OPINION
LEWIS, Judge.
T1 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 0.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 0.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 00.98.2001, § 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.
FACTS
T2 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."
T3 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."
T4 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 [675]*675Appellant 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.
15 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.
T 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.
ANALYSIS
T7 In his first proposition of error, Appellant claims the trial of this case was barred by former jeopardy, violating his rights under Article II, section 21 of the Oklahoma Constitution and the Fifth Amendment to the United States Constitution. Appellant did not plead in the court below that he was formerly convicted or acquitted of these crimes by the verdict of a jury. 22 0.8.2001, §§ 14, 518. He rests this claim on the fact that the district court declared a mistrial over his objection and discharged a previous jury sworn to try the case. When Appellant was brought before the district court for re-trial, he moved to dismiss the charges on grounds of former jeopardy. The district court denied the motion. Appellant preserved the issue for review. Harris v. State, 1989 OK CR 34, 777 P.2d 1359; Sussman v. The District Court of Oklahoma County, 1969 OK CR 185, 455 P.2d 724 (granting pre-trial writ of prohibition); Barnhart v. State, 1977 OK CR 18, 559 P.2d 451 (reviewing former jeopardy claim following subsequent trial).
118 In Loyd v. State, 1911 OK CR 255, 6 Okla.Crim. 76, 116 P. 959, Judge Furman set out the essential facts which determine whether a discharge of the trial jury operates as an acquittal:
First. The defendant must be put upon trial before a court of competent jurisdiction. Second. The information or indictment against the defendant must be sufficient to sustain a conviction. Third. The jury must have been impaneled and sworn to try the case. Fourth. After having been so impaneled and sworn to try the case the jury must have been unnecessarily discharged. Fifth. That such discharge of the jury must have been without the consent of the defendant. When those things all occur, then the discharge of a jury operates as an acquittal of the defendant.
Loyd, 6 Okla.Crim. at 84, 116 P. at 962. This Court has applied these principles in such cases since statehood. Pickens v. State, 1964 OK CR 10, 393 P.2d 889; Painter v. Martin, 1974 OK CR 231, 531 P.2d 341.
19 Four of the requirements for acquittal by discharge of the jury are undisputed here. Only the question of manifest necessity remains. In United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), Justice Story wrote:
[The law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the etreumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. 'They are to [676]*676exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere ... (emphasis added).
This Court has likewise stated that the district courts
necessarily must have a discretion in the matter of determining the necessity for the discharge of the jury, but such court cannot act arbitrarily or capriciously, and unless the facts upon which the court based its judgment are entered of record, this court is unable to determine whether the action of the court was arbitrary or capricious, or in accordance with justice.
Yarbrough v. State, 1949 OK CR 100, 90 Okla.Crim. 74, 82, 210 P.2d 375, 379. Whether a district court grants a mistrial and discharges the jury upon a party's motion or sua sponte, we review the decision for abuse of discretion, Knighton v. State, 1996 OK CR 2, ¶ 64, 912 P.2d 878, 894, which is shown only when the ruling "is clearly made outside the law or facts of the case." Id.
T10 During the previous trial of these offenses, the prosecution's first police officer witness identified the substance Appellant was cupping in his hand as marijuana. When defense counsel objected to the lack of foundation, the court sustained the objection and admonished the jury. The State then laid an adequate foundation and the officer identified the substance without objection. The same officer then identified the substance that fell from Appellant's clothing as crack cocaine. Defense counsel again objected. The court sustained the objection and admonished the jury to disregard the evi-denee. The court then offered defense counsel a mistrial, which he declined. Defense counsel requested instead that the whole of the officer's testimony be excluded, which the district court refused. The court cautioned the veteran officer that he was not to inject prejudicial information into the trial, and if it happened again, the court would order a mistrial
11 During the State's direct examination of the second police officer, while being questioned briefly by the court, the witness testified before the jury that Appellant's offer to do some work for police meant he was offering "to set up another drug dealer." Defense counsel again approached the bench and objected. The court agreed the comment was improper, and asked counsel whether he was requesting a mistrial. After consulting with Appellant, defense counsel again declined a mistrial Defense counsel instead requested that the court instruct the jury that the witness had injected evidentiary harpoons. The district court refused to instruct the jury as requested. The following then transpired:
The Court: What the man said was another drug dealer. That suggests this man is a drug dealer. I believe that's why you're objecting, Mr. Allen?
Defense Counsel: It is, your Honor.
Prosecutor: Your Honor, only-the only thing that I would go back to the first element of a drug tax stamp.
The Court: That may be, but the jury has to decide whether or not this man is a drug dealer.
Prosecutor: I understand.
The Court: To just tell them that he is, is improper. Objection-o which I sustained the objection. And my problem is, quite frankly, this is a third evidentiary harpoon. They got this man [the officer] calling the man a drug dealer; we have another guy take the witness stand [sic] say something is cocaine without a laboratory analysis; and also he offers his opinion that its marijuana. We have what I consider here to be a collection of errors. I'm going to declare a mistrial on my own motion. This case-would be reversed on appeal. There is no-makes no sense to continue to go through this exercise in futility when I know the man hasn't received a fair trial. And if the man's found guilty and sent to the penitentiary and the case is sent back, it makes no sense to continue going on with this. We have a veteran police officer of 12 years who knows better than to inject an evidentiary harpoon in the case, not once, but twice. Now we have a less experienced officer-his testimony alone was not grounds for mistrial, but combined with the other two errors, I can't, in good conscience, send this case forward when I believe it's going to be reversed. It makes [677]*677no sense to continue. What do you say, Mr. Allen? I'm guessing the reason you objected was because you felt like these things were wrong.
Defense Counsel: Yes, sir.
The Court: I've overruled [sic] your objections. And with the accumulation of errors, it's my belief that this will be reversed if your guy's found guilty. We're not doing this just for practice. And even though you may want to waive these errors, I'm certain that if he's found guilty on appeal, some appeal attorney is not going to waive these errors.
Defense Counsel: I expect they would not, Judge.
The Court: We wind up just doing this for practice. That is not a good use of your time, Counselors, or mine, or this jury's. And it's certainly not good use of the defendant's time to go down and sit in the penitentiary, if he's found guilty, with my knowing, or at least feeling reasonably sure that this case will be reversed and tried again given the collection of errors. All right. Tl declare a mistrial.
When Appellant later moved to dismiss the charges based on former jeopardy, the district court again explained its rationale and purpose in discharging the jury:
The Court: The defendant now makes a Motion to Dismiss again based on double jeopardy because the Court determined that there were evidentiary harpoons that were made by not one but two witnesses, as I recall.... And it was the Court's decision to complete the trial would guarantee a mistrial. So rather than wasting the Court's time and court resources, the Court determined over the defendant's objection, to declare a mistrial, since the case was obviously tried erroneously, at least in my opinion.... I'm going to deny your Motion to Dismiss for double jeopardy. Counselor, what I was trying to do was give your client a fair trial. And it was my determination that based upon the testimony that was elicited by the State, that your client's rights were prejudiced. In order to protect him from getting a huge sentence and being sent to the penitentiary for a very long time and having to appeal it and sit in the penitentiary for a number of years before his appeal was successful, which I anticipated it would be, I was trying to save him some time. That is not double jeopardy. Deny your request.
113 In an unusual reversal of rhetoric, appellate counsel now argues, with singular dexterity, that the errors to which Appellant objected at his first trial (and which objections provoked the district court to declare the mistrial) were not errors at all, or were "clearly harmless" errors. From this, he reasons inexorably that discharging the jury was an unnecessary act amounting to acquittal. The Attorney General, uncharacteristically, counters that the errors committed in the first trial were prejudicial to Appellant's rights and the mistrial was justified by manifest necessity.
114 While the parties largely frame the issue as whether the case would have been reversed on appeal, this is not the seope of our review. The question facing the district court was whether "taking all the cireum-stances into consideration," there was "a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated." Perez, 22 U.S. at 580, 6 L.Ed. at 165. A common thread uniting our prior cases where jeopardy attached upon the unnecessary discharge of the jury was a district court's mistaken conclusion that a mistrial was required under prevailing law. Loyd, 6 Okla.Crim. at 84, 116 P. at 962 (mistrial unnecessary based on erroneous conclusion that information charging murder in one county was invalid where deceased died in another county); Yarbrough, 90 Okla.Crim. at 80-82, 210 P.2d at 378-79 (mistrial unnee-essary where juror declared personal knowledge of case during trial; statute required juror first be examined by counsel in open court); Pickens, ¶¶ 3-10, 393 P.2d at 890-92 (mistrial was unauthorized where State's principal witness failed to appear after jury was sworn); Sussman, ¶¶ 51-56, 455 P.2d at 733 (discharge of jury where State failed to prove element of arson amounted to aequit-tal); Painter, ¶ 3, 531 P.2d 341-42 (mistrial to prevent Bruton confrontation problem was unnecessary, as court could have excluded statement of co-defendant as hearsay);
[678]*678McClendon v. State, 1988 OK CR 186, ¶¶ 4-6, 761 P.2d 895, 896-97 (record did not support district court's conclusion that mistrial was required where juror recognized he knew appellant's sister); Harris, ¶¶ 21, 777 P.2d at 1365 (mistrial of burglary charge was unnecessary despite failure to certify defendant as adult; failure to certify only rendered convietion voidable and did not deprive court of jurisdiction).
115 By contrast, the determination of when evidentiary errors have denied a fair trial and doomed a case to reversal is rarely a clear cut matter. Ozbun v. State, 1983 OK CR 29, ¶ 3, 659 P.2d 954, 956, n. 1 (trial court did not abuse its discretion in declaring mistrial; witness' non-responsive comment about "two ex-cons running around with shotguns" provided a "very cogent and compelling reason"). A trial court has both the power and the duty to declare a mistrial when misconduct or other evidentiary errors have compromised the right to a fair trial. Edwards v. State, 1947 OK CR 123, 85 Okla.Crim. 125, 130-32, 186 P.2d 333, 335-36 (improper comment on defendant's failure to testify resulted in duty to declare mistrial); Mendenhall v. State, 1946 OK CR 39, 82 Okla.Crim. 220, 224, 168 P.2d 138, 140 (trial court has duty to ensure defendant receives a fair trial). The exercise of this power necessarily involves considerable legal judgment, requiring the application of sometimes complex legal rules and a broad array of factors unique to the trial court setting, including the demeanor of witnesses, the reactions of the jury, the perceived efficacy of admonitions, the cumulative impact of prejudicial errors, and other intangibles.
I 16 At the time of these errors, the previous trial was not finished, and the district court had already concluded the State's witnesses committed evidentiary errors which infected the trial with unfairness.1 The district court clearly considered not only these errors, but also the fact that counsel had timely objected when they occurred. Defense counsel strangely declined the offer of a certain curative remedy, instead requesting exclusion of the witness' testimony and an instruction to jurors about evidentiary harpoons. Counsel thus created a record with preserved errors, and possible ineffective assistance of counsel, in a mandatory life without parole case. On appeal, appellate counsel would have flourished the district court's repeated offers of a mistrial as evidence of how inflammatory the harpoons really were; and argued zealously that trial counsel's rejection of the mistrial was deficient representation which led directly to Appellant's erroneous conviction. (Given the mandatory sentence of life without parole required by Appellant's prior convictions, his arguments might well have garnered support for reversal.
{17 The district court's discharge of the previous jury after these evidentiary errors reflected a serupulous adherence to the evi-dentiary rules by which trials involving grave mandatory penalties must be conducted. We could certainly attempt to decide whether these errors were rendered harmless-not only by the district court's admonitions, but by the evidence of Appellant's guilt-but such an analysis of an incomplete trial seems unwise. We are encouraged in this view by the recognition that "[clourts of last resort must establish precedents under which innocent men are to be tried." Stough v. State, 1942 OK CR 115, 75 Okla.Crim. 62, 128 P.2d 1028, 1031-32, quoting Humphrey v. State, 1910 OK CR 54, 3 Okla.Crim. 504, 507, 106 P. 978, 979. Abuse of discretion is therefore [679]*679the only appropriate serutiny to be applied to a ruling of this character. When an experienced trial court concluded that Appellant's rights to a fair and impartial trial and effective assistance of counsel were irreparably compromised, it was faced with a "cogent and compelling reason" to order a mistrial and discharge the jury. Ozbun, 13, 659 P.2d at 956. We find no abuse of discretion in this ruling, and no former acquittal which barred Appellant's retrial and conviction. Proposition One is denied. In Proposition Three, Appellant argues ineffective assistance of counsel as a precaution against a finding that his claims in Propositions One and Two were waived. Since we addressed this claim on the merits, Proposition Three is moot as it pertains to Proposition One.
$18 Appellant's Proposition Two claims that police violated his freedom from unreasonable search and seizure by entering the apartment and approaching him in the bedroom after he turned and walked quickly out of their sight. Appellant filed a pre-trial motion to suppress the evidence, which the district court denied. He argued generally in the district court that consent to enter the apartment was cither non-existent or involuntary. On appeal he maintains this claim, but now asserts a different claim that the entry exceeded the scope of a qualified consent. This much of the claim is waived, but we review the issue for plain error.
119 Under the Fourth Amendment and Article II, section 80 of the Oklahoma Constitution, warrantless searches are per se unreasonable, absent a recognized exception. A warrantless police intrusion into a protected area is reasonable, and thus constitutionally permissible, if preceded by free and voluntary consent. Burkham v. State, 1975 OK CR 150, 538 P.2d 1121, 1123. Any person with common authority over jointly occupied premises may consent to a warrantless search. Smith v. State, 1979 OK CR 142, 604 P.2d 139, 140. Whether a voluntary consent was given is a question of fact to be determined from all the cireumstances. This Court will defer to the trial court's finding of voluntary consent where competent evidence reasonably tends to support it. Sullivan v. State, 1986 OK CR 39, ¶ 12, 716 P.2d 684, 687. Concerning the scope of a voluntary consent, the authorities show that
[when the police are relying upon consent as the basis for their warrantless search, they have no more authority than they have apparently been given by the consent ... But, the question is not to be determined on the basis of the subjective intentions of the consenting party or the subjective interpretation of the searching officer. As the Supreme Court concluded in Florida v. Jimeno, the standard is "that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the [consenting party]?"
Consents to search are not given in the abstract; the police are interested in searching a particular place, and thus it is the practice for them to specify a certain place, such as a residence or vehicle. If, as is likely, the consent given in response is general and unqualified, then the police may proceed to conduct a general search of that place. ©
W. LaFave, 3 Search and Seizure: A Trea tise on the Fourth Amendment, § 8.1(c), 610 (3d ed., West 1996) (emphasis in original; internal references omitted), quoting Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).
$20 Decisions interpreting the Fourth Amendment have also recognized that "[ujnder appropriate cireumstances police officers, in the course of their duty, may approach and question suspicious individuals in order to determine their identity or to maintain the status quo momentarily while obtaining more information, even though there are insufficient grounds for arrest." Prock v. State, 1975 OK CR 213, ¶ 18, 542 P.2d 522, 526, citing Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In Prock, this Court found that when an officer "was in a place he had a right to be" while investigating a report of suspicious behavior, the officer's seizure of a gun that was in plain view in the defendant's waist, band during the encounter was reasonable; and the evidence was admissible in a prosecution for unlawful possession of a firearm. Id., ¶¶ 18-19, 542 P.2d at 526-27. Under this [680]*680"plain view" exception to the warrant requirement, an officer may always confiscate "what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be." Lyons v. State, 1989 OK CR 86, ¶ 7, 787 P.2d 460, 463.
{21 Appellant primarily argues the officers' act of approaching him in the bedroom-at which point they observed him in the commission of an offense-exceeded the scope of Benson's consent. The record con-tradiets this. Despite evidence that Benson initially gave verbal consent to the officers' entry and later executed a written consent to search the apartment, Benson testified the officers obtained no consent and forced their way past him into the apartment. The officers testified that before they asked to enter, they introduced themselves and explained to Benson that the purpose of their visit was to investigate a complaint of drug dealing inside the apartment. They also testified that Benson later executed a free and voluntary consent to search the premises.
{22 Although the facts of the exchange between the officers and Benson were disputed, the evidence showed a voluntary consent to enter the premises. Officers did not exceed the reasonable scope of that consent when they approached Appellant in the bedroom. Viewed objectively, when the officers informed Benson of the purpose of their visit, Benson's aet of stepping aside and telling officers to "Come on in" reasonably implied a right of access sufficient to identify persons inside the apartment and make a reasonable inquiry into whether drug dealing had recently been in progress. From their lawful vantage point inside, the officers saw Appellant. When Appellant saw them, he turned and walked quickly out of their view. We need not decide whether this alone provided sufficient justification for an immediate investigative detention and pat-down search of Appellant, because no such detention or "stop and frisk" happened. The officers, lawfully within the apartment, simply approached someone they deemed suspicious "to determine their identity or to maintain the status quo momentarily while obtaining more information." Loman v. State, 1991 OK CR 24, ¶ 17, 806 P.2d 663, 666-67. Before any investigative detention occurred, the officers plainly viewed Appellant in possession of marijuana, at which point his arrest was based on probable cause.
$23 Appellant has presented nothing to suggest he held any greater right to control the area of the apartment where he was found than Benson did; he had no reasonable expectation that entering the bedroom would shield him from an encounter with the officers who were present pursuant to Benson's consent. Sullivan, ¶ 8, 716 P.2d at 686 (law. of consent recognizes that co-inhabitants assume the risk that one of their number may consent to search of common area). Because the officers' entry and Appellant's warrantless arrest for possession of marijuana were lawful, the evidence obtained when it dropped from Appellant's clothing at the police station was admissible at trial. Proposition Two is denied. Proposition Three, in which Appellant claims ineffective assistance of counsel based on trial counsel's failure to argue this scope of consent issue in the court below, necessarily fails because Appellant cannot show either deficient performance or prejudice. Malone v. State, 2007 OK CR 34, ¶ 90, 168 P.3d 185, 219 (failure to object to admissible evidence is not inceffec-tive assistance of counsel).
€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 transeript 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.
125 Appellant's argument is fraught with conceptual problems, but relief is unneces[681]*681sary for the more basic reason that he waived the right to confront at preliminary examination the witness who prepared the report. Under 22 0.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." § T51(A)(8), (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." § T51(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).
1 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:
[Although Oklahoma Statutes permit a hearsay exception for the lab results and Medical Examiner's reports, a state bear-say 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.
128 We find that the current version of and a proper showing. the statute includes an opportunity for confrontation-effectively forcing the proponent of the certified report to produce the witness for cross-examination-upon a timely motion Counsel clearly waived the right to confront the witness when he made no motion to have the witness appear as authorized under section 751(C), and offered no showing, either at preliminary examination or on appeal, of any "substantial likelihood that material evidence not contained in such report" would have been produced "by the testimony of the person having prepared the report." If counsel truly intended to exercise Appellant's rights to confront and cross-examine the witness, rather than merely intoning a spurious objection to the laboratory report, the statute provided a [682]*682clear procedure for asserting those rights. Appellant ignored the statutory procedure and waived the right to confrontation.
129 Judge Chapel in dissent argues that admission of the drug analysis report under section 751 unconstitutionally denied Appellant's right to confront his accusers at preliminary examination, relying on Melendez-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The robust exposition of that case in the dissent simply has no application here. In Melendez-Diaz, the Supreme Court held the state trial court's admission of a hearsay drug analysis report at a criminal trial, without an opportunity to cross-examine the maker of the report, violated the Sixth Amendment's Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See Melendez-Diaz, 129 S.Ct. at 2532, quoting Crawford, 541 U.S. at 54, 124 S.Ct. at 1365 ("[albsent a showing that the [drug] analysts were unavailable and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be 'confronted with' the analysts at trial") (emphasis in original).
130 The Oklahoma Constitution, Article II, section 17, establishes the right to preliminary examination in felony prosecutions. "Quite simply, a preliminary examination is not a trial." Tinikler, § 10, 815 P.2d at 192. The seope of the right to confrontation of accusers at preliminary examination, like the seope of a preliminary examination itself, is subject to reasonable legislation. LaFortune, ¶ 10, 972 P.2d at 871 (noting that 1994 legislative amendments to Title 22 substantially limited scope and purpose of preliminary examination). The Supreme Court, in a unanimous opinion by Justice Marshall, long ago acknowledged the important distinction between the two proceedings in a case from Oklahoma, Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968):
The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.
Barber, 390 U.S. at 725, 88 S.Ct. at 1322 (emphasis added).
€ 31 In section 751 of Title 22, the Legislature provided for the admissibility of certain reports at preliminary examinations and other hearings, and established reasonable conditions for a party to request an opportunity to confront the witnesses making those reports. Section 751 is a reasonable enactment, and Appellant has completely failed to show how admission of the drug analysis report at preliminary examination over his objection violated his constitutional rights. The dissent broadly endorses Appellant's constitutional attack on section 751, even though Appellant never invoked the confrontation procedure provided in section 751(C); never bothered to explore the parameters or potential limitations of that procedure through litigation in the court below; and never offered the slightest suggestion that he suffered prejudice from the admission of the drug analysis report in his case.
132 The dissent gleans from Melendez Diaz that admission of these forensic reports at preliminary examinations over the objection of the accused, pursuant to section 751, "violates the Sixth Amendment right to confrontation." We simply reiterate the words of this Court when it upheld section 751 against a confrontation challenge many years ago:
In the present case, we are not concerned with the protection of the accused's right to confrontation at trial, but rather at a proceeding that is merely precursory to a trial, a proceeding which in fact determines whether the trial should even occur. It follows then, that the rights and privileges afforded participants may not be the same for both trial and preliminary exam-imation.
Tinkler, ¶ 6, 815 P.2d at 192 (emphasis added). Melendez-Diag applies the Confrontation Clause of the Sixth Amendment strictly within the confines of a criminal trial. Un[683]*683like the petitioner in Melendes-Diag, Appellant in this case was afforded a complete opportunity to confront the maker of the drug analysis report when the analyst testified for the State and was cross-examined by defense counsel (very briefly, it turns out) at trial. We are confident Appellant's conviction is free from the error condemned by the Supreme Court in Melendes-Diaz. Because Appellant abandoned the opportunity for confrontation at preliminary examination provided by section 751(C), no further review is required. Proposition Four is denied.
133 In Proposition Five, Appellant argues that the Trafficking in Illegal Drugs Act, 63 0.8.8upp.2004, § 2-415, violates due process and equal protection by creating an unconstitutional presumption of intent to distribute drugs based solely on the quantity of drugs possessed. We addressed a virtually identical claim in Anderson v. State, 1995 OK CR 63, ¶ 15, 905 P.2d 231, 233, and concluded:
[The term "trafficking" as used in this statute does not create a presumption a defendant sold the drugs or intended to sell drugs. Rather, the Legislature, in one part of the statute, has defined "trafficking" as possessing specific amounts of a controlled dangerous substance. The statute merely sets forth guidelines for punishment, and represents a determination by the Legislature that "those who possess [a drug in excess of a specified amount] deserve a stiff punishment."
Id., quoting United States v. Maske, 840 F.Supp. 151, 158 (D.D.C.1993). Appellant's attempt here to recast the argument rejected in Anderson as an equal protection challenge is without merit. Love v. State, 2009 OK CR 20, ¶¶ 5-7, 217 P.3d 116, 118-19 (rejecting equal protection challenge). The drug trafficking statute is constitutional. Proposition Five is denied.
184 Appellant's Proposition Six argues that his mandatory sentence of life without parole for trafficking in illegal drugs violates Article TI, section 9 of the Oklahoma Constitution and the Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution. He concedes that this Court rejected the same claim in Dodd v. State, 1994 OK CR 51, 879 P.2d 822, but notes that "[t)wo of the three members of the Oklahoma Court of Criminal Appeals who decided the majority opinion in Dodd are no longer sitting on this Court." While the change of personnel on a court may provide the occasion to revisit established precedents, it cannot alone provide the justification. Appellant's sentence is indeed harsh, but it is neither eruel nor unusual in the sense prohibited by our constitutions. Proposition Six requires no relief.
135 The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 8.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
C. JOHNSON, P.J., and A. JOHNSON, V.P.J., concur.
LUMPKIN, J., specially concur.
CHAPEL, J., dissent.