Michael David Randloph

¶1 Michael David Randolph, Appellant, was tried by jury and found guilty in the District Court of Tulsa County, Case No. CF-2007-1661, of Count 1, trafficking in illegal drugs, after former conviction of two (2) or more felonies, in violation of 63 O.S.Supp.2004, § 2-415; Count 2, possession of marijuana, second offense, after former conviction of one (1) or more felonies, in violation of 63 O.S.Supp.2004, § 2-402; and Count 3, failure to obtain a drug tax stamp, after former conviction of two (2) or more felonies, in violation of 68 O.S.2001, § 450.3. The jury sentenced Appellant to life without parole and a $25,000 fine on Count 1, two (2) years imprisonment and a $1,000 fine on Count 2, and four (4) years imprisonment and a $1,000 fine on Count 3. The Honorable Jesse S. Harris, District Judge, pronounced judgment and sentence in accordance with the jury’s verdict and ordered that the sentences on Counts 1 and 2 be served concurrently, but consecutively to Count 3. Mr. Randolph appeals.

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¶24 In Proposition Four, Appellant argues the admission at preliminary examination of a report of laboratory analysis over his objection violated his right to confront his accusers. The report itself does not appear in the original record or transcript of evidence on appeal, but Appellant states in his brief that “information in the report established both that the evidence seized was cocaine base and that it weighed over eight grams.” Relying largely on developments in the law of confrontation in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and subsequent Supreme Court case law, Appellant argues the admission of this report without the testimony of its maker violated his right to confront his accusers.

¶25 Appellant’s argument is fraught with conceptual problems, but relief is unnecessary for the more basic reason that he waived the right to confront at preliminary examination the witness who prepared the report. Under 22 O.S.Supp.2004, § 751, a “laboratory report from a forensic laboratory operated by this state or any political subdivision thereof,” which has been “made available to the accused by the office of the district attorney at least five (5) days prior to the hearing,” shall be received “as evidence of the facts and findings stated, if relevant and otherwise admissible in evidence.” § 751(A)(3), (A)(5). When such a report is deemed relevant “by the state or the accused, the court shall admit the report without the testimony of the person making the report, unless the court, pursuant to subsection C of this section, orders the person making the report to appear.” § 751(A)(5). Section 751(C) further provides that the court, “upon motion of the state or the accused, shall order the attendance of any person preparing a report submitted as evidence in any hearing prior to trial or forfeiture hearing, when it appears there is a substantial likelihood that material evidence not contained in such report may be produced by the testimony of the person having prepared the report” (emphasis added).

¶26 When the State tendered the laboratory report identifying the type and amount of controlled dangerous substances as evidence just before the conclusion of the preliminary hearing, Appellant objected. Defense counsel argued:

[A]lthough Oklahoma Statutes permit a hearsay exception for the lab results and Medical Examiner’s reports, a state hearsay exception cannot trump a constitutional guarantee. It’s also clear from case law that [the] right of confrontation applies in preliminary hearings, and I ask the Court to honor that right in this case.

The district court overruled the objection and admitted the document in evidence, relying largely on State v. Tinkler, 1991 OK CR 73, 815 P.2d 190, overruled on other grounds, State v. Johnson, 1992 OK CR 72, 877 P.2d 1136.2

¶27 The preliminary examination provided by Article II, section 17 of the Oklahoma Constitution is “a personal privilege for benefit of accused, which may be waived by him.” Ex parte Pruitt, 1949 OK CR 66, 89 Okla. Crim. 312, 207 P.2d 337, 339. While the law confers a limited right to confront adverse witnesses at preliminary examination, that right is also subject to waiver. Beaird v. Ramey, 1969 OK CR 195, ¶ 7, 456 P.2d 587, 589; LaFortune v. District Court, 1998 OK CR 65, ¶ 11, 972 P.2d 868, 872 (“At the preliminary hearing, a defendant must not be denied his Constitutional right to be confronted with his accusers”); Miles v. State, 1954 OK CR 33, ¶ 15, 268 P.2d 290, 298 (defendant in a criminal action may be held to waiver of the right to confrontation by conduct inconsistent with a purpose to exercise it), citing 23 C.J.S. Criminal Law § 1009, p. 377, n. 97.

Affirmed