Day v. State

Full title: Jason Scott DAY, Appellant, v. The STATE of Oklahoma, Appellee.

Court: Court of Criminal Appeals of Oklahoma.

Date published: Jun 18, 2013

303 P.3d 291 (Okla. Crim. App. 2013)

Opinion

No. F–2012–143.

2013-06-18

Jason Scott DAY, Appellant, v. The STATE of Oklahoma, Appellee.

¶ 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.

SMITH

¶ 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 is so controversial as to require a Daubert hearing.¹

1 Day also relies on cases from other jurisdictions. For his claim that the trial court abdicated its duty to exercise discretion Day cites two Tenth Circuit cases, Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083 (10th Cir.2000) and U.S. v. Velarde, 214 F.3d 1204 (10th Cir.2000). In these cases the Tenth Circuit interprets the Daubert and Kumho gatekeeping function to require that the district court make findings of fact on the record to support its decision to either apply Daubert or find that Daubert does not apply. This Court has not imposed that requirement. Furthermore, the Tenth Circuit does not, as Oklahoma does, restrict Daubert to novel scientific, technical or specialized evidence. Day also inexplicably relies on a recent per curiam case from the Texas Court of Criminal Appeals, Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App.2012). In that case, which was not an SBS case, the expert testified at an evidentiary hearing that he had re-evaluated the case in light of scientific advances, changed his 1995 opinion, and now could not conclude how the child had died. Neither the per curiam order nor the five separate concurring and dissenting opinions suggest that SBS or abusive head trauma must pass a Daubert inquiry before being admissible.

¶ 9 Day argues that the State's witnesses relied solely on SBS, or abusive head trauma, to explain N.E.'s injuries. Day claims that there was no evidence N.E. suffered fractures, broken bones, or other external evidence of abuse, and no evidence that he himself was anything but caring to her. This characterization of the evidence omits the bruises on N.E.'s face and head, and underneath her scalp, which factored into the experts' conclusion that she suffered from abusive head trauma. As the trial court did not err in admitting the expert testimony without a Daubert hearing, we need not address Day's argument that he was prejudiced by its admission. The trial court did not abuse its discretion in denying Day's request for a Daubert hearing, and in admitting the expert evidence regarding abusive head trauma or SBS.

¶ 10 In connection with this proposition, Day filed a Rule 3.11(A) motion asking to supplement the record with the affidavit of Bexar County (Texas) Deputy Chief Medical Examiner Molina. Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013). He argues this affidavit is also relevant to the Proposition II issue of appropriate medical testimony, and to the Proposition III sufficiency of the evidence argument. Day argues that the information in this affidavit is necessary under Rule 3.11(A) for this Court to conduct a thorough and painstaking review of the issues relating to medical testimony. Day misunderstands the appropriate use of this subsection. Rule 3.11(B) allows defendants to develop additional facts relating to trial counsel's performance, where counsel is alleged to be ineffective, and the facts could not have been presented to the trial court. Strong v. State, 1995 OK CR 50, ¶ 4, 902 P.2d 1101, 1103. We have independently allowed supplementation of the record under Rule 3.11(A) where a defendant submitted affidavits from parties below, directly involved in the trial, which addressed a record issue of great importance in a capital trial. Coddington v. State, 2011 OK CR 17, ¶ 21, 254 P.3d 684, 698. Day's proffered evidence does not fall into that category. Rule 3.11(A) is not intended to allow parties to bolster a trial record with yet more expert testimony; if it were, this Court would be inundated with requests to submit extra-record documents and opinions. Such material is not necessary for us to make a determination of the issues. Coddington, 2011 OK CR 17, ¶ 21, 254 P.3d at 698;Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013). Day's motion to supplement the record is denied.

¶ 11 We find in Proposition II that the trial court did not abuse its discretion in admitting expert testimony. Expert testimony is that which is based on technical or specialized knowledge, skill, training, or education, and which assists the trier of fact. 12 O.S.2001, § 2702. An expert opinion may embrace the ultimate issue, as long as it does not tell jurors what result to reach. Ball v. State, 2007 OK CR 42, ¶ 15, 173 P.3d 81, 86;Warner, 2006 OK CR 40, ¶ 22, 144 P.3d at 863. We review admission of expert testimony for abuse of discretion. Ball, 2007 OK CR 42, ¶ 15, 173 P.3d at 86. Expert evidence which incidentally corroborates the State's evidence may be admissible, since generally expert testimony tends to show that another witness “either is or is not telling the truth.” Davenport v. State, 1991 OK CR 14, ¶ 16, 806 P.2d 655, 659. Day complains that several experts told jurors what result to reach, by testifying that the victim suffered non-accidental inflicted trauma. The primary issue in this case was whether Day abused N.E. and caused her death. None of the experts testified that Day inflicted the trauma which resulted in N.E.'s death, or even that they could determine who inflicted the injuries. The expert testimony incidentally corroborates the other evidence suggesting that Day committed the crime, but it does not tell jurors what result to reach.

¶ 12 Day argues that Dr. Stuemky in particular told jurors that Day committed the abuse and caused N.E.'s death. On the contrary. Stuemky testified that N.E.'s injuries were significant and mortal, the onset of symptoms would have been almost immediate, and she would not have appeared normal for any length of time after receiving the injuries; he said he believed the injuries had to have been inflicted after the victim's mother went to work, since at that time N.E. had a normal feeding. Jurors decide what weight and credibility to give to conflicting evidence. Warner, 2006 OK CR 40, ¶ 40, 144 P.3d at 863. Stuemky's testimony certainly narrowed the time period during which the abuse was inflicted to a time when N.E. was alone with Day. However, this incidental corroboration of other evidence did not tell jurors what result to reach. Romano v. State, 1995 OK CR 74, ¶ 25, 909 P.2d 92, 110.

¶ 13 We find in Proposition III that, taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Day willfully or maliciously used unreasonable force and injured N.E., and that injury resulted in her death. Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559; 21 O.S.SUP.2006, § 701.7(C); OUJI–CR 2d 4–65A. The jury is the exclusive finder of fact, and we accept all reasonable inferences which tend to support its verdict. Rutan v. State, 2009 OK CR 3, ¶ 49, 202 P.3d 839, 849. Jurors decide what weight and credibility to give to conflicting evidence. Warner, 2006 OK CR 40, ¶ 40, 144 P.3d at 863. The State showed that, at about 5:00 p.m., N.E. was not ill. Approximately two hours later, she was limp and unresponsive; she lost and regained a heartbeat but never regained consciousness, and she had severe head injuries. The State's experts testified that she would have lost consciousness almost immediately after suffering such injuries. Day was the only person with N.E. during that time. Day was normally an attentive and affectionate father. However, evidence showed N.E. was a cranky baby, had been difficult to deal with before the formula problem was resolved, and Day sometimes grew frustrated with her.

¶ 14 We find in Proposition IV that there was no plain error when the trial court failed to sua sponte define “reasonable doubt” for the jury. A trial court should instruct jurors on the applicable law, including the elements of the offense and the law applying to that case's evidence. Soriano v. State, 2011 OK CR 9, ¶ 36, 248 P.3d 381, 396. Trial courts should use the uniform jury instructions if they state the applicable law. Harris v. State, 2007 OK CR 28, ¶ 6, 164 P.3d 1103, 1108. We will not grant relief for an error in instruction unless the error constitutes a miscarriage of justice or a substantial violation of a constitutional or statutory right. McIntosh v. State, 2010 OK CR 17, ¶ 10, 237 P.3d 800, 803; 20 O.S.2011, § 3001.1 Day did not request this instruction at trial and we review for plain error. Burgess v. State, 2010 OK CR 25, ¶ 21, 243 P.3d 461, 465. As Day admits, we have many times stated that the trial court shall not define reasonable doubt, and have refused to require such an instruction. See, e.g., Cuesta–Rodriguez v. State, 2010 OK CR 23, ¶ 62, 241 P.3d 214, 234;Harris v. State, 2004 OK CR 1, ¶ 51, 84 P.3d 731, 750–51, and cases cited therein. Day argues that, since this Court adopted a uniform standard of proof for direct and circumstantial cases, Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559, jurors must now be instructed on the meaning of reasonable doubt. The United States Supreme Court has held that a person may be convicted only upon sufficient evidence that shows “beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). That is, the facts essential to the crime—not the inferences necessary to determine those facts—must be proved beyond a reasonable doubt. Under our Uniform Criminal Jury Instructions, jurors are instructed that they must acquit unless the State's evidence establishes guilt beyond a reasonable doubt of each element of the crime. OUJI–CR 2d 10–4. If evidence is in equipoise then, as Day argues, it has not been proved beyond a reasonable doubt, and jurors must, under their instructions, acquit. Day argues that, although other jurisdictions instruct jurors on the meaning of “beyond a reasonable doubt”, Oklahoma does not. As Day admits, we have long held that “reasonable doubt” is “a simple expression that a juror of average intelligence will usually comprehend without defining.” Choate v. State, 19 Okl.Cr. 169, 197 P. 1060, 1064 (1921). Day relies on Holland v. U.S., 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). We discussed Holland in Easlick, concluding that no separate standard of proof for circumstantial evidence is necessary. Easlick, 2004 OK CR 21, ¶¶ 7–9, 90 P.3d at 558. Nothing in Holland implies or requires that a trial court must instruct on the meaning of reasonable doubt, as long as an appropriate instruction on the application of the reasonable doubt standard is given. Our uniform criminal jury instructions accurately state the applicable law, including the requirement that the facts supporting each element of the crime be proved beyond a reasonable doubt. Postelle v. State, 2011 OK CR 30, ¶ 38, 267 P.3d 114, 132. That is all that is necessary for due process.

¶ 15 We find in Proposition V that the trial court did not abuse its discretion in denying Day's Batson challenges. No matter the race or gender of a defendant, either party may contest the opposing party's use of peremptory challenges, if those challenges result in deliberate exclusion of potential jurors by gender or race, denying the parties a jury composed of a cross-section of the community and violating his right to equal protection. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992); J.E.B. v. Alabama, 511 U.S. 127, 131, 114 S.Ct. 1419, 1422, 128 L.Ed.2d 89 (1994); Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson and its progeny set forth a three-step process: (1) the defendant must make a prima facie showing that a prosecutor exercised a peremptory challenge on the basis of race; (2) the prosecutor must give a race-neutral reason for excusing the juror; and (3) the trial court determines whether the defendant carried his burden to prove purposeful discrimination ² Mitchell v. State, 2011 OK CR 26, ¶ 41, 270 P.3d 160, 173. If a prosecutor offers a race-neutral explanation for a peremptory challenge, the issue of whether the defendant initially made a prima facie showing of discrimination is moot. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (plurality). The race-neutral reason need not meet a challenge for cause—if the potential juror could be challenged for cause, there would be no need to use a peremptory challenge—but must be a clear and reasonably specific explanation of the prosecutor's legitimate reasons for exercising the challenge. Coddington v. State, 2006 OK CR 34, ¶ 11, 142 P.3d 437, 443. We give the trial court's findings great deference, and review the record in the light most favorable to the trial court's ruling. Mitchell, 2011 OK CR 26, ¶ 41, 270 P.3d at 173. As a trial court is in the best position to consider the demeanor and responses of both the panelist and the prosecutor, we review a Batson ruling for abuse of discretion. Grant v. State, 2009 OK CR 11, ¶ 26, 205 P.3d 1, 14.

2 Day claims that the requirement of a pattern of discrimination was “clarified” by rejection in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), because that case was based on a single discriminatory peremptory challenge. Day is mistaken. In Snyder the State struck five African–American jurors; on appeal, Snyder claimed error in two of those; and the opinion focused on one discriminatory strike. Snyder, 552 U.S. at 477–78, 128 S.Ct. at 1208.

¶ 16 Day claims the State removed three African–Americans and one Asian from the jury panel through peremptory challenges in violation of Batson. ³ Day raised a Batson challenge to each of the potential jurors the State sought to excuse. There was initially some confusion over whether Batson would apply to Day, and the trial court initially found Day had not shown a pattern of discrimination. Despite this, the State gave a race-neutral reason for excusing Ha—he was charged with a crime and his family and friends had significant criminal history. At the close of voir dire, the trial court asked the State to give race-neutral reasons for excusing the remaining jurors. This decision renders moot the issue of whether Day had shown a pattern of discrimination. Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866. The prosecutor excused Beaird because he prosecuted her son; Golson was excused because her son was recently prosecuted and imprisoned for robbery; Hammond's daughter was in medical school; in addition, the prosecutor felt there was a language and communication issue. Day was also required to give race-neutral reasons for his peremptory challenges against minority panelists. Past criminal history, either of a panelist or his relatives, is a race-neutral reason. Black v. State, 2001 OK CR 5, ¶ 32, 21 P.3d 1047, 1061–62;Short v. State, 1999 OK CR 15, ¶ 15, 980 P.2d 1081, 1092. The trial court was in the best position to judge both the parties' and the panelists' responses. We find no abuse of discretion. Grant, 2009 OK CR 11, ¶ 26, 205 P.3d at 14.

3 Day incorrectly lists the jurors excused as Beaird, Ha, Golson, and Miller. As the State notes, the prosecutor excused Beaird, Ha, Golson and Hammond. Day excused Miller, as well as Copeland and alternate juror Henry. Thus the State excused three African–Americans and one Asian, and Day excused three African–Americans.

¶ 17 We find in Proposition VI that there is no cumulative error. We found no error in the previous propositions. Where there is no error, no error will accumulate. Parker v. State, 2009 OK CR 23, ¶ 28, 216 P.3d 841, 849.

DECISION

¶ 18 The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED. Day's Motion To Supplement Direct Appeal Record and Request for an Evidentiary Hearing, tendered for filing October 11, 2012, is ordered to be FILED and is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision. LEWIS, P.J., LUMPKIN, C. JOHNSON, and A. JOHNSON, JJ.: concur.

LUMPKIN, Judge: CONCUR.

¶ 1 I concur in the Court's decision but write separately to address Proposition I. The validity of the evidence is always subject to attack. In the realm of scientific evidence, which is constantly subject to testing and peer review, challenges can be made which may require a Daubert/Kumho/ Taylor evidentiary hearing to show the accepted scientific principle is no longer valid. I agree with the Court in this case because a preliminary showing was not made that required the trial judge to inquire further. Just because something has been accepted in the past does not mean it continues to meet the Daubert criteria for admissibility into evidence.

¶ 2 Further, when a Rule 3.11 motion is properly submitted along with supporting affidavits, this Court reviews the application to see if it contains sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained—of evidence, and as a result requires an evidentiary hearing. Simpson v. State, 2010 OK CR 6, ¶ 53, 230 P.3d 888, 905–906. If we grant a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we do not make the adjudication that defense counsel actually was ineffective. We merely find that Appellant has shown a strong possibility that counsel was ineffective and should be afforded further opportunity to present evidence in the District Court in support of his claim before we consider the issue on the merits. Id. However, when we review and deny a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we necessarily make the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in Strickland. Id.