Opinion
No. 30 October Term 1971, Docket Nos. 52,924, 52,925.
Decided December 21, 1971.
Appeal from Court of Appeals, Division 2, J.H. Gillis, P.J., and Danhof and O'Hara, JJ., affirming Oakland, Leon R. Dardas, J. Submitted November 4, 1971. (No. 30 October Term 1971, Docket Nos. 52,924, 52,925.) Decided December 21, 1971. 23 Mich. App. 476 reversed.
William Tees and Ivan Batten were convicted of obtaining money by false pretenses and conspiracy to commit that offense. Defendants appealed to the Court of Appeals. Affirmed. Defendants appeal. Reversed and remanded for new trial or separate trials.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
James F. Finn, for defendants.
The controlling question here is substantially the same as that which confronted the Supreme Court in Barber v. Page (1968), 390 U.S. 719 ( 88 S Ct 1318, 20 L Ed 2d 255), and again in Berger v. California (1969), 393 U.S. 314 ( 89 S Ct 540, 21 L Ed 2d 508). That question is whether the defendants were deprived of their Sixth and Fourteenth Amendment right to be confronted by absent — from this joint trial — prosecution witnesses Connie Wood and Victor Postic. For the background of facts giving rise to the stated question, see People v. Tees (1970), 23 Mich. App. 476 and People v. Batten (1967), 9 Mich. App. 195.
Defendants were tried and sentenced in 1962, prior of course to the handing down of Barber and Berger. However, in Berger, the presently applied rule of Barber was held effective retroactively.
The prosecuting attorney concedes that "no showing was made of any attempt to procure the presence of the witness Victor Postic at the trial in the above entitled cause, other than a mere showing that he was in the Navy and outside the jurisdiction of the State." He contends however that the transcript of Postic's testimony shows that such testimony did not incriminate either of the defendants, "and indeed constituted harmless constitutional error," citing Chapman v. California (1967), 386 U.S. 18 ( 87 S Ct 824, 17 L Ed 2d 705). As for the witness Wood, the prosecutor states candidly that "the People have never contended that her testimony was harmless." His position nonetheless is that defendants "have failed to establish any abuse of discretion on behalf of the trial court's actions in ruling that sufficient effort had been expended to produce Miss Connie Wood for trial."
We are convinced that the record made here, as and for justification of nonproduction at the trial of the two named witnesses, and of the evidentiary employment during the trial of testimony given by them at the preliminary examination, comes within the constitutional ban of Barber and Berger and that it would never pass muster before the Supreme Court.
Reversed and remanded for new trial or separate trials, as the trial judge may be advised.
T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.