Michael David Randolph v. State of Oklahoma

Tulsa, Oklahoma criminal defense lawyers represented the Defendant charged with 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.

Reported by: Kent Morlan

¶2 In March, 2007, Tulsa police officers Ludwig and Beaty received information that someone was dealing drugs to a pregnant black female at a particular apartment in Tulsa. In response to that information, the officers initiated an investigation of an apartment on East Fifth Place. They arrived at the residence around 6:00 p.m. on March 22, 2007. The officers knocked on the apartment door. A man later identified as Robert Benson answered. The officers, who were dressed in police uniforms, told Benson the reason for their visit and asked if they could enter the apartment. Benson stepped to the side and told them to “Come on in.”

¶3 Upon entering the living room, both officers saw Appellant standing in a doorway to a bedroom down the hallway of the apartment. When Appellant saw the officers, he turned and walked quickly out of sight. The officers became suspicious and followed him. As Officer Ludwig entered the room, he saw Appellant standing partially turned to his left and facing away from the door, cupping a clear plastic baggie containing a leafy green substance in his left hand. Officer Ludwig also saw a pregnant black female in the room, dressed in a towel and just out of the shower. Officer Ludwig seized the baggie, handed it to Officer Beaty, and arrested Appellant for possession of marijuana. As he was being handcuffed, Appellant complained to the officers that he “just wanted to roll a blunt.”

¶4 The officers removed Appellant from the bedroom and searched his clothing, finding $77 in his pocket. Officer Ludwig testified that he requested consent to search the apartment from Robert Benson. Officer Beaty filled out the search warrant waiver and consent form, which Officer Ludwig explained and presented to Benson. Benson executed the form. As a witness for the Appellant at trial, Robert Benson gave a conflicting account of these events. He testified that the officers asked him some questions when he opened the door, but did not ask if they could come inside. Benson stated that while the officers were still outside, he asked if they had a search warrant. The officers then pushed open the door, handcuffed him and the female in the apartment, and then went into the back bedroom where Appellant was. Benson also said that he only signed the search waiver because the officers threatened he would go to jail if he didn’t.

¶5 After arresting the Appellant, Officers Ludwig and Beaty transported him to Tulsa’s Uniform Division North station. At the station, Appellant expressed interest in becoming a confidential informant. During this discussion, Appellant also asked to go to the restroom. As both officers escorted Appellant down the hall, they noticed him walking with a pronounced limp. Appellant had walked with a limp from the patrol car into the police station, but had not done so earlier at the apartment.

¶6 Appellant’s handcuffs were removed in the restroom. As Appellant walked to the urinal, the officers saw a small plastic baggie fall from the bottom of his left shorts leg. Appellant quickly picked it up and began to shove it into his pocket. Officer Ludwig immediately re-handcuffed him and retrieved a clear baggie containing what proved to be cocaine base. There was no tax stamp on the item. A Tulsa Police Department forensic scientist testified that the cocaine base weighed approximately 8.52 grams, a trafficking quantity of crack cocaine.

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In State v. Tinkler, this Court reversed a district court’s ruling that 22 O.S.Supp.1988, § 751, allowing the admission of a hearsay report at preliminary hearing, violated a defendant’s right to confrontation. Tinkler was decided under an early version of section 751. The Court found that by enacting section 751, the Legislature “created a narrow, limited exception to the hearsay rule, applicable only in the case of a preliminary examination . . . [and] that the ability to confront the actual witness is eliminated by the establishment of the rule.” Tinkler, ¶ 11, 815 P.2d at 192 (emphasis added). As detailed in the opinion above, language in the current version of section 751(C) provides a procedure for exercising a right of confrontation not contained in the text considered by the Court in Tinkler.

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22 O.S. 258

A. The witnesses must be examined in the presence of the defendant, and may be cross-examined by the defendant. On the request of the district attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, and may be used as provided in Section 333 of this title. In no case shall the county be liable for the expense in reducing such testimony to writing, unless ordered by the judge of a court of record.

B. The district attorney may, on approval of the county judge or the district judge, issue subpoenas in felony cases and call witnesses before the district attorney and have them sworn and their testimony reduced to writing and signed by the witnesses at the cost of the county. Such examination must be confined to some felony committed against the statutes of the state and triable in that county, and the evidence so taken shall not be receivable in any civil proceeding. A refusal to obey such subpoena or to be sworn or to testify may be punished as a contempt on complaint and showing to the county court, or district court, or the judges thereof that proper cause exists therefor.

C. No preliminary information shall be filed without the consent or endorsement of the district attorney, unless the defendant be taken in the commission of a felony, or the offense be of such character that the accused is liable to escape before the district attorney can be consulted. If the defendant is discharged and the information is filed without authority from or endorsement of the district attorney, the costs must be taxed to the prosecuting witness, and the county shall not be liable therefor.

D. The convening and session of a grand jury does not dispense with the right of the district attorney to file complaints and information, conduct preliminary hearings and other routine matters, unless otherwise specifically ordered, by a written order of the court convening the grand jury; made on the court's own motion, or at the request of the grand jury.

E. There shall be no preliminary examinations in misdemeanor cases.

F. A preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of: (1) whether the crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime. Once a showing of probable cause is made the magistrate shall terminate the preliminary hearing and enter a bindover order; provided, however, that the preliminary hearing shall be terminated only if the state made available for inspection law enforcement reports within the prosecuting attorney's knowledge or possession at the time to the defendant five (5) working days prior to the date of the preliminary hearing. The district attorney shall determine whether or not to make law enforcement reports available prior to the preliminary hearing. If reports are made available, the district attorney shall be required to provide those law enforcement reports that the district attorney knows to exist at the time of providing the reports, but this does not include any physical evidence which may exist in the case. This provision does not require the district attorney to provide copies for the defendant, but only to make them available for inspection by defense counsel. In the alternative, upon agreement of the state and the defendant, the court may terminate the preliminary hearing once a showing of probable cause is made.

G. 1. Upon request of the defense, the state shall disclose the following not less than thirty (30) days prior to the preliminary hearing:

a. initial and supplemental reports in the possession of the district attorney,

b. summaries of any interviews that are intended to be introduced at preliminary hearing which have not been provided or summarized in reports provided to the defense,

c. summaries of any videos that are intended to be introduced at preliminary hearing which have not been provided or summarized in reports provided to the defense,

d. summaries of victim interviews which have not been provided or summarized in reports provided to the defense,

e. video or audio recordings intended to be introduced at preliminary hearing of any statements made by an adult victim, adult witness, or the defendant,

f. photographs intended to be introduced at preliminary hearing,

g. photographic lineups intended to be introduced at preliminary hearing,

h. deoxyribonucleic acid (DNA) reports intended to be introduced at preliminary hearing, and

i. 9-1-1 calls intended to be introduced at preliminary hearing.

2. Nothing in this subsection shall be construed to require the disclosure of a recording of a statement of a minor.

3. Notwithstanding the thirty-day disclosure requirement provided for in this subsection, if the preliminary hearing is set in close proximity to the request date, the court may set a reasonable time for disclosure under the provisions of this subsection.

H. A preliminary magistrate shall accept into evidence as proof of prior convictions a noncertified copy of a Judgment and Sentence when the copy appears to the preliminary magistrate to be patently accurate. The district attorney shall make a noncertified copy of the Judgment and Sentence available to the defendant no fewer than five (5) days prior to the hearing. If such copy is not made available five (5) days prior to the hearing, the court shall continue the portion of the hearing to which the copy is relevant for such time as the defendant requests, not to exceed five (5) days subsequent to the receipt of the copy.

I. The purpose of the preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime.

J. The preliminary hearing must be set within nine (9) months from the initial appearance of the defendant. If commencement of the preliminary hearing is delayed past the nine-month time limit, a show cause hearing shall be scheduled by the court to show reason for the delay. If the court fails to find good cause for the delay, the court shall schedule a preliminary hearing as soon as practicable.


A. The witnesses must be examined in the presence of the defendant, and may be cross-examined by the defendant. On the request of the district attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, and may be used as provided in Section 333 of this title. In no case shall the county be liable for the expense in reducing such testimony to writing, unless ordered by the judge of a court of record.

B. The district attorney may, on approval of the county judge or the district judge, issue subpoenas in felony cases and call witnesses before the district attorney and have them sworn and their testimony reduced to writing and signed by the witnesses at the cost of the county. Such examination must be confined to some felony committed against the statutes of the state and triable in that county, and the evidence so taken shall not be receivable in any civil proceeding. A refusal to obey such subpoena or to be sworn or to testify may be punished as a contempt on complaint and showing to the county court, or district court, or the judges thereof that proper cause exists therefor.

C. No preliminary information shall be filed without the consent or endorsement of the district attorney, unless the defendant be taken in the commission of a felony, or the offense be of such character that the accused is liable to escape before the district attorney can be consulted. If the defendant is discharged and the information is filed without authority from or endorsement of the district attorney, the costs must be taxed to the prosecuting witness, and the county shall not be liable therefor.

D. The convening and session of a grand jury does not dispense with the right of the district attorney to file complaints and information, conduct preliminary hearings and other routine matters, unless otherwise specifically ordered, by a written order of the court convening the grand jury; made on the court's own motion, or at the request of the grand jury.

E. There shall be no preliminary examinations in misdemeanor cases.

F. A preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of: (1) whether the crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime. Once a showing of probable cause is made the magistrate shall terminate the preliminary hearing and enter a bindover order; provided, however, that the preliminary hearing shall be terminated only if the state made available for inspection law enforcement reports within the prosecuting attorney's knowledge or possession at the time to the defendant five (5) working days prior to the date of the preliminary hearing. The district attorney shall determine whether or not to make law enforcement reports available prior to the preliminary hearing. If reports are made available, the district attorney shall be required to provide those law enforcement reports that the district attorney knows to exist at the time of providing the reports, but this does not include any physical evidence which may exist in the case. This provision does not require the district attorney to provide copies for the defendant, but only to make them available for inspection by defense counsel. In the alternative, upon agreement of the state and the defendant, the court may terminate the preliminary hearing once a showing of probable cause is made.

G. 1. Upon request of the defense, the state shall disclose the following not less than thirty (30) days prior to the preliminary hearing:

a. initial and supplemental reports in the possession of the district attorney,

b. summaries of any interviews that are intended to be introduced at preliminary hearing which have not been provided or summarized in reports provided to the defense,

c. summaries of any videos that are intended to be introduced at preliminary hearing which have not been provided or summarized in reports provided to the defense,

d. summaries of victim interviews which have not been provided or summarized in reports provided to the defense,

e. video or audio recordings intended to be introduced at preliminary hearing of any statements made by an adult victim, adult witness, or the defendant,

f. photographs intended to be introduced at preliminary hearing,

g. photographic lineups intended to be introduced at preliminary hearing,

h. deoxyribonucleic acid (DNA) reports intended to be introduced at preliminary hearing, and

i. 9-1-1 calls intended to be introduced at preliminary hearing.

2. Nothing in this subsection shall be construed to require the disclosure of a recording of a statement of a minor.

3. Notwithstanding the thirty-day disclosure requirement provided for in this subsection, if the preliminary hearing is set in close proximity to the request date, the court may set a reasonable time for disclosure under the provisions of this subsection.

H. A preliminary magistrate shall accept into evidence as proof of prior convictions a noncertified copy of a Judgment and Sentence when the copy appears to the preliminary magistrate to be patently accurate. The district attorney shall make a noncertified copy of the Judgment and Sentence available to the defendant no fewer than five (5) days prior to the hearing. If such copy is not made available five (5) days prior to the hearing, the court shall continue the portion of the hearing to which the copy is relevant for such time as the defendant requests, not to exceed five (5) days subsequent to the receipt of the copy.

I. The purpose of the preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime.

J. The preliminary hearing must be set within nine (9) months from the initial appearance of the defendant. If commencement of the preliminary hearing is delayed past the nine-month time limit, a show cause hearing shall be scheduled by the court to show reason for the delay. If the court fails to find good cause for the delay, the court shall schedule a preliminary hearing as soon as practicable.

The jury sentenced Defendant 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.

Affirmed on appeal.