People v. Tees

Per Curiam. The controlling question here is substantially the same as that which confronted the Supreme Court in Barber v. Page (1968), 390 US 719 (88 S Ct 1318, 20 L Ed 2d 255), and again in Berger v. California (1969), 393 US 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 weré 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 *485 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 US 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.