence.

¶38 Having determined that the statistical portion of the DNA profiling evidence was both relevant and reliable, we must consider whether its probative value was substantially outweighed by the danger of unfair prejudice. The "one in 97 billion" statistic was a necessary and probative component of the DNA match evidence because it enabled [889 P.2d 338] the jury to appreciate the significance of the match. On the other hand, this Court has recognized "the very real danger that . . . probability evidence may have an undue psychological impact on the trier of fact." 82 Further, because a given set of statistics may be somewhat larger or smaller depending upon the particular formula used to calculate them, it is clear that there currently exists some degree of inconsistency in this component of DNA profiling evidence.

¶39 While these aspects of DNA statistics could be considered prejudicial, we do not find that they substantially outweigh the probative value of this evidence. Even if the overwhelmingly large numbers arguably convince juries that a match means an accused's DNA specimen and the crime scene specimen are one and the same, juries are still free to weigh all the evidence and conclude that the accused did not commit the crime charged. Clearly, a DNA expert would be forbidden to testify that the evidence proved the accused committed the crime charged. 83

¶40 Finally, the fact that one particular method of calculating DNA statistics might result in a smaller figure than another does not lead us to conclude that all such statistical evidence is more prejudicial than probative. None of the currently accepted formulas result in statistics so significantly divergent that one set of figures would absolutely convince a jury that a match was not random, while another might only suggest to a jury that a match was not random. Rather, each of the several formulas produce statistical results that convey the minimal likelihood that a match between an accused's DNA and crime scene DNA was random. 84

¶41 Without the statistical component of DNA profiling evidence, juries would be unable to assess the significance of the match evidence. The possible prejudicial effect of these statistics is not unfair and does not outweigh their probative value. After analyzing the DNA statistical evidence under the flexible Daubert, we find that it was relevant, reliable and properly admitted against Taylor.

V. SUMMARY AND CONCLUSION

¶42 After reevaluating the Frye general acceptance method of determining the admissibility of novel scientific evidence to which this Court has long adhered, we have decided to abandon that test and adopt the more flexible standard fashioned by the United States Supreme Court in Daubert. We have concluded after thoroughly and independently assessing the novel DNA profiling evidence in this case, that it meets the Daubert relevancy and reliability test. Accordingly, we uphold the evidentiary hearing judge's conclusion that the trial judge properly admitted the DNA match and statistical evidence against Taylor.

¶43 This Court has now independently determined that DNA match evidence obtained through RFLP analysis, and DNA statistics calculated through standard population genetics formulas, pass the Daubert test. Therefore, from this point forward, trial courts faced with DNA profiling evidence produced through these means need not conduct a Daubert pretrial admissibility hearing. 85 We emphasize that while this evidence [889 P.2d 339] is now generally admissible, its weight and credibility remain subject to attack through cross-examination and testimonial challenges.

¶44 On the other hand, a pretrial Daubert hearing must be held if a party seeks admission of scientific or technical evidence the reliability of which this Court has not considered. 86 The purpose of this hearing will be to determine whether such evidence is sufficiently "reliable" and "relevant" to warrant admission. 87 This evidence may be considered "reliable" if it is grounded in the methods and procedures of science. 88 The "relevancy" component simply requires that scientific or technical evidence bear a valid scientific connection to the pertinent inquiry and thereby assist the trier of fact in assessing the issues. Finally, the trial court should consider whether the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. This Court will independently review a trial judge's decision admitting or excluding novel scientific or technical evidence to determine whether it passes muster under Daubert.

ADDITIONAL PROPOSITIONS

¶45 In his third proposition, 89 Taylor claims his convictions for both first degree burglary and first degree robbery violated the prohibition against double jeopardy, since the acts supporting these offenses arose from the same criminal transaction. We disagree. "[B]urglary and other offenses committed within the structure burgled do not merge, and conviction of both does not violate double jeopardy protections." 90 The burglary Taylor perpetrated was complete when he entered the victims' residence with the intent to commit a crime. 91 "The offenses [he] committed after entry [were] separate and distinct." 92 This proposition is denied.

¶46 Taylor claims in his final, supplemental proposition 93 that the trial court did not properly conduct the post-examination competency hearing to which he was entitled pursuant to 22 O.S.1991, § 1175.4. After an August 16, 1988 hearing on Taylor's application for determination of competency, the trial court ordered the Oklahoma Department of Mental Health to examine Taylor for competency. After the examination, the Department of Mental Health advised the court that Taylor was competent.

¶47 On September 2, 1988, the State filed an application for a post-examination competency hearing. Each party was then notified that a hearing would be held. Taylor's attorney did not offer any evidence at the hearing and thus waived any claims supporting [889 P.2d 340] Taylor's incompetency. 94 The trial judge reviewed the available evidence, determined that Taylor was competent and ordered criminal proceedings to resume. The Assistant District Attorney and Taylor's attorney both signed the Order to Resume Criminal Proceedings.

¶48 Taylor now claims the waiver of his right to present evidence of incompetency was invalid. He argues that such a waiver is acceptable only after the trial judge personally observes the defendant, questions him about his understanding of the consequences of the waiver, and makes a final determination that the defendant in fact is capable of waiving his right to present evidence of incompetence. Because Taylor was not present 95 at the post-examination competency hearing, he claims the trial judge could not have made this determination and should not have allowed defense counsel to waive Taylor's rights. We disagree.

¶49 A post-examination competency hearing must afford both the State and the defense an opportunity to present and argue evidence concerning the defendant's competency. However, a defendant may choose not to take advantage of that opportunity, either by refusing to present evidence at the hearing or by failing to appear. Taylor does not claim that the trial court failed to notify him of the hearing date or that he was unaware of the doctor's competency determination. Although the record reflects that neither Taylor nor his attorney were physically present at the hearing, defense counsel signed the Order to Resume Criminal Proceedings which clearly stated that the judge had found Taylor competent to stand trial.

¶50 We find that Taylor was fully apprised of both the post-examination hearing and the State's evidence supporting competency. He had the opportunity to present evidence at that hearing, but chose to waive it. The judge was under no obligation to evaluate independently whether Taylor was competent to waive his rights. This proposition is denied.

Outcome: The Judgment and Sentence of the trial court is AFFIRMED.

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