Randolph v. State

CHAPEL, Judge,

dissenting.

T 1 I dissent based on the majority's resolution of Propositions I and IV. In Proposition I, the majority opinion correctly acknowledges that in cases dating back to Statehood, this Court has consistently held that when a eriminal jury trial has been properly commenced, a mid-trial mistrial cannot be granted without the defendant's consent, except in cases of "manifest necessity." 1 The United States Supreme Court and this Court have repeatedly recognized that the Constitutional protection against "Double Jeopardy" includes the right not be "twice put in jeopardy" for the same offense, whether or not the original trial results in an actual verdict. 2 The opinion also correctly con *685 cludes that the resolution of Randolph's Proposition I double jeopardy claim depends entirely on whether the district court's declaration of a mistrial in the original trial, and over Randolph's objection, was authorized by "manifest necessity."

12 The majority notes that the "common thread" uniting this Court's cases finding that a particular defendant could not be retried is the fact that the mistrial declaration resulted from the district court's "mistaken conclusion that a mistrial was required under prevailing law" (emphasis in original). Nevertheless, the majority somehow then rejects Randolph's Proposition I elaim without finding either that the mistrial declaration in this case was justified by manifest necessity or that the district court correctly concluded that a mistrial was required-which it certainly was not. 3 The district court was quite candid that it was declaring a mistrial, on its own motion and over defense objection, in order to avoid "wasting the Court's time and court resources," as well as those of the parties, by completing a trial that the court (inexplicably) felt was basically "doomed" to reversal on appeal. Neither the district court nor today's majority opinion explicitly acknowledges the right of a defendant to a decision by the jury originally empanelled to hear his or her case. 4 Even if the district court had all the best intentions and was sincerely attempting to preserve the defendant's right to a fair trial, this does not mean that the defendant can be retried when that court abuses its discretion by unnecessarily declaring a mistrial, over the objection of the defendant. 5

T8 In Sussman v. District Court of Oklahoma County, 6 this Court found that "manifest necessity" in this context "must be forceful and compelling and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care. 7 And just as "serupulous adherence to [ levidentiary rules" is called for in "trials involving grave mandatory penalties," so is scrupulous protection of fundamental constitutional rights, such as the protection against Double Jeopardy. 8 There is nothing new or subtle about the double jeopardy principles that should have prevented the district court from so eagerly granting a mistrial in this case, and that should compel this Court to reverse defendant's convictions and find that *686 he cannot be re-tried 9 This Court should conclude, as we did in Sussman: "[TJhere is a right way and a wrong way to do things. In this case, the wrong procedure was followed, and it is the opinion of this Court that jeopardy has applied. 10 Hence Randolph should prevail on his Proposition I claim.

{4 In addition, I cannot agree with the majority's resolution of Proposition IV. In Proposition IV, Randolph argues that the preliminary hearing magistrate erred in admitting a laboratory analysis report, over his objection, without requiring testimony from the analyst who prepared the report. Randolph claims this violated his Sixth Amendment right to confrontation. The majority states that this argument is "fraught with conceptual problems." On the contrary, I find Randolph's argument clear, easy to understand, and supported by recent United States Supreme Court case law.

T5 A defendant has the right to confront witnesses who bear testimony against him at every critical stage of trial. 11 This Court has held that preliminary hearing is a critical stage of trial. 12 If there were any doubt about a defendant's right to confrontation at preliminary hearing, it is put to rest by the Oklahoma statute governing preliminary hearings and Oklahoma case law, both of which grant defendants a right of confrontation at preliminary hearing. 13

T6 Recently, in Melendez-Diaz v. Massachusetts, the United States Supreme Court held that the right to confrontation applies to documents, as well as witnesses, at all critical stages of trial. 14 The core class of testimonial evidence includes "ex parte in-court testimony or its functional equivalent" such as affidavits and other written material. 15 The key is whether the written material consists of sworn declarations or affirmations made for the purpose of proving a fact. 16 Melendez-Diaz concerned convictions for cocaine trafficking and distribution. Proof that the substance possessed by defendants was cocaine was provided by sworn "certificates of analysis" containing the laboratory reports of a state forensic laboratory, in accordance with Massachusetts law. The Supreme Court found that these certificates were not only made under cireumstances which would lead an objective observer to conclude they might *687 be used later at a trial, but that under Massachusetts law the affidavits' sole purpose was to provide prima facie evidence of the substance's composition, quality arnd weight. 17 The Court concluded that the analysts who prepared these reports were witnesses against Melendez-Diaz, through the reports' contents. The Court noted that the Confrontation Clause guarantees a defendant the right to confront witnesses against him, and the Compulsory Process Clause guarantees a defendant the right to call witnesses in his favor. The Court commented, "[There is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. 18

T7 The important point here is that a defendant must be allowed to cross-examine the preparer of a report about the information which is included in the report-that is, the information which the State seeks to introduce as evidence against him. This is what, following Oklahoma's current statute, 22 0.8. § 751, Randolph was not allowed to do. Randolph raises nothing less than the question of whether our current statute remains constitutional in light of Melendes-Diaz. I conclude that it does not.

18 In order to avoid the clear requirements of Melendes-Diaz, the majority concludes that there is no right to confrontation at preliminary hearing. The majority first argues that the right to confrontation at preliminary hearing may be limited by statute. Certainly, the legislature may limit presentation of witnesses at a preliminary hearing to those necessary to sustain the State's low burden during those proceedings by allowing the trial court to cut off witnesses after the State's burden is met. 19 However, the statute allowing this procedure explicitly grants a right to confrontation against the State's witnesses. 20 Although there is a difference between the right to present witnesses and the right to confront them, the majority does not recognize that difference. By the majority's reasoning, a preliminary hearing magistrate could hear the State's evidence, refuse to allow any defense cross-examination of witnesses, and bind the defendant over on the charged offense.

T 9 The majority relies heavily on State v. Tinkler, 21 in which we first upheld $ 751, and the cases cited therein. Tinkler notes that a preliminary hearing differs from a trial, and the scope of rights available to a defendant may differ as well. 22 However, Tinkler does not hold that there is no right to confrontation at preliminary hearing. Tinkler upheld the statute as a legislatively created exception to the hearsay rule, based on economic concerns. 23 In my opinion, the Supreme Court's decision in Melendez-Diag super-cedes our opinion in Tinkler. Put simply, Tinkler and § T51 were good law before Melendesz-Diag. Now they are not.

10 The majority and Tinkler quote from a Supreme Court case, Barber v. Page, discussing the difference between preliminary hearing and trial and noting that the right of confrontation is "basically a trial right". 24 Even a cursory reading of Barber shows its underlying assumption that a right to confrontation at preliminary hearing exists. In Barber the State wanted to use a preliminary hearing transcript in lieu of calling a witness at trial, without showing the witness was unavailable; defense counsel had not cross-examined the witness at the preliminary hearing. The Barber Court found that whether or not the defendant had cross-examined at preliminary hearing, on the facts of this case such a cross-examination would not have been sufficient to preserve the defendant's right to confrontation at trial. The Barber Court stated, "While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of *688 the confrontation clause where the witness is shown to be actually unavailable. ... 25 If there is no right to confrontation at preliminary hearing, this makes no sense.

€ 11 I understand that the majority wishes to uphold the statute at issue, which deprives both the State and the defendant of the right to question an expert who prepared a laboratory report. However, that is not what the opinion says. By concluding the defendant has no right to confrontation at preliminary hearing, the majority suggests a defendant may be prevented from questioning witnesses who actually testify for the State. That is, after all, what the right of confrontation consists of-the ability to question witnesses who testify against you. I cannot conceive of any cireumstances under which such a conclusion would be either constitutional or fair.

{12 The majority thus first determines that Melendezs-Diag does not control in this case because there is no right to confrontation at preliminary hearing in this case. However, inexplicably, the majority goes on to claim that an Oklahoma statute governing (among other things) state forensic and OSBI laboratory reports preserves the right to confrontation at preliminary hearing, and that Randolph waived his right under that statute. The majority's analysis of that statute is doubly flawed. It misrepresents the statutory provisions regarding waiver of witnesses, and assumes that the statute preserves the right to confrontation at issue here.

{ 18 Preservation of the right to confrontation, of course, is the erucial constitutional issue. The statute, 22 O.S. § 751, allows introduction of certified laboratory or forensic reports at any pretrial hearing without a sponsoring witness. Section T51(A) provides that such certified reports from the OSBI, Oklahoma Bureau of Narcotics and Dangerous Drugs, Department of Safety, Medical Examiner, or state forensic laboratories, shall be admitted if the State has given five days notice to the defendant; if that condition is not met the trial court may grant a continuance sufficient to provide the defense five days to prepare after the report is furnished. 26 On its face, this statute allows a laboratory report to be introduced at preliminary hearing without calling the person who prepared the report to the witness stand. The notice requirement does not give a defendant the right to call and confront the preparing witness, but gives the defendant the equivalent of five days to prepare for the report's introduction without a sponsoring witness. One consequence of this is that the defendant cannot cross-examine the person who prepared the report about the material contained in the report. That is, the defendant cannot cross-examine a witness about the evidence being introduced against him. This is precisely what Melendes-Diaz prohibits.

{14 After Melendez-Diaz, Section T51 can only be found constitutional if it makes provision for protection of the right to confrontation. Currently it does not. The majority relies on Section T751(C). This subsection does not, as the majority would have it, preserve the right to confrontation at issue here. In fact, this subsection explicitly provides that the defendant shall not have the right to confront a preparing witness about the contents of the report. Instead, this subsection provides that a defendant may follow specific procedures to ask that a preparing witness be called "when it appears there is a substantial likelihood that material evidence mot contained in such report may be produced by the testimony of the person having prepared the report." 27 That is, a defendant may ask the trial court, in writing, to call a witness if he believes the witness may be able to testify to something not contained in the witness's written report. This does not preserve the defendant's right to confront the witness about the contents of the report which are admitted against him.

15 In fact, Section T51(C)(1) has nothing to do with the right of confrontation. At the most it tracks the Compulsory Process *689 Clause and allows the defendant an opportunity to request the appearance of a witness who might have some evidence relevant to something other than the report which that witness prepared to be used as evidence against the defendant. In Melendez-Diaz the Supreme Court held that a defendant's right under the Compulsory Process Clause to call analysts was not a substitute for the State's duty to make them available under the Confrontation Clause. The defendant's right to subpoena a witness does not fulfill the right to confrontation, because a subpoenaed witness may fail to appear. "Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court." 28

16 Finally, the majority opinion relies on Section T51(C) to find that, because Randolph failed to follow the written procedures outlined therein, he waived any right to confront the sponsoring laboratory witness at preliminary hearing. Given the actual language of the statute this simply makes no sense. At the most, Randolph waived the right to ask the preparing witness about matters which may have had relevance to the proceedings but were not contained within the report. Section 751(C) provides no right to confront the preparing witness about the material actually introduced in the report to prove an element of the crime, and failure to follow its procedures cannot result in waiver of that right.

117 A defendant, of course, may waive a preliminary hearing entirely. He may choose not to cross-examine witnesses at the preliminary hearing, effectively waiving the right to confrontation. However, a defendant may not be prevented from exercising the right to confrontation. That is what Section 751 does. The majority suggests that, because the defendant did not timely ask in writing that a witness be called to testify to material other than that in the report admitted against him, he waived his constitutional right to confront the witness who prepared that report about the information it contained. There is no basis in the statutory language or the law for this conclusion.

18 The trial court allowed the State to admit a laboratory report against Randolph without affording him an opportunity to cross-examine its preparer. Insofar as Seetion 751 allows introduction of a laboratory report without an opportunity for eross-ex-amination, it violates the Sixth Amendment right to confrontation. That report was introduced to show the quantity of drugs necessary to bind Randolph over on the trafficking charge. Randolph should have had the chance to confront the witnesses who prepared that evidence. I understand the Legislature's desire to simplify pretrial process by allowing admission of laboratory results without any sponsoring witness. However, I agree with the United States Supreme Court that, "We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available." 29 I dissent.

. The majority cites United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824), for its description of the "manifest necessity" standard, which notes that district courts will have to exercise "sound discretion" in making this determination. It should likewise be noted that the holding of Perez was simply that a hung jury could qualify as a manifest necessity, such that a defendant could be re-tried after his original jury was unable to reach a verdict. Id. at 579-80.

. See U.S. Const. amend. V ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"); Okla. Const. art. 2, § 20 ("Nor shall any person be twice put in jeopardy of life or limb for the same offense."); Perez, 22 U.S. 579 ; Loyd v. State, 1911 OK CR *685 255 , 6 Okla.Crim. 76, 80-81 , 116 P. 959, 961 (finding that "put in jeopardy" language of Oklahoma Constitution mandates conclusion that defendant is protected against second prosecution (absent consent or necessity in discharge of first jury), regardless of whether first trial resulted in verdict).

. No one familiar with this Court's jurisprudence can seriously conclude that the testimony upon which the district court based its mistrial declaration would have had ary substantial likelihood of resulting in a reversal by this Court, particularly since the defendant twice declined the trial court's offer of a mistrial. The district court's legal conclusion in this regard is entirely unreasonable, even granting that predicting results on appeal is often not "a clear cut matter."

. If a district court is truly convinced that a case is doomed to reversal on appeal, the proper procedure is to allow the jury to reach a verdict; and if that verdict results in any convictions, then grant a defense motion for a new trial. This approach both preserves the defendant's right to the verdict of the jury empanelled to hear his case and can avoid the "waste" of time and resources that would have been spent on the avoided appeal.

. The sarcasm and cynicism of the majority opinion regarding this claim seem entirely misplaced. In the original trial defense counsel made basic objections to specific police testimony. Counsel never asked for and twice rejected the court's offer of a mistrial. There is nothing surprising or unusual about these circumstances; hence there is nothing surprising or ironic about the defendant's resultant Proposition I claim on appeal.

. 1969 OK CR 185 , 455 P.2d 724 (per curiam).

. Id. at ¶ 40, 455 P.2d at 730 (emphasis in original).

. It should be noted that this Court has faithfully applied the Double Jeopardy principles discussed herein even in cases involving the most serious of crimes, ie., even when the result was that a murder defendant could not be re-prosecuted. See, e.g., McClendon v. State, 1988 OK CR 186 , 761 P.2d 895, 895-96 (finding double jeopardy prevented any retrial of murder defendant, after trial court dismissed original jury, over defense objection, based merely on juror's statement that he recognized a spectator in courtroom, who he thought might be the defendant's sister).

. In Goodman v. State, 1929 OK CR 23 , 41 Okla.Crim. 405, 413 , 273 P. 900, 902 , the defendant claimed "that the action of the court in discharging the jury over his objection was such an abuse of judicial discretion as to amount to an acquittal." Even at that time this Court commented that "the question argued and urged by the defendant is not a new question in this state" and noted that the Supreme Court of Oklahoma Territory (in 1903) recited and applied the following rule:

''The general rule is that the prisoner has been put in jeopardy when he has been put upon trial before a court of competent jurisdiction, upon an indictment or information sufficient to sustain a conviction, and the jury has been empanelled and sworn to try the case, and the jury is discharged without sufficient cause, and without the defendant's consent; and such discharge of the jury, although improper, results in an acquittal of the defendant."

Id. at 415, 273 P. at 903 (quoting Schrieber v. Clapp, 1903 OK 96, ¶ 6 , 13 Okla. 215 , 74 P. 316, 317 ).

. 1969 OK CR 185, ¶¶ 56-57 , 455 P.2d at 735 .

. Crawford v. Washington, 541 U.S. 36, 68 , 124 S.Ct. 1354, 1374 , 158 L.Ed.2d 177 (2004).

. Norton v. State, 2002 OK CR 10 , 43 P.3d 404, 408 .

. 22 0.S.Supp.2003, § 258; See, e.g., Thompson v. State, 2007 OK CR 38 , 169 P.3d 1198, 1206-07 . I note also the distinction between a preliminary hearing and a grand jury. By statute, defendants have the right to confront witnesses at a preliminary hearing. There is no right to confrontation in grand jury proceedings. However, every Oklahoma defendant who is indicted by a grand jury has a right to a subsequent preliminary hearing, where he is granted the right to confront witnesses. 22 0.$.2001, § 524; Stone v. Hope, 1971 OK CR 302 , 488 P.2d 616, 618 . Shortly after statehood, this Court held that the state statutes and Constitution abolished the previous grand jury system and established indictment or information as concurrent methods of prosecution. In re McNaught, 1 Okla. Crim. 528 , 99 P. 241, 252 (1909). The Court emphasized the protections afforded citizens at preliminary hearing, including the right of confrontation.

. Melendez-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527, 2531-32 , 174 L.Ed.2d 314 (2009).

. Melendez-Diaz, 129 S.Ct. at 2531-32 .

. Melendez-Diaz, 129 S.Ct. at 2532 .

. Id.

. Melendez-Diaz, 129 S.Ct. at 2534 .

. LaFortune v. District Court, 1998 OK CR 65 , 972 P.2d 868, 871 ; 22 O.S.Supp.2003, § 258.

. 22 0.SS.Supp.2003, § 258.

. 1991 OK CR 73 , 815 P.2d 190 .

. Tinkler, 815 P.2d at 192 .

. Tinkler, 815 P.2d at 192-93 .

. 390 U.S. 719, 725 , 88 S.Ct. 1318, 1322 , 20 L.Ed.2d 255 (1968).

. Barber, 390 U.S. at 725-26 , 88 S.Ct. at 1322 .

. 22 O.S.Supp.2004, § 751(A). Section 751 was amended by the Legislature, effective November 1, 2009. The amendment does not substantively change the subsections discussed here.

. 22 0.$.2009, § 751(C)(1) (emphasis added).

. Melendez-Diaz, 129 S.Ct. at 2540 .

. Melendez-Diaz, 129 S.Ct. at 2536 .