Lifecodes is a for-profit company based in New York

DNA is the acronym for the scientific term Deoxyribonucleic acid.

"DNA Print Identification" is a trademark name possessed by Lifecodes. The same procedure is also commonly referred to as DNA "Fingerprinting," though some have criticized this term as creating the false impression that a match between two DNA samples is as conclusive as a match between two fingerprints. It is not. See Commonwealth v. Cumin, 409 Mass. 218, 565 N.E.2d 440, 441, n. 2 (1991).

293 F. 1013, 1014 (D.C. Cir. 1923) (holding that novel scientific evidence may be admitted through expert testimony only if it has gained general acceptance in the field to which it relates). Defense counsel described the Frye test as a three-pronged test requiring the State to establish 1) the validity of the underlying principles, 2) the validity of the techniques applying those principles, and 3) the proper application of those techniques in the case at issue. We agree with State v. Vandebogart, 136 N.H. 365, 616 A.2d 483. 490 (1992), that the third prong is not part of the Frye analysis.

Defense counsel did not present any expert testimony either at the in camera hearing or during trial. She believed Taylor was not entitled to an expert in this instance. While she could have requested funds for an expert, she did not. Taylor claims in his second proposition that defense counsel's failure to request funding for a DNA expert constituted ineffective assistance.

Protocols are the steps technicians follow when performing certain experiments, from receipt of the specimen to the final result. They help ensure accuracy, reliability and consistency.

At the time of the hearing, Dr. Baird — a geneticist — worked at Lifecodes as Director of Forensics and Paternity.

Tr. 343.

Several weeks before trial, Lifecodes established yet another point of comparison between Taylor's DNA specimen and the crime scene sample. Dr. Baird testified that given this additional point of comparison, the probability that another individual would possess the DNA characteristics found to exist in Taylor and the test sample would be 1 in 97 billion. Tr. 348.

See also People v. Mohit, 153 Misc.2d 22, 579 N.Y.S.2d 990, 995 (Westchester County Ct. 1992) (holding that "[c]linical errors [committed during DNA profiling] are far more likely to cause an inconclusive or no match result than a false positive.").

While this Court has not previously addressed the admissibility of DNA evidence, we have mentioned this type of evidence in several contexts. See Sadler v. State, 846 P.2d 377, 381-83 (Okla. Cr. 1993) (finding no Brady violation where State withheld from defendant inconclusive DNA report). See also Fritz v. State, 811 P.2d 1353, 1366 (Okla. Cr. 1991) (concluding that appellant's right to speedy trial was not violated even though lapse of time between offense and filing of charge could have caused hair sample to deteriorate and thus precluded DNA testing). We also note that our state legislature has enacted statutes addressing some DNA issues. See 22 O.S. 1991 § 751.1[ 22-751.1] ("DNA profile — Use as evidence — Notification of defendant"); 22 O.S.Supp. 1994 § 991a[ 22-991a], to be effective July 1, 1996 ("Sentence — Powers of court — County community service sentencing programs — DNA testing for identification purposes"); 74 O.S.Supp. 1994 § 150.27a[ 74-150.27a], ("Deoxyribonucleic acid (DNA) laboratory — Coordination of use with law enforcement agencies"); 74 O.S.Supp. 1994 § 150.27a[ 74-150.27a], to be effective July 1, 1996 ("OSBI DNA Offender Database"); and, 74 O.S. 1991 § 150.28[ 74-150.28] ("Deoxyribonucleic acid (DNA) laboratory — Acquisition or transmittal of specimens and information — Procedures").

Taylor's first proposition in his appellate brief, which questioned the admissibility of DNA evidence, prompted this Court to order the evidentiary hearing ultimately conducted. His supplemental proposition attacks the evidentiary hearing judge's conclusion that DNA evidence in general and the DNA evidence specifically admitted against him pass muster under Frye.

In strict Frye states such as Oklahoma, the admissibility of novel scientific evidence is not conditioned upon a preliminary showing that no appreciable error occurred in the particular testing procedure at issue. Rather, allegations of error in the testing process affect the weight of the novel scientific evidence but not its admissibility. See e.g., People v. Mehlberg, 249 Ill. App.3d 499, 188 Ill.Dec. 598, 625, 618 N.E.2d 1168, 1195 (5 Dist. 1993) (concluding that whether laboratory properly performed accepted techniques goes to weight, not admissibility, and is thus not included in the Frye calculation); State v. Harris, 866 S.W.2d 583, 587 (Tenn.Cr.App. 1992) (concluding that to be admissible under Frye, evidence must have gained general acceptance in relevant scientific field); State v. Cauthron, 120 Wn.2d 879, 846 P.2d 502, 507 (1993) (concluding that conditioning admissibility on showing of no human error is "inappropriate in jurisdictions utilizing the Frye standard of admissibility [because t]he core concern of Frye is only whether the evidence being offered is based on established scientific methodology.").
We recognize that some Frye jurisdictions have bolstered the traditional "general acceptance" test by adding a requirement that novel scientific evidence be excluded if the trial court determines that the testing procedures at issue were not properly performed. For example, in People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989), a New York court ruled that novel scientific evidence may be admitted if it has gained general acceptance in the relevant scientific community, if the particular techniques generating such evidence have gained general acceptance in the relevant scientific community, and if the testing laboratory in the particular case properly performed the accepted scientific procedures in reaching the results. Other courts have also applied this " Frye plus" standard. See State v. Houser, 241 Neb. 525, 490 N.W.2d 168, 181 (1992) (applying three pronged test to determine whether novel scientific evidence should be admitted: 1) Whether underlying theory generally accepted, 2) whether particular techniques at issue generally accepted, and 3) whether techniques were properly performed by testing lab); Perry v. State, 606 So.2d 224, 225 (Ala.Cr.App. 1992) (same); Hopkins v. State, 579 N.E.2d 1297, 1302-03 (Ind. 1991) (same). Cf. Smith v. Deppish, 248 Kan. 217, 807 P.2d 144, 159 (1991) (concluding that while Frye is met if evidence and technique are both generally accepted, evidence may nonetheless be excluded on other bases such as irrelevancy, test samples prejudice, or contamination); State v. Ford, 301 S.C. 485, 392 S.E.2d 781, 784 (1990) (same).
However, after reviewing the few Oklahoma cases where Frye has been specifically and explicitly applied, it is clear that this court has not broadened the scope of the traditional general acceptance test. See Yell v. State, 856 P.2d 996 (Okla. Cr. 1993) (concluding that novel scientific evidence must be generally accepted in scientific community); Davenport v. State, 806 P.2d 655, 658 (Okla. Cr. 1991) (concluding that child accommodation syndrome must be generally accepted as reliable in medical community); Moore v. State, 788 P.2d 387, 398 (Okla. Cr. 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990) (concluding that hair comparison evidence had gained general acceptance in scientific community as precondition of admission); Driskell v. State, 659 P.2d 343, 356 (Okla. Cr. 1983) (concluding that fiber comparison evidence was sufficiently established to have gained general acceptance in the relevant scientific community); Henderson v. State, 94 Okla. Cr. 45, 230 P.2d 495 (1951), cert. denied, 342 U.S. 898, 72 S.Ct. 234, 96 L.Ed. 673 (1951) (case in which this Court adopted the Frye standard). But see Kennedy v. State. 640 P.2d 971, 977 (Okla. Cr. 1982) (applying three-pronged standard set forth in People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976). Accordingly, we find that the admissibility of the DNA evidence presented against Taylor was not conditioned upon Lifecodes's proper performance of the test procedures. Any issue involving error in the analysis was properly presented to and determined by the jury.

R. Michael Sweeney, DNA Typing; Defending a Process under Vigorous Attack, 21 Capital Univ. L.Rev. 611, 614 (1992) [hereinafter Sweeney, Defending a Process].

D.H. Kaye, The Admissibility of DNA Testing, 13 Cardozo L.Rev. 353, 354 (1991).

Id. See also Sweeney, Defending a Process at 616, n. 40.

Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 Jurimetrics 449 (Summer 1993) [hereinafter Kreiling, DNA Technology].

Sweeney, Defending a Process at 616.

Id. See also David T. Wasserman, The Morality of Statistical Proof and the Risk of Mistaken Liability, 13 Cardozo L.Rev. 935, 972 (1991) (concluding that "as the number and variability of the polymorphisms utilized in the typing procedure increases, the odds of two people having the same profile become vanishingly small.") For a detailed description of DNA molecules and an explanation of how differences in people's DNA structure can be used to identify them, see People v. Watson, 257 Ill. App.3d 915, 196 Ill.Dec. 89, 92-94, 629 N.E.2d 634, 637-39 (1994).

According to Dr. Ronald Action, one of two defense experts who testified at the evidentiary hearing in this case, DNA profiling has been used as a forensic tool since the mid 1980's. See also Kreiling, DNA Technology at 456-57.

If an entire DNA strand could be analyzed and compared to another, it would be immediately apparent whether the two had come from the same individual. However, the DNA strand is so long that it is impossible under current technology to analyze and decode it from beginning to end. To determine whether two DNA strands came from a single donor, therefore, scientists must find and examine the smaller, highly polymorphic regions on each. If several of these extremely variable areas on each tested DNA specimen match, there is a high probability that both specimens came from one person.

See State v. Bible, 175 Ariz. 549, 858 P.2d 1152, 1180 (1993). For a more detailed discussion of the seven steps followed in the RFLP analysis, see Cauthron, 846 P.2d at 508-10; Polk v. State, 612 So.2d 381, 388-93 (Miss. 1992). See also Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); Curin, 565 N.E.2d at 445-48; Vandebogart, 616 A.2d at 486-88; Castro, 545 N.Y.S.2d at 990-92. See also Kreiling, DNA Technology, supra; Daniel C. Burke Brian J. Whiteman, Argue With Science? The Admissibility Debate Surrounding DNA Identification, 7 Journal of Legal Commentary 597, 600-60 (1992); William C. Thompson Simon Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va.L.Rev. 45, 64-76 (1989) [hereinafter Thompson Ford, DNA Typing].

This is accomplished by using "probes," which "lock onto polymorphic DNA segments that occur only once on the human DNA chain." Sweeney, Defending a Process at 621. When Lifecodes tested Taylor's DNA, it used organically cloned probes. It now uses synthetic probes which reduce the incidence of biological continuation associated with organic probes that can cause flawed test results. However, Dr. Baird, the Lifecodes geneticist who supervised Taylor's test, testified during the evidentiary hearing there was specific evidence that Taylor's test had not been contaminated.

During the evidentiary hearing, Dr. Baird from Lifecodes testified that at the time Taylor's DNA was analyzed, the scientists there used visual criteria to determine whether two tested samples "matched." Obviously, the scientists who performed this visual evaluation concluded that Taylor's specimen matched the sample found on the victim and the victim's clothing. In 1989, Lifecodes began utilizing both visual and numerical criteria to determine whether two samples match. Baird testified that the subjected Taylor's test results to the numerical test and concluded that the samples matched under these criteria. First Evid.Hrg.Tr. II, p. 116.

See Hooks v. State, 862 P.2d 1273, 1278-79 (Okla. Cr. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1993) (limiting admission of expert testimony when offered only to show that defendant did not possess intent to commit crime); Woodruff v. State, 846 P.2d 1124, 1136 (Okla. Cr. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993) (concluding trial court properly admitted expert testimony describing how rope tied as garrotte could be used as a weapon); Bechtel v. State, 840 P.2d 1, 8 (Okla. Cr. 1992) (concluding that expert was qualified to testify about battered woman syndrome); Moore, 788 P.2d at 398 (concluding that expert testimony that hair comparison results meant defendant was in victim's house was properly admitted under section 2702); Fowler v. State, 779 P.2d 580, 584 (Okla. Cr. 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990) (concluding that police officer's demonstration of how gun used in robbery would have been held and fired was properly admitted under section 2702); Berry v. State, 753 P.2d 926, 929 (Okla. Cr. 1988) (concluding that police officer's testimony on severity of victim's injuries was properly admitted under section 2702); Coslow v. State, 748 P.2d 999, 1000-01 (Okla. Cr. 1988) (concluding that drug rehab director's testimony was properly denied under section 2702); Marr v. State, 741 P.2d 884, 886 (Okla. Cr. 1987) (concluding that policeman's testimony about effects of alcohol on car wreck was properly admitted under section 2702); Smith v. State, 737 P.2d 1206, 1212 (Okla. Cr. 1987), cert. denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987) (concluding that medical examiner was qualified under section 2702 to give opinion about origin of hair); Roubideaux v. State, 707 P.2d 35, 39 (Okla. Cr. 1985) (concluding that expert witness's testimony concerning whether witness's memory of events was reliable properly admitted under section 2702); Smith v. State, 656 P.2d 277, 280-81 (Okla. Cr. 1982) (concluding that expert witness's testimony was properly excluded under section 2702).

Yell, 856 P.2d at 996 (quoting Frye, 293 F. at 1014). See also Davenport, 806 P.2d at 660 (Parks, J., Dissenting). Unlike Oklahoma, many Frye jurisdictions have either developed the traditional "general acceptance" standard beyond its literal meaning, or combined the Frye analysis with other admissibility criteria. For example, the New York Court of Appeals has held that the Frye test "is not whether a particular procedure is unanimously endorsed by the scientific community, but whether it is generally acceptable as reliable." Castro, 545 N.Y.S.2d at 986-87. See also Bible, 858 P.2d at 1183 (holding that scientific evidence which passes muster under Frye is admissible "subject to a foundational showing."); Nelson v. State, 628 A.2d 69 (Del. 1993) (applying a combination of Frye and rules of evidence); Houser, 490 N.W.2d at 178 (concluding Frye test is only first of several criteria that must be satisfied before novel scientific evidence may be admitted); Cauthron, 846 P.2d at 505 (holding that "[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted."); United States v. Porter, 618 A.2d 629, 634 (D.C.App. 1992) (concluding that the Frye test "begins — and ends — with. . . whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology."); State v. Montalbo, 73 Haw. 130, 828 P.2d 1274, 1280 (1992) (concluding that court should weight general acceptance of scientific theory along with five other factors to determine whether such evidence should be admitted); People v. Axell, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411, 421 (1991) (holding that "[u]nder the Kelly/Frye rule, the proponent must establish [as a condition of admissibility] the reliability of the method, usually by expert testimony, that the witness furnishing the testimony is properly qualified as an expert to give an opinion on the subject, and that correct scientific procedures were used in the particular case."); People v. Adams, 195 Mich. App. 267, 489 N.W.2d 192, 197 (1992), modified on other grounds 441 Mich. 916, 497 N.W.2d 182 (1993) (concluding that scientific tests need not be infallible, but that reasonable certainty follow from them); State v. Schwartz, 447 N.W.2d 422, 424 (Minn. 1989) (rephrasing the Frye standard to require that experts in the field generally to agree that the evidence is reliable and trustworthy); State v. Pennington, 327 N.C. 89, 393 S.E.2d 847, 852-53 (1990) (emphasizing nonexclusive adherence to Frye formula).

See Davenport, 806 P.2d at 661. See also Yell, 856 P.2d at 996.

___ U.S. ___, 113 S.Ct. 2786, 2793, 125 L.Ed.2d 469 (1993).

We have previously considered federal opinions in interpreting our State Evidence Code provisions. See Beck v. State, 824 P.2d 385, 389 (Okla. Cr. 1991) (concluding that in the absence of state cases interpreting a particular section of the Evidence Code, this Court will look to United States Supreme Court's construction of counterpart section in Federal Rules of Evidence).

Daubert, ___ U.S. at ___, 113 S.Ct. at 2794 (citations omitted).

The Arizona Supreme Court in Bible, 858 P.2d at 1181, set forth some of the Frye test's significant shortcomings:
New discoveries are not immediately accepted in the scientific community. Rigid application of the general acceptance test would forbid judicial use of a new discovery even though there may be direct experimental or clinical support for the principle. Furthermore, history shows that generally accepted scientific theory is not always correct.
In a concurring opinion in Hopkins, 579 N.E.2d at 1306, one judge stated that in recent years "courts in at least thirty jurisdictions have limited, avoided, or rejected the Frye requirement." See also Montalbo, 828 P.2d at 1279-80 (recognizing that Frye has been subject to scathing attacks for "causing unacceptable delays in the admissibility of reliable evidence due to the lag between the development of new techniques and their acceptance in the scientific community. . . . [for being] ambiguous and difficult to apply. . . . [and for] obscuring the critical question of the relevance of scientific evidence to the issues in dispute."); I John W. Strong, et al., McCormick on Evidence § 203 at 873-76 (4th ed. 1992) (concluding that Frye's objectives can be attained with fewer limitations on the admissibility of scientific evidence, the commentator writes that "[a]ny relevant conclusions supported by a qualified expert witness should be received unless there are distinct reasons for exclusion. . . [such as] prejudicing or misleading the jury or consuming undue amounts of time."). See also Andrews v. State, 533 So.2d 841, 846 (Fla.App. 5 Dist. 1988) (holding that an admission standard based upon relevancy is preferable to the Frye general acceptance approach "which is predicated on a `nose counting.'"); Caldwell, 393 S.E.2d at 441 (concluding that "the trial court makes [the admissibility] determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.")

As of the date of this writing, seventeen reported state court opinions have considered Daubert. In only two of these opinions did the highest state court abandon Frye in favor of Daubert. See State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993); Department of Social Services v. McCarty, 506 N.W.2d 144 (S.D. 1993). Three courts adopted the Daubert federal rules of evidence approach, but emphasized that they had never relied exclusively upon Frye. See Nelson, 628 A.2d 69; Springfield v. State, 860 P.2d 435 (Wyo. 1993); State v. Futch, 123 Or. App. 176, 860 P.2d 264 (1993). Five of the opinions were rendered by appellate courts which left to their respective supreme courts the decision whether to abandon Frye and adopt Daubert. See State v. Bauer, 512 N.W.2d 112 (Minn.App. 1994), affirmed 516 N.W.2d 174 (1994); Watson, 629 N.E.2d 634; State v. Davis, 860 S.W.2d 369 (Mo. App.E.D. 1993); Mehlberg, 188 Ill.Dec. 598, 618 N.E.2d 1168; State v. Alt, 504 N.W.2d 38 (Minn.App. 1993). The Pennsylvania Supreme Court held that Daubert did not require state court abolition of Frye, and left the issue to another day. See Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 400 n. 2 (1994). The Arizona Supreme Court took a similar approach, concluding that it would adhere to Frye and its shortcomings and leave to another day the decision whether to adopt Daubert. See Bible, 858 P.2d at 1183. The highest courts in two states specifically rejected the Daubert federal rules of evidence approach and maintained their loyalty to Frye. See people v. Wesley, 83 N.Y.2d 417, 633 N.E.2d 451, 611 N.Y.S.2d 97 (1994); Fishback v. People, 851 P.2d 884 (Colo. 1993). The New Hampshire Supreme Court refused to decide whether Daubert and the federal rules of evidence superseded Frye. See State v. Cressy, 137 N.H. 402, 628 A.2d 696 (1993). Two New York courts did not squarely address the issue. See People v. Moore, 194 A.D.2d 32, 604 N.Y.S.2d 976 (N.Y.A.D. 1993); People v. Santana, 159 Misc.2d 301, 604 N.Y.S.2d 1016 (N.Y.Sup. 1993).

We are mindful that other appellate courts faced with this decision have reached the opposite conclusion. See Bible, 858 P.2d at 1183 ("[N]ot withstanding legitimate criticism of Frye,. . . this is not the case to determine whether Arizona should follow Daubert." See also Fish back, 851 P.2d at 890 (DNA testing "is precisely the sort of scientific evidence which requires application of the Frye test.").

See Paxton v. State, 867 P.2d 1309, 1323, n. 3 (Okla. Cr. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994); Yell, 856 P.2d at 996; Davenport, 806 P.2d at 661; Moore, 788 P.2d at 398; Driskell, 659 P.2d at 356; Henderson, 230 P.2d at 502.

See e.g. Fox v. State, 779 P.2d 562, 571 (Okla. Cr. 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990) (finding that expert testimony describing results of luminal testing met section 2702 requirements; Frye not cited even though Court found it had never approved luminal testing); Kennedy, 640 P.2d at 977 (after mentioning section 2702 and the Frye-plus standard followed by California courts, this Court found that a proper foundation had been laid and that bitemark evidence was thus properly admitted).

See 12 O.S. 1991 § 2403[ 12-2403].

We recognize that in adopting Daubert and applying it to the facts of this case, we will be reviewing the DNA evidence presented against Taylor under a different admissibility standard than was in existence at the time of his trial and subsequent evidentiary hearing. After reviewing the evidence in this case, however, we are confident that it passed muster under Frye. Therefore, our conclusion that the DNA evidence was properly admitted against Taylor is not dependant upon our adoption and application of Daubert.

United States v. Williams, 583 F.2d 1194, 1198 (2d Cir. 1978). See also Porter, 618 A.2d at 634 (concluding that because Frye "general acceptance" test focuses "on counting scientists' votes, rather than [on] verifying the soundness of a scientific conclusion . . . ., the very existence of [a] dispute precludes admission of the testimony."); People v. Shirley, 31 Cal.3d 18, 56, 181 Cal.Rptr. 243, 266, 723 P.2d 1354, 1377 (1982) (en banc) (holding that under the strict "general acceptance" approach, novel scientific evidence should not be admitted if "scientists significant either in number or expertise publicly oppose [such evidence]. . . ."); Cauthron, 846 P.2d at 514 (concluding that the decision whether novel scientific evidence meets Frye standards "rests on the existence of a controversy, not on its resolution.").

Defense counsel maintains that the difference between the Frye and Daubert standards is merely a "linguistic" one. We disagree.

Daubert, ___ U.S. at ___, 113 S.Ct. at 2795.

Id.

Id. at ___, 113 S.Ct. at 2796.

Id. at ___, 113 S.Ct. at 2797 (quoting K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989).

Id. at ___, 113 S.Ct. at 2796.

Id.

Id. In U.S. v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994), the Eighth Circuit Court of Appeals concluded that taking judicial notice per Daubert of the reliability and relevance of expert testimony of DNA profiling evidence did not render it automatically admissible. The court found that the Daubert reliability requirement mandated in each case a "preliminary showing that the expert properly performed a reliable methodology in arriving at his opinion." Martinez, 3 F.3d at 1197 (emphasis added). Mindful of Daubert's admonition to focus the admissibility inquiry on principles and methodology rather than on the conclusions they generate, the Martinez Court finally concluded that "[a]n alleged error in the application of a reliable methodology should provide the basis for exclusion of the opinion only if that error negates the basis for the reliability of the principle itself." Id. at 1198 (emphasis added). We reject the Eighth Circuit's interpretation of Daubert and hold that allegations of error in the testing process affect the weight of scientific or technical evidence but not its admissibility. Compare U.S. v. Davis, 40 F.3d 1069, 1074-75 (10th Cir. 1994) (declining to address apparent circuit split ( see Jakobetz, infra) on this issue).
We recognize some courts have held that "admissibility of specific [DNA] test results in a particular case hinges on the laboratory's compliance with appropriate standards and controls,. . . ." Schwartz, 447 N.W.2d at 428. See also Polk, 612 So.2d at 390, n. 2 (concluding that whether particular test was performed properly goes to admissibility or competency rather than weight or credibility); Adams, 489 N.W.2d at 197 (concluding that trial court can not admit test results until prosecutor establishes in each particular case that generally accepted laboratory procedures were followed); Smith v. Deppish, 807 P.2d at 159 (concluding that results of RFLP testing may be inadmissible on grounds of relevancy or prejudice, or because of sample contamination or chain of custody question); Curnin, 565 N.E.2d at 442-43, n. 7 (concluding that any question as to proper implementation of accepted testing procedures should be resolved by court as threshold question before presenting evidence to jury); Caldwell, 393 S.E.2d at 441.
However, other courts which have considered the issue in this and other contexts have concluded that whether a given test was properly performed affects only the weight and not the admissibility of the evidence and is thus a question for the trier of fact. See U.S. v. Jakobetz, 955 F.2d 786, 797 (2nd Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992) (concluding that rather than make initial determination that evidence is true, courts should submit otherwise admissible evidence to jury and let it "discharge its duties of weighing the evidence, making credibility determinations, and ultimately deciding the facts."); State v. Kalakosky, 121 Wn.2d 525, 852 P.2d 1064, 1072 (1993) (concluding that "[t]he issue of human error in the forensic laboratory is analyzed under ER 702 and is not a part of the Frye test which asks if the theory underlying the science and the RFLP test are generally accepted in the relevant scientific community."); Cauthron, 846 P.2d at 512 (concluding that once trial court determines procedure passes Frye test, questions about whether procedure was properly carried out is for jury); Vandebogart, 616 A.2d at 489-90; Mehlberg, 188 Ill.Dec. at 625, 618 N.E.2d at 1195 (concluding that "any question concerning the specific procedures used by the company or expert goes to the reliability of the evidence and is properly considered by the jury in determining what weight to give this evidence; however, if the procedures used are shown to give an unreliable result, the court may find it necessary to exclude the evidence entirely."); State v. Bauer, 512 N.W.2d 112, 115 (Minn.App. 1994), affirmed 516 N.W.2d 174 (1994); State v. Davis, 860 S.W.2d 369 (Miss. 1993); Porter, 618 A.2d at 636 (concluding that "[a]ny failure by the scientists to adhere to the appropriate procedure is, of course, a proper subject of inquiry, but does not raise an issue which implicates, Frye."); Watson, 196 Ill.Dec. at 99, 629 N.E.2d at 644 (concluding that whether scientifically acceptable test was properly performed is jury question); People v. Thomas, 137 Ill.2d 500, 148 Ill.Dec. 751, 561 N.E.2d 57 (1991), cert. denied, 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1196 (1991); Pennington, 393 S.E.2d at 854; Ford, 392 S.E.2d at 784; Martinez v. State, 549 So.2d 694, 695-96 (Fla. Dist. Ct. App. 1989); Cobey v. State, 80 Md. App. 31, 559 A.2d 391, 398 (1989), cert. denied, 317 Md. 542, 565 A.2d 670 (1989).
This Court has never specifically held that the admissibility of novel scientific procedural conclusions is conditioned upon the procedure having been flawlessly performed. In fact, prior cases addressing the admissibility of scientific evidence indicate that whether the particular testing procedures utilized were properly performed goes to the weight of the evidence produced and not its admissibility. See Williamson v. State, 812 P.2d 384, 405 (Okla. Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992) (concluding that questions regarding expert's conclusions are for jury); Moore, 788 P.2d at 398 (concluding that whether expert properly performed hair comparison test goes to weight of evidence and is thus a jury question); But see Plunkett v. State, 719 P.2d 834, 840 (Okla. Cr. 1986), cert. denied, 479 U.S. 1019, 107 S.Ct. 675, 93 L.Ed.2d 725 (1986) (while Court held test at issue must be "dependable" to be admissible, a close reading of the case reveals that this dependability requirement concerned the general acceptance prong of Frye and was not intended to force the proponent of novel scientific evidence to prove as a precondition to admissibility that the test at issue was performed properly). We will continue under Daubert to adhere to the position we maintained under Frye: issue over proper performance of testing procedures used to generate scientific or technical evidence affect only the weight of that evidence and not its admissibility.

See Clayton v. State, 840 P.2d 18, 28 (Okla. Cr. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1992); Moore, 788 P.2d at 397; Phillips v. State, 756 P.2d 604, 610 (Okla. Cr. 1988).

See Fox, 779 P.2d at 571 (citing the Frye test but not citing the Frye case, Court reviewed trial court's decision on admissibility of novel scientific evidence under abuse of discretion standard). See also Plunkett, 719 P.2d at 840; Driskell, 659 P.2d at 356; Kennedy, 640 P.2d at 978; Fowler v. State, 512 P.2d 238, 244 (Okla. Cr. 1973).

See Bechtel, 840 P.2d at 7 (Court independently reviewed available sources on the novel "battered woman syndrome" before concluding that trial judge's decision not to admit this evidence was improper); Davenport, 806 P.2d at 658 (concluding that "[t]his Court has the right to make an independent search of appropriate medical and legal doctrines to determine if the [child accommodation] syndrome is generally accepted and meets the proper test.").

A number of jurisdictions conduct an independent review of trial court's decisions admitting or excluding novel scientific evidence. See Cauthron, 846 P.2d at 505; Bible, 858 P.2d at 1181; Vandebogart, 616 A.2d at 491 (rejecting abuse of discretion standard and adopting an independent and thorough standard of review for a trial judge's Frye decision); Jones v. United States, 548 A.2d 35, 40 (D.C.App. 1988) (concluding that "in evaluating whether a scientific technique has gained general acceptance, appellate courts review the trial court's analysis de novo."); Futch, 860 P.2d at 269 ("Notwithstanding the usual deference to trial court discretion, we as an appellate court retain our role to determine the admissibility of scientific evidence under the Oregon Evidence Code.") (citation omitted). But see United States v. Bonds, 12 F.3d 540, 553 (6th Cir. 1993) (holding that function of appellate court is to assess district court findings, not to conduct an independent review that takes into account evidence which supported admissibility ruling as well as newly developed evidence not available to the trial court); Mehlberg, 188 Ill.Dec. at 621, 618 N.E.2d at 1191 (holding that appellate review of trial court's decision admitting or excluding expert testimony on novel scientific subject is for abuse of discretion); Montalbo, 828 P.2d at 1281 (same); State v. Brown, 470 N.W.2d 30, 32 (Iowa 1991) (holding that trial court's admissibility decision regarding expert testimony will be reversed only if discretion abused and defendant suffered prejudice). Of course, the trial court's determination concerning a particular expert's personal qualifications is reviewed for an abuse of discretion. See Cauthron, 846 P.2d at 507.

Porter, 618 A.2d at 635 (citations omitted).

Dr. William Shields, one of the defense experts who testified during the evidentiary hearing, stated that the RFLP method Lifecodes follows is generally accepted in the scientific community. He also testified that after viewing the tested samples, he agreed with Lifecode's determination that they matched both visually as well as numerically. First Evid.Hrg.Tr.I, p. 166-68. The other defense witness, Dr. Ronald Action, agreed that the scientific community has generally accepted DNA profiling technology — specifically the RFLP method — but claimed that three controversial areas exist concerning forensic application. Second Evid.Hrg.Tr.II, p. 71. First, there are no standards governing these testing labs. Second, the matching methods different labs utilize are imprecise. Third, the statistical probability calculations are faulty.

One pair of commentators have written that "[t]here is nothing controversial about the theory underlying DNA typing. Indeed, this theory is so well accepted that its accuracy is unlikely even to be raised as an issue in hearings on the admissibility of the new tests." Thompson Ford, DNA Typing at 60.

Many courts — those following the Frye "general acceptance test" and those applying a more liberal rules of evidence type approach such as in Daubert — have found specifically that the RFLP analysis Lifecodes followed in this case has been generally accepted in the scientific community. See Cauthron, 846 P.2d at 512 ( Frye analysis); Axell, I Cal.Rptr.2d at 427 (same); Smith v. Deppish, 807 P.2d at 159 (same); State v. Davis, 814 S.W.2d 593, 603 (Mo. 1991), cert. denied, 502 U.S. 1047, 112 S.Ct. 911, 116 L.Ed.2d 812 (1991) (same); People v. Miles, 217 Ill. App.3d 393, 160 Ill.Dec. 347, 577 N.E.2d 477, 483 (1991) (same); Ford, 392 S.E.2d 781, 784 (same); Cobey, 559 A.2d at 398 (same); People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643, 659 (Co.Ct. 1988), affirmed 183 A.D.2d 75, 589 N.Y.S.2d 197 (1989), Snowden v. State, 574 So.2d 960, 966 (Ala. Crim. App. 1990) ( Frye-plus test); Castro, 545 N.Y.S.2d at 999 (evidence passed Frye-plus test but was excluded because of improper procedures used by Lifecodes); State v. Wimberly, 467 N.W.2d 499, 506 n. 5 (S.D. 1991) (rules of evidence approach); Kelly v. State, 792 S.W.2d 579, 583 (Tex. Ct. App. 1990), affirmed, 824 S.W.2d 568 (Tex.Crim. App. 1992) (same); State v. Pennell, 584 A.2d 513, 515 (Del.Super. 1989) (same); Martinez, 549 So.2d at 695, Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775, 783 n. 10 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990); Pennington, 393 S.E.2d at 853 (rules of evidence approach which incorporates Frye); State v. Woodall, 182 W. Va. 15, 385 S.E.2d 253, 260 (1989) (same).

See Martinez, 3 F.3d at 1197 (holding that courts may now take judicial notice of the reliability of the general theory and techniques of DNA profiling); Jokobetz, 955 F.2d at 799 (same).

Our admissibility determination does not include the statistical probability component of DNA evidence, which we address infra.

In this case, Lifecodes used the restriction fragment length polymorphism ("RFLP") method to create a profile of Taylor's DNA. While Lifecodes has since made some changes in its profiling technique, the original method employed in this case was not proven unreliable. For a discussion of the seven steps followed in the RFLP analysis, see Sweeney, DNA Typing at 618-23. See also Castro, 545 N.Y.S.2d at 990 n. 3 (listing of numerous articles which support the court's conclusion that the RFLP analysis has gained general scientific acceptance.).
Another method of DNA profiling is the Polymerase Chain Reaction (PCR) analysis, also known as "DNA Amplification." It is newer and less specific and thus not as widely accepted in the scientific community as the RFLP method. Id. at 617 But see State v. Lyons, 124 Or. App. 598, 863 P.2d 1303, 1309 (1993) (concluding that "[t]here is no dispute that the PCR method is generally accepted within the field.")

While this admissibility standard is more flexible than the Frye "general acceptance" test this Court has traditionally applied, we note that the evidentiary hearing judge found the DNA match evidence admissible under the stricter Frye standard. In the order remanding for evidentiary hearing, this Court directed the judge to answer three questions: first, whether DNA fingerprinting is generally accepted in the scientific community; second, whether the statistical conclusions derived from DNA fingerprinting are generally accepted in the scientific community; and third, whether the procedures used in the instant case comported with the generally accepted scientific procedures and or techniques.

According to Wesley, 611 N.Y.S.2d at 103, 633 N.E.2d at 457, "no peer review articles have discredited the RFLP procedures used by Lifecodes."

See First Evid.Hrg.Tr. 1, 168-69.

See First Evid.Hrg.Tr. 1, at 128. Dr. Baird also testified that Lifecodes performs a series of quality control steps during the testing procedure. Id. at 127. Two commentators have also noted that the theory underlying DNA typing has been "repeatedly put to the test and has successfully predicted subsequent observations." Thompson and Ford, DNA Typing at 60-61. See also Adams, 489 N.W.2d at 197 (concluding that "[i]f the laboratory fails to take the proper steps in the procedure, no readable result is visible on the autoradiograph.").

See supra n. 52.

See 12 O.S. 1991 § 2403[ 12-2403]. Neither the trial judge nor the evidentiary hearing judge made an explicit finding under section 2403.

Sweeney, Defending a Process at 643. See also Jonathan J. Koehler, DNA Matches and Statistics: Important Questions, Surprising Answers, 76 Judicature 222, 224 (Feb-Mar. 1993).

Bible, 858 P.2d at 1185 (footnotes omitted) (emphasis added). For a general explanation of the statistical analysis portion of DNA profiling evidence, see Axell, 1 Cal.Rptr.2d 411 at 417-419. An even more detailed discussion can be found in Castro, 545 N.Y.S.2d at 992, 999.

The frequency with which a particular DNA pattern will occur in a given population is predicted by determining the frequency with which that pattern occurs in the database samples. Dr. Baird testified that Lifecodes's database was derived from random, unrelated individuals who had submitted blood samples for paternity testing. At the time of trial in 1989. Lifecodes's database contained data from African American and Caucasian individuals throughout the United States.

Experts in this case applied the "product rule" to obtain an estimate of the frequency with which Taylor's tested DNA sequence would occur in the relevant segment of the population. Generally speaking, the frequency with which a particular sequence occurs in the database population is multiplied by the frequency with which each other matched sequence occurs in the database. The final figure represents the estimated odds that another individual would possess all of the tested, matching DNA sequences. See Cauthron, 846 P.2d at 513.

State's expert Dr. William Shields provided the 1 in 97 billion figure at trial. During the subsequent evidentiary hearing, however, he testified that the final statistical figure in Taylor's case was 1 in 334 billion. This discrepancy inured to Taylor's benefit, since his jury received the more modest 1 in 97 billion figure. Dr. Shields also testified at the evidentiary hearing that using Lifecodes's current, more conservative approach, the final statistical figure in Taylor's case would be 1 in 10 billion. This figure is lower than 1 in 97 billion, but still reflects the great improbability that the match between Taylor's DNA and the DNA obtained from the crime scene and victims was random.

Two of the State's experts testified that the population genetics principles (including the product rule) used to calculate the statistical significance of the DNA match evidence against Taylor are universally utilized by population geneticists. As one court has recently stated, "[p]robability calculations such as this are rendered daily in both experimental and theoretical fields of science." People v. Soto, 30 Cal.App.4th 340, 35 Cal.Rptr.2d 846 (Cal.App. 4 Dist. 1994). Therefore, it is clear that scientists do not question the soundness of the population genetics formulas themselves. Rather, they claim that because of incorrect assumptions about the manner in which populations mate, applying those standard population genetics formulas to DNA database figures provides unsound statistical results. See Id. (nothing defendant's argument that "[a]pplication of the product rule — the factor of two in the frequency calculation, . . . is . . . disputed within the scientific community because of the possibility of ethnic, demographic or cultural substructuring."). For an in-depth discussion of potential problems with substructuring, "linkage disequilibrium" and "Hardy-Weinberg equilibrium." See Cauthron, 846 P.2d at 512-517.

Compare Richard C. Lewontin Daniel L. Hart, Population Genetics in Forensic DNA Typing (Dec. 20, 1991) Science, at p. 1745 and Ranajit Chakraborty Kenneth K. Kidd, The Utility of DNA Typing in Forensic Work (Dec. 20, 1991) Science, at p. 1735.

"The National Research Council, which conducts studies and investigations in the public interest, was organized by the National Academy of Sciences in 1916 in order to provide for broader participation by American scientists and engineers in the work of the Academy. The Academy was charted by the U.S. Congress in 1863." McCarty, 506 N.W.2d at 146, n. 2.

The NRC Committee Report was introduced at the evidentiary hearing in this case.

Cauthron, 846 P.2d at 504.

During the evidentiary hearing, Dr. Baird testified that since Taylor's trial, Lifecodes has taken a more conservative approach in calculating its statistical probability figures. Lifecodes now follows a "straight binning" method of estimating the frequency with which a particular DNA sequence occurs in a database population, rather than the "weighted Gaussian" method it used at the time of Taylor's trial.

Kreiling, DNA Technology at 462. But see Porter, 618 A.2d at 637-38, quoting Committee on DNA Technology in Forensic Science, National Research Counsel, DNA Technology in Forensic Science (1992 at pp. 12, 80, 94 ("The [Committee] report does not, however, choose sides in the [statistical analysis] debate, but instead `assumes for the sake of discussion that population substructure may exist. . . .'").

Eric S. Lander Bruce Budowle, DNA Fingerprinting Dispute Laid to Rest, Nature (Oct. 27, 1994) 735, 736 [hereinafter "Lander Budowle"]. Some courts responded to the NRC Committee Report by conditioning admission of DNA statistical evidence on application of the ceiling principle. See People v. Wallace, 17 Cal.Rptr.2d 721, 724, 14 Cal.App.4th 651 (1993) (concluding that "new methods of statistical calculation proposed by the National Research Council will likely receive general acceptance resulting in future admissibility of DNA analysis evidence. . . ."); Vandebogart, 616 A.2d at 494 (remanding case to trial court for determination of whether ceiling principle is a generally accepted technique). However, two authors agree that the NRC Committee did not intend for the ceiling principle to be used exclusively, but only as "an ultra-conservative calculation which did not bar experts from providing their own `best estimates' based on the product rule." Lander Bowle at 737. The statistical portion of the DNA evidence against Taylor was not calculated using the ceiling principle because that principle had not vet been fashioned.

See Devlin, Risch Roeder, Statistical Evaluation of DNA Fingerprinting: A Critique of the NRC's Report (Feb. 5, 1993) Science at p. 748; Aldhous, Geneticists Attack NRC Report As Scientifically Flawed (Feb. 5, 1993) Science at p. 755.

Lander Budowle at 735.

We note that some courts which have addressed DNA evidence have declined to subject the statistical component to the traditional "general acceptance" admissibility test, concluding that questions about underlying assumptions upon which those statistics were based should be left to the jury. See Wesley, 611 N.Y.S.2d at 103, 633 N.E.2d at 457 (concluding that "[d]efendant's challenges to the population studies relied on by Lifecodes to estimate the probability of a coincidental match go not to admissibility, but to the weight of the evidence, which should be left to the trier of fact."); Springfield, 860 P.2d at 447 (concluding that "any question concerning the size of the database or the Hardy-Weinberg equilibrium goes to the weight of the evidence and is properly left to the jury. . . . . [T]he potential impact of substructure on the accuracy of such estimates is, in the final analysis, a matter of weight for the jury to consider, rather than of admissibility."); Montalbo, 828 P.2d at 1283 (concluding that "[i]f valid, defendant's objections [to statistical figure] would go to the weight rather than the admissibility of the evidence. . . ."); Smith v. Deppish, 807 P.2d at 159 (same); Axell, 1 Cal.Rptr.2d at 431 (same).
Other courts have disagreed, concluding that the statistical component of DNA profiling evidence is an integral part of that evidence which must also pass muster under current admissibility standards. See Watson, 196 Ill.Dec. at 99, 629 N.E.2d at 644 (concluding that FBI's statistical calculation is subject to Frye test); Nelson, 628 A.2d at 76 (rejecting the State's overly simplistic argument that statistics go simply to the weight, not the admissibility of the DNA matching evidence); Porter, 618 A.2d at 640 (concluding that "[s]ince the probability of a coincidental match is as essential part of the DNA evidence, and since there is no consensus as to the accuracy of the FBI's calculation, we decline to hold that the defense objections to that precise calculation go only to its weight." (Emphasis in original). We agree with those courts which have held that the statistical component of DNA profiling evidence must meet any admissibility requirement imposed on the match evidence, and have analyzed the statistical evidence in this case accordingly.

The court found most significant Lander Budowle's recent conclusion that the DNA fingerprinting wars are over. It also noted that "two famous adversaries to the admission of DNA evidence, Eric Lander and Daniel Hartle recently shifted their position on the issue, accepting the frequency determinations based on the ceiling method along with the product rule formulation." People v. Soto, 35 Cal.Rptr.2d at 357. Finally, the court acknowledged a recent FBI report which concluded that "population substructuring is not `forensically significant' in estimating the random likelihood of a particular DNA profile." Id. at 858 (quoting U.S. Dept. Justice, FBI Rep., VNTR Population Data: A Worldwide Study, Vol. IA, p. 2 (1993).

We agree with the overwhelming majority of courts and commentators that evidence of a DNA match is not admissible without the accompanying statistical expression of the significance of that match. See e.g., Lenard v. State, 796 P.2d 636, 637 (Okla. Cr. 1990) ("The actual testing of the blood taken in individual [paternity] cases is meaningless without reference to the . . . statistics.") See also Cauthron, 846 P.2d at 516 ("Testimony of a match in DNA samples, without the statistical background or probability estimates, is neither based on a generally accepted scientific theory nor helpful to the trier of fact."); Waston, 196 Ill.Dec. at 101-02, 629 N.E.2d at 646-47 (same); Nelson, 628 A.2d at 76-77 (same); Fishback, 851 P.2d at 893, n. 18; Curnin, 565 N.E.2d at 442, n. 7 (1991); Vandebogart, 616 A.2d at 494 (same); Commonwealth v. Lanigan, 413 Mass. 154, 596 N.E.2d 311, 314 (1992) (same); People v. Barney, 10 Cal.Rptr.2d 731, 745, 8 Cal.App.4th 798 (1992) (same); DNA Committee Report at 74 ("To say that two patterns match, without providing any scientifically valid estimate . . . of the frequency with which such matches might occur by chance, is meaningless.") But see Caldwell, 393 S.E.2d at 444 (DNA identification evidence ruled admissible but accompanying statistical figures ruled inadmissible). Thus, if we had concluded that the statistical evidence in this case was inadmissible, we would have been forced to conclude that the DNA match evidence was inadmissible as well.

Brown v. State, 751 P.2d 1078, 1079 (Okla. Cr. 1988).

There was no such prejudicial testimony in this case.

According to Arthur J. Eisenberg, a State's expert who testified at the evidentiary hearing, even those statistical figures which might underestimate the likelihood of a random match do not appreciably overemphasize the fact that random matches are quite rare: "In my opinion, a number of one in a million, one in a hundred million, one in a billion, although it may seem like a tremendous difference, I think it still conveys the idea that the DNA profile is extremely rare." First Evid.Hrg.Tr. II, p. 230. See also Wallace, 17 Cal.Rptr.2d at 726 (finding that "it matters little to a jury whether the odds are one in one million or one in 26 million. Either estimate is devastating to the defendant."). See also Lander Budowle at 738 (concluding that "[c]onservative calculations have had no noticeable impact on the use of DNA evidence. In the vast majority of cases, a jury needs to know only that a particular DNA pattern is very rare to weigh it in the context of a case: the distinction between [astounding but varying] frequencies . . . is irrelevant in the case of suspects identified by other means.").

In each case involving expert testimony, however, the trial court retains its duty to determine whether a particular witness meets expert qualifications. Trial judges must also ensure that proponents of expert testimony lay a proper foundation. These matters may be handled at trial unless the trial judge determines in a particular case that the interests of justice would be better served if these details were discussed outside the jury's presence. On appeal, trial judges' decisions concerning expert qualifications and foundational requirements will be reviewed for abuse of discretion.

DNA evidence which has been generated through new and different technology fits within this category. See U.S. v. Martinez, 3 F.3d at 1197.

These requirements are based upon section 702 in the Federal Rules of Evidence and, therefore, its counterpart section 2702 in the Oklahoma Evidence Code.

Four factors, neither exclusive nor necessarily dispositive, may aid the reliability determination: first, whether the scientific method at issue has been or can be tested; second, whether the theory has been subjected to peer review; third, whether the scientific procedure has a known or potential rate of error; and fourth, whether the scientific evidence at issue has gained acceptance in the relevant scientific community.

In a second proposition, Taylor claims that if this Court found he waived any error concerning admission of the DNA evidence, his trial counsel should be deemed ineffective. After Taylor's initial appellate brief was filed, this Court ordered an evidentiary hearing on the admissibility of DNA evidence and granted Taylor experts at State expense. We have fully considered whether the State's DNA evidence was properly admitted against Taylor. Accordingly, this proposition is moot.

Williams v. State, 807 P.2d 271, 273 (Okla. Cr. (1991)

Id. See also 21 O.S. 1991 § 1431[ 21-1431].

Williams, 807 P.2d at 273.

On October 29, 1990, this Court granted Taylor's motion to file his supplemental proposition of error.

See Doyle v. State, 785 P.2d 317, 325 (Okla. Cr. 1989).

The appeal record does not contain a transcript of the post-examination competency hearing. However, the trial judge's Order to Resume Criminal Proceedings reflects that the only party present at the hearing was the District Attorney.