# Randolph v. State

> Court of Criminal Appeals of Oklahoma · February 4, 2010 · 231 P.3d 672

URL: https://www.frixlaw.com/law-library/cases/9796295

## Case

- **Full name:** Michael David RANDOLPH, Appellant v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** February 4, 2010
- **Citations:** 231 P.3d 672; 2010 OK CR 2; 2010 Okla. Crim. App. LEXIS 2; 2010 WL 455245
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Lewis, Johnson, Lumpkin, Chapel
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796295

## How later opinions describe it (automated extraction)

- finding right to confrontation waived by failure to exercise it when opportunity was available
- applying abuse of discretion standard in manifest necessity case

## Opinion text

LUMPKIN, Judge,
specially concur.
€ 1 I concur in the Court's analysis and the affirming of the judgment and sentence. The supplemental briefing in this case points to a distinction that needs to be made between constitutional rights and statutory procedures. In this day and age, some would make every issue a constitutional issue, however, that is not always the case. In the recent case of Melendes-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009), the United States Supreme Court discussed a defendant's right, under the Sixth Amendment to the United States Constitution, to confront the witnesses against him/her at trial. Both the U.S. Supreme Court and this Court have held that this right of confrontation is a trial right. Howell v. State, 1994 OK CR 62, ¶ 18 , 882 P.2d 1086, 1091 , citing Barber v. Page, 390 U.S. 719, 725 , 88 S.Ct. 1318, 1322 , 20 L.Ed.2d 255 (1968). Judge Lewis appropriately points out this fact and this Court's analysis of the issue in State v. Tinkler, 1991 OK CR 73, ¶ 10 , 815 P.2d 190, 192 . In this case, Appellant was afforded that right at his trial, when Paul Schroeder, forensic chemist with *684 the Tulsa Police Department, was called and testified. Defense counsel thoroughly eross-examined the chemist at trial.
{ 2 It is interesting that in Melendes-Diaz, Justice Scalia, writing for the Court, sought to downplay the impact of requiring live confrontation at trial by noting: .
Many States have already adopted the constitutional rule we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution's intent to use a forensic analyst's report. Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst's appearance at trial.
129 S.Ct. at 2540-2541 (internal citations and footnotes omitted).
T3 Thus, at least implicitly, the U.S. Supreme Court confirmed that the type of notice/demand procedure set out in 22 0.S.Supp.2004, § T751(A)(8) meets constitutional muster, even in a trial setting. In discussing the burden shifting argument made by the dissent, the Supreme Court made its holding explicit:
First, the dissent believes that those state statutes "requiring the defendant to give early notice of his intent to confront the analyst," are "burden-shifting statutes [that] may be invalidated by the Court's reasoning." That is not so. In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial. Contrary to the dissent's perception, these statutes shift no burden whatever.
129 S.Ct. at 2541 (internal citations omitted).
T4 The proposition of error in this case does not allege a violation at trial, but at preliminary hearing, a stage of the criminal proceeding at which the federal right of confrontation under the Sixth Amendment is more limited. See Barber v. Page, supra; State v. Tinkler, supra. Therefore, this Court must only determine if there was statutory compliance in this case. It appears from the record that notice was given prior to preliminary hearing and the defense merely objected, without an attempt to call the chemist to testify. Because the defense did not call the chemist or attempt to examine the witness, much of the argument raised by the dissent in this case is not ripe for decision by this Court. We cannot rule based merely on the speculation of how the statute might have been interpreted if it had been invoked. As a result of my review of Melendez-Diaz, I find no error and join with the Court in affirming the judgment and sentence in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796295. Public record. Not legal advice.