Petition for Writ of Certiorari — Michigan v. Dye

“O88 564,

No. P 30 1988

IN THE SUPREME COURT OF THE UNI STATES _

‘ OCTOBER TERM 1984 oSkrH F. SPAN LL

THE STATE OF MICHIGAN

Petitioner

Ve

PAUL A. DYE

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE MICHIGAN SUPREME COURT

John D. O'Hair

Prosecuting Attorney

County of Wayne

Timothy A. Baughman

Chief of the Criminal Division

Research, Training and Appeals

1441 St. Antoine

Detroit, MI 48226

(313) 224-5792

ro al

-jl-

STATEMENT OF THE QUESTION PRESENTED

I

UNDER BARBER V PAGE IS A

"GOOD-FAITH EFFORT' TO SECURE THE

TESTIMONY OF WITNESSES, SO AS TO

BE ABLE TO USE THEIR PRIOR

RECORDED TESTIMONY IN THEIR

ABSENCE, ESTABLISHED UPON USE OF

THE UNIFORM RENDITION OF

WITNESSES ACT, OR DOES THE

CONFRONTATION CLAUSE REQUIRE THAT

THE REQUESTING STATE ALSO "PRESS

LOCAL OFFICERS" IN THE OTHER

JURISDICTIONS TO ENGAGE IN

VIGOROUS SEARCHES FOR THE NAMED

INDIVIDUALS, AND, IF THOSE

EFFORTS ARE NOT VIGOROUS, TO

"SEND THEIR OWN INVESTIGATORS" TO

THOSE JURISDICTIONS?

=2-

TABLE OF CONTENTS

Statement of the Questions....... Terre

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Constitutional Provisions..... cocccee eS

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INDEX OF AUTHORITIES

Barber v Page, 390 US 719 (1966)....14,17

Commonwealth v Bohannon,

434 NE 2a 163 Gl > POP rrrTrTerrierrirriy?

Ohio v Roberts, 65 L Ed 2d 597

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

THE STATE OF MICHIGAN

Petitioner

Vv.

PAUL A. DYE

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE MICHIGAN SUPREME COURT

NOW COMES the State of Michigan, by

John D. O'Hair, Prosecuting Attorney for

the County of Wayne, and Timothy A.

Baughman, Chief of the Criminal Division,

Research, Training and Appeals, and prays

that a writ of certiorari issue to review

the judgment of the Michigan Supreme

Court entered in the above cause on

August 2, 1988.

OPINIONS BELOW

The opinion of the Michigan Supreme

Court is appended as Appendix A.

The judgment of the Michigan Court of

Appeals was entered on May 27, 1985. The

judgment of the Michigan Supreme Court

was entered on August 2, 1988. The

jurisdiction of this Court is invoked

under 28 USC 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides, in

pertinent part, that in all criminal

prosecutions the accused shall have the

right to "be confronted with the

witnesses against hin." .

The Fourteenth Amendment provides, in

pertinent part, that no person shall be

de er ihe et

-6-

deprived of liberty without "due process

of law."

STATEMENT OF THE CASE

Defendant was charged with two counts

of first degree murder of women found

shot in the head in a vacant lot.

Evidence indicated the shootings had

occurred at a particular motorcycle club.

At the first trial three members of the

club testified that the defendant had

killed the women, and that they, the

witnesses, had assisted in cleaning up

after the killings and in concealing the

crime.

The witnesses were held in "protective

custody" during the first trial because

they were in fear. Upon the conclusion

of their testimony, they were given

airfare to their previous places of

-7=

residence outside of Michigan. However,

the trial resulted in a mistrial, due to

the failure of the jury to agree, on

March 17, 1983.

On May 13, 1983 a trial date of August

22, 1983 was set for the retrial.

Previous to this date (between the

mistrial and the setting of a new trial

date) no efforts were made to locate the

three biker witnesses. Efforts to locate

the witnesses began on June 2, 1983,

eleven weeks prior to the scheduled trial

Gate, according to the police sergeant in

Charge of the case. As to one witness,

Bruce Seidel, a "LEIN" message was sent

to a police officer in Mason City, Iowa,

where Seidel was known frequently to stay

with his mother, and where he was living

at the time of the first trial. The

officer went to the home and Seidel's

SEALS Sa

-8-

mother told him her son was working out

of town, but would give him the message

to call the Detroit sergeant. After

several unsuccessful telephone attempts

to reach Seidel's mother, on June 22,

1983 another Detroit officer reached her

and received the same message from her.

When Seidel still did not call the

prosecuting attorney in Mason City was

called and a subpoena sent to enlist his

help. On August 5, 1983 a package

pursuant to the interstate rendition of

witnesses act was sent, containing a

certificate, an affidavit for the

certificate, a certificate from the

Detroit Judge, and a certificate of the

Detroit court clerk for attendance. on

August 11, an arrest warrant issued for

Seidel. His girlfriend and his mother

were contacted again, and a biker

establishment was checked. A picture was

sent on August 16. Further calls were

-9-

made to see if the materials had been

received and to check on progress. In

finding a confrontation violation by the

admission of his prior recorded testimony

the majority of the Michigan Supreme

Court stated that "Seidel was the

prosecution's most important witness.

Yet the prosecution did not send an

investigator to Mason City or ask the

Mason City Police to exert further

efforts to locate him."

As to witness James Dawson an

assistant prosecuting attorney testified

that he had been in telephone contact

with Dawson until late June or early

July, and that Dawson had been informed

of the new trial date. The sergeant in

charge reported that on July 6, 1983 he

contacted Dawson's mother who stated she

did not know where her son was. A July

12 telephone call to Dawson's residence

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revealed that the telephone had been

disconnected. On August 1 the sergeant

attempted to serve a Subpoena at a

Detroit address, but the woman answering

the door stated she had purchased the

house from Dawson three weeks previously

and did not know where he was. The

sergeant contacted the post office since

Dawson's wife was a postal employee and

obtained a tentative address in San

Bernadino County, California. On August

5, 1983 an out-of-state witness packed

was mailed to the San Bernadino

Prosecutor's Office, followed by a

picture on August 16. The San Bernadino

prosecutor's office informed Detroit that

two attempts had been made to serve

Dawson, but he had not been at the

address on either occasion. The

prosecutor stated any further assistance

would be appreciated.

-ll-

As to witness Stever, the sergeant

attempted to serve a subpoena at his

local address on August 1, 1983. A

tenant stated he did not know Stever's

whereabouts No forwarding address was at

the post office. On August 5, 1983 an

interstate witness packet was sent to

Overton County, Tennessee, where Stever

stayed On occasion, along with a

photograph on August 16. Telephone calls

revealed that overton County officials

had not located Stever. Moreover, the

sergeant checked all of the jails,

morgues and hospitals in a three county

area surrounding Detroit, and contacted

the Michigan Employment Security

Commission and the Department of Social

Services, as well as the utility

companies, but no addresses were

discovered.

The trial judge found a diligent,

aige

good-faith effort to secure the

attendance of the witnesses, and allowed

their prior recorded testimony at the

retrial. The Michigan Court of Appeals

affirmed in an unpublished opinion. A

4-3 Michigan Supreme Court reversed, the

majority finding that "The prosecution

should have begun the searches earlier,

pressed local officers to engage in the

searches, and perhaps...--in light of the

inadequate efforts of the local

police--sent its own investigators." The

majority also stated that the requirement

of a diligent, good-faith effort is

"nondelegable," so that if out-of-state

police are relied abou where the

witnesses are thought to be out-of-state,

the requisite good-faith effort is not

discharged by the request, but only if

the out-of-state police comply with the

requests and themselves make a diligent,

good-faith effort to find the witnesses.

PN eC a Le ee I ee

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The dissenting justices found diligent, °

good-faith efforts, and would have

affirmed.

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9) G WRIT

In Barber v Page, 390 US 719 (1966)

the prosecution in a state trial admitted

testimony of the declarant given at a

preliminary hearing where the declarant

was in a federal prison in another state.

The state did not attempt to employ

process to secure the witness, even

though it was possible to do so, because

the federal authorities had discretion to

refuse. This Court held that the

possibility of refusal does not excuse a

failure to request to obtain the presence

of the witness, and found that the test

for unavailability required by the

Confrontation Clause is whether "the

prosecutorial authorities have made a

good-faith effort" to obtain the presence

of the witness at trial. Absent even the

attempt, that showing was found lacking

in Barbe Pace.

J :

-15-

An unavailability question was also

before this Court in Ohio v Roberts, 65 L

Ed 2d 597 (1980). There the defense had

called a witness at the preliminary

hearing in an unsuccessful attempt to

elicit from her an admission that she had

given the defendant checks and credit

cards to use without informing him that

she had no permission to use them (the

charge was forgery of a check, and

possession of stolen credit cards).

Between November 1975 and March 1976 five

subpoenas for four different trial dates

were issued for this witness at her

parents' residence. She was not at home

when any of the subpoenas were executed.

At trial, the witness's preliminary

hearing testimony was used to rebut

defendant's testimony that the absent

witness had given him the credit cards

and the checkbook with the understanding

he could use them. Her mother was the

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sole witness regarding the witness's

absence, and testified that soon after

BE ASI, NPI IS an SO Oa

the preliminary hearing the witness had

left home for Tucson, Arizona. About a

year before trial a San Francisco social

worker had called the parents about a

welfare application the witness had

filed. Through this worker the parents

reached their daughter once by telephone,

but after that time she had called them

only one other time, and had not been in

contact with her sisters. When she had

last called she had said she was

traveling outside the state, did not say

where, and the parents knew of no way to

reach her.

This Court upheld the admission of the

prior testimony, finding a "good-faith

effort" to secure the witness's

testimony. This Court observed:

To be sure, the prosecutor might

have tried to locate by telephone

— sesniimaiasadeaiiiaiiaiieiiiaiiaiiaiiiaiiaiiaas

|

-l17-

the San Francisco social worker

with whom Mrs. Isaacs had spoken

many months before and might have

undertaken other steps in an effort

to find Anita. one, in hindsight,

may always think of other things.

Nevertheless, the great

improbability that such efforts

would have resulted in locating the

witness, and would have led to her

production at trial, neturalizes

any intimation that a concept of

reasonableness required their

execution. 65 L Ed 2d at 614.

This Court also distinguished Barber v

Page in that in that case "the

prosecution knew where the witness was,

procedures existed whereby the witness

could be brought to the trial, and the

witness was not in a Position to

frustrate efforts to secure his

production." 65 L Ed 24 at 614-615.

The holding of the Michigan ‘See

Court majority in this case is, in the

words of the dissent, a classic case of

the exercise of "hindsight, and ---the

Suggestion of ‘other things'" which the

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prosecution could possibly have done,

inconsistent with this Court's teaching

in Qhio v Roberts. Because on this

record it cannot be said the in order to

satisfy the Constitution the prosecution

“should have begun the searches earlier,

pressed local officers (in other

jurisdictions) to engage in the searches,

and perhaps...sent its own investigator"

this Court should grant plenary review to

further delineate the requirements of

“good-faith efforts," particularly where

employment of the Uniform Rendition of

Witnesses Act is involved, and it is held

that the Constitution requires not only a

request under the Act, but that the

Confrontation Clause is violated unless

the requesting state somehow insures that

the other jurisdiction itself makes

diligent good-faith efforts to serve

process on the witness. The need for

further explication by this Court is also

TINY © TART oe

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demonstrated by Commonwealth v Bohannon,

434 NE 2d 163 (1982) where the court

found that a good-faith effort could not

be shown because the use of the uniform

rendition of witnesses act had been too

early, as the local judge from the

requested jurisdiction had refused to

compel the witness to attend the

proceedings, finding an undue hardship,

13 months prior to trial. Here, the

Michigan Supreme Court found that the use

of the act was too late, and that the

requesting state has an obligation to

send investigators to the requested

jurisdiction if that jurisdiction is not

sufficiently vigorous in its efforts to

find the witnesses. This Court shoulda

Clarify the requirements of "good faith

efforts."

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CONCLUSION

WHEREFORE, for the reasons above

stated, Petitioner submits that plenary

review should be granted.

Respectfully submitted,

John D. O'Hair

Prosecuting Attorney

County of Wayne

Timothy A. Baughman

Chief of the Criminal

Division, Research,

Training and Appeals

1441 St. Antoine

Detroit, MI. 48226

(313) 224-5792

OPINION

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv

PAUL ALLEN DYE,

Defendant-Appeliant Filed Aug 2

1988

No.77166

BEFORE THE ENTIRE BENCH

LEVIN, J.

Paul Dye was convicted on retrial of

two counts of first-degree murder! and

two counts of possession of a firearm

during commission of a felony.2 pDye's

first trial was declared a mistrial, with

the jury voting eleven to one to acquit

him on the first-degree murder charges. 3

At the first trial the testimony of three

witnesses--fellow members of a motorcycle

club--provided the only evidence that Dye

was the killer. At Dye's retrial the

prosecution did not produce these three

witnesses. The trial court allowed

assistant prosecutors to read the

witnesses' earlier testimony to the jury.

This appeal presents two questions.

The first is whether the prosecution

showed due diligence in attempting to

Produce the three witnesses for the

second trial. The three witnesses were

in protective custody immediately

preceding and until they completed their

testimony at the first trial, and were

then released. Subsequent efforts to

locate the witnesses for the second trial

were tardy and incomplete. We reverse

and remand for a new trial.

The second question concerns

evidentiary issues. The prosecution in

its case in chief elicited testimony from

the three witnesses anda Richard Troher

that Dye had not accused anyone else of

committing the killings and had failed to

make a statement to the police. On

retrial the prosecution may not in its

case in chief ask Troher whether Dye

accused another of the killings, or

inquire on direct examination whether Dye

made a statement to the police.

I.

Early in the morning of August 29,

1982, two women were killed in the

clubhouse of the Forbidden Wheels

Motorcycle Club. They had each been shot

through the head. Their bodies were

dumped on the curb of a residential

street and discovered there by early

morning commuters.

Four club members were in the

clubhouse at the time of the murders.

Dye, Bruce Seidel, James Dawson, and

Steve Stever all admitted to helping

clean up the clubhouse after the

killings. Seidel, the prosecution's

chief witness, accused Dye of killing the

women. Dye accused Seidel of being the

killer.4 Dawson and Stever, who had

-4a-

been in an upstairs apartment apparently

asleep at the time of the killings,

testified that Seidel walked upstairs,

awakened them, and told them that Dye had

just killed two women. Seidel, Dawson,

and Stever further testified that after

Seidel and Dye dumped the bodies, all

four met in Stever's garage, where Dye

admitted to the killings.5

Seidel, Dawson, and Stever testified

_ under a limited grant of immunity.6 a11

three left the state after the killings,

and returned to Michigan to testify at

the first trial. Upon their return they

were kept in protective custody until

after they completed their testimony to

prevent other "bikers" from harming then.

The prosecution failed to produce any of

the three to testify at the second trial.

The Sixth Amendment of the United

States Constitution, and art 1, section

20 of the Michigan Constitution of 1963,

provide in part that in all criminal

prosecutions the accused shall "be

confronted with the witnesses against

him...."7 The United States Supreme

Court has emphasized that the purpose of

the Confrontation Clause is to provide

for a face-to-face confrontation between

a defendant and his accusers at trial.8

This confrontation is an important right

of the defendant because it enables the

trier of fact to judge’'the witnesses'

demeanors. The Court in Ohio v Roberts,

448 US 56, 63-64; 100 S Ct 2531; 65 L Ed

2d 597 (1980), declared:

"(T)he Clause envisions ‘a personal

examination and cross-examination of

the wintess in which the accused has

an opportunity, not only of testing

the recollection and sifting the

conscience of the witness, but of

. -6a-

compelling him to stand face to face

with the jury in order that they may

look at him, and judge by his

demeanor upon the stand and the

manner in which he gives his

testimony whether he is worthy of

belief, '"9

Demeanor evidence is important. As

the Third Circuit Court of Appeals noted

in Virgin Islands v Aquino, 378 F 24

540,548 (CA3, 1967):-

"“"Demeanor is of the utmost

importance in the determination of

the credibility of a witness. The

innumerable telltale indications

which fall from a witness during the

course of his examination are often

much more of an indication to judge

or me of his credibility and the

reliability of his evidence than is

the literal meaning of his words.

Even beyond the precise words

themselves lies the unexpressed

indication of his alignment with one

side or the other in the trial. It

is indeed rarely that a

cross-examiner succeeds in

compelling a witness to retract

testimony which is harmful to his

Client, but it is not infrequently

that he leads a hostile witness to

reveal by his demeanor--his tone of

voice, the evidence of fear which

Grips him at the height of

cross-examination, or even his

defiance--that his evidence is not

to be accepted as true, either

because of partiality or

overzealousness or inaccuracy, as

well as outright untruthfulness.

The demeanor of a witness, as Judge

Frank said, is ‘wordless language. '

Vv Vv a qd

, 175 F 2d 77,80 (CA

2, 1949)."

A transcript of prior testimony may

nevertheless be offered in evidence upon

a showing that the witness is unavailable

and that the testimony bears satisfactory

indicia of reliability.1°

To establish the witness'!

unavailability, the proponent! must

establish that he has made a diligent,

good-faith effort to obtain the witness’

presence at trial.12 this is a

substantial requirement. "(I)f there is

a possibility, albeit remote, that

affirmative measures sitqne produce the

declarant, the obligation of good faith

may demand their effectuation. "13

In Motes v United States, 178 US 458;

20 S Ct 993; 44 L Ed 1150 (1900), the

United States Supreme Court held that

police negligence barred a finding of

ae

good-faith diligent effort. A

codefendant in a murder prosecution had

provided the primary evidence against the

other defendants in testimony at a

preliminary examination. Prior to trial

he escaped due to the negligence of the

police. At trial the judge admitted the

preliminary examination testimony as

substantive evidence against the

remaining defendants. The United States

‘Supreme Court reversed, stating:

"We are unwilling to hold it to be

consistent with the constitutional

requirement that an accused shall be

confronted with the witnesses

against him, to permit the

deposition or oral statement of an

absent witness (taken at an

examining trial) to be read at the

final trial when it does not appear

that the witness was absent by the

suggestion, connivance or

procurement of the accused, but does

appear that his absence was due to

the negligence of the prosecution."

178 US 474.

B.

Whether the prosecution made a

diligent, good-faith effort to produce

-9a-

missing witnesses is an evaluation that

depends on the particular facts of each

case. The record in the instant case

indicates that, in the circumstances of

this case, the prosecution failed to make

such a diligent, good-faith effort to

produce Seidel, Dawson, and Stever.

Seidel, Dawson, and Stever had been

difficult to locate for the first trial.

The officer in charge, Kuhnlein,

testified that when the three were

released, he knew that each was going out

of state. All three had incentive to go

into hiding. They were in protective

custody during the first trial to prevent

other “bikers" from harming them for

testifying against Dye. This threat

remained after their release.

Additionally, the witnesses may have

feared prosecution; they had been given

only limited immunity. All three were

admitted accomplices after the fact in

-10a-

the murders. Stever and Dawson were

suspects in a related firebombing.14

The mistrial was declared on March 17,

1983. On May 13, 1983, the court set

Dye's retrial for August 22, 1983. As of

May 13, the witnesses had been released

for approximately two months. During

this two-month period the prosecution had

made no effort to relocate Seidel,

Dawson,15 or Stever even though the

prosecution knew that the witnesses were

needed, they had expressed an intention

to leave the state, and had incentives to

go into hiding.- And once the prosecution

learned of the retrial date, its efforts

to produce the witnesses were, in the

circumstances of this case, tardy and

incomplete. These efforts are detailed

below.

1

An assistant prosecutor testified that

during March, April, and early May of

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1983, Dawson repeatedly telephoned to ask

whether and when Dye was going to be

released on bond. Because Dawson had

testified against Dye, he may have feared

Dye would seek revenge. Dye was released

on June 17, 1983. The prosecution did

not attempt to communicate with Dawson

until four weeks after Dye's release.

The prosecution telephoned Dawson on July

12 and learned that his telephone line

had been disconnected. No investigation

into Dawson's whereabouts, however, was

conducted on August 5--three weeks later,

and just seventeen days before the

retrial date--when the prosecution

attempted to serve a subpoena on Dawson

at a Detroit address. -

The woman answering the door reported

that she had purchased the house from

Dawson three weeks before and that she

had no idea where he was. It does not

appear that any effort was made to

s

-l2a-

communicate with the lawyer, real estate

agent, or bank involved in the house

sale. Had the prosecution investigated

immediately upon learning on July 12 that

Dawson's phone had been disconnected,

they would--according to the date given

by the woman Who purchased the

house--have arrived at the house before

the sale was completed and while Dawson

might have still been in the area.

Dawson's wife was a postal employee. 16

Through her employer the prosecution

Obtained a forwarding address in

Cucamonga, California. On August 5,

1983--just seventeen days before Dye's

retrial--the prosecution mailed to the

California district attorney for

Cucamonga a certificate under the uniform

act to secure the attendance of witnesses

from without a state in criminal

Pproceedings,17 requesting that the

Prosecutor serve and

-l3a-

arrest Dawson. The assistant prosecutor

did not communicate with the California

district attorney again and until August

16--less than a week before Dye's

retrial--when he learned that the

California district attorney had received

the certificate but had not yet served

Dawson. The record does not indicate

that the California district attorney had

even begun looking for Dawson. Also on

August 16, the assistant prosecutor

mailed a photograph of Dawson to the

California district attorney. on August

18, four days before Dye's retrial, the

California district attorney telephoned

and said that while Dawson had apparently

been living at the Cucamonga address, he

was not there at the time the

investigators visited. They thought that

Dawson had a job lead in the area and

said they were going to continue trying

to locate him. There is no evidence of

-l4a-

any further efforts by the California

authorities or of further communication

between the prosecution and the

California district attorney after the

August 18 phone call1.18

It thus appears that although both

Dawson and his wife were living at an

identified address in California, the

only effort of record to locate him was a

single visit by California investigators

to that address. The record does not

indicate on what day or at what time that

visit occurred. There is no reason to

conclude that further efforts to locate

Dawson or his wife at that address would

have been of no avail.

2

The prosecution did not attempt to

communicate with Seidel, the sole

eyewitness, until June 2--almost three

months after Seidel's release and almost

a month after the date for Dye's retrial

-15a-

had been set--when it sent a request for

information to the police department of

Mason City, Iowa, where Seidel had

previously lived with his mother.

The Mason City police telephoned

Seidel's mother and reported that,

according to his mother, Seidel was

working out of town and that when he

returned his mother would give him the

message to call the assistant prosecutor.

This request was apparently repeated on

June 22, and the assistant prosecutor

apparently received the same response.

On July 7, the prosecution telephoned

Mrs. Seidel directly. She made the same

response she had made to the Mason City

Police.

Although it had clearly been

established by July 7 that Seidel was

missing, there was no further

communication with his mother or any

visit to his mother's home until

-16a-

approximately six weeks later--<about

August 16, less than one week before

Dye's retrial--when the prosecution

apparently cailed the district attorney

for Mason City and learned that he had

received a certificate forwarded by the

prosecution on August 5 under the uniform

act for Seidel.19 Some time after

receipt of the certificate members of the

Mason City Police visited the house, and

it appears that they believed that Seidel

was living there.

Also on August 16, the prosecution

mailed a photograph of Seidel to the

local district attorney. There is no

evidence of any further communication

between the prosecution and the local

district attorney.

It does not appear that the Mason City

police made more than one visit to the

Seidel home. Seidel was the

prosecution's most important witness.

ret Ne

-17a-

Yet the prosecution did not send an

investigator to Mason City or ask the

Mason City Police to exert further

efforts to locate hin.

The prosecution did not suggest

checking, nor did the local police--as to

Seidel, Dawson, or Stever--check locales

frequented by bikers. Seidel was in fact

arrested by Iowa police on another charge

one week after Dye's retrial ended.

Stever apparently left the state

several days after having been

released.29 The prosecution did not

attempt to locate Stever until August

l--four and a half months after the

mistrial was declared and just three

weeks before Dye's retrial was scheduled

to begin--when Officer Kuhnlein attempted

to serve Stever with a subpoena at a

-18a-

local home address. The man who answered

the door was renting the house, said that

he had not seen Stever for some time, and

thought that he had gone either to

Wisconsin, Tennessee, or California. The

tenant was about to leave because he had

learned that the house was to be

repossessed.

On August 5, seventeen days before

Dye's retrial, the prosecution mailed to

the Livingston, Tennessee, district

attorney a certificate under the uniform

act for Stever. Stever had traveled from

Livingston to Detroit to testify at the

first trial, but there was little or no

reason to believe that he had returned to

Livingston. Dawson's mother told

Kuhnlein that Stever almost certainly had

not returned to Tennessee.

On August 16 the assistant prosecutor

telephoned the Livingston district

attorney and learned that he had received

fe SS | es lee? lel ee one pts’ IS et hiatal e

* ee FY Pe er ee Ee release Ee

rohuhiaeonae sh el Cleese” are a Sn fens . ‘

Ge SECA Gee q ey ah ae : . 4

-19a-

the certificate, but had not yet served

Stever. The record does not indicate

that the Livingston district attorney had

begun looking for Stever. There is no

evidence of any further communication

between the prosecution and the local

district attorney.

On August 22, during the afternoon

session of the due diligence hearing,

officer Kuhnlein testified that after his

direct testimony that morning, he

telephoned Detroit Edison and learned

that Stever had been receiving electrical

service at his Michigan address under the

name of "Donald" Stever. There is no

evidence that the prosecution relayed

this information to the Livingston

district attorney or followed up on it in

any other way.

There is no evidence that the

Prosecution communicated with the

repossessing bank to determine if it had

~

-20a-

any forwarding addresses or could provide

other leads to persons who may have known

Stever's whereabouts. The tenant said

that his previous month's rent was

collected by a person whom he thought was

a member of Stever's family. There is no

evidence of an effort to locate this

person.

The prosecution had not obtained the

names or addresses of any of Stever's

- relatives other than the address of his

mother. And, although it had Stever's

mother's address, it did not attempt to

communicate with her. The prosecution

had the name of Stever's girl friend--who

had reportedly left with him--but there

is no evidence of any attempt to

communicate with her friends and

relatives.

Cc

The Illinois Court of Appeals in

People v Payne, 30 [Ill App 3d 624; 332

5

|

F

:

-2la-

NE2d 745 (1975), determined that the

prosecution had failed to exercise

good-faith diligence in attempting to

locate a missing witness. Jerome Payne

was tried for robbing Oscar Fallin. rN

mistrial was declared because the jury

was unable to agree. On retrial, Payne

vas convicted. Fallin testified at the

first trial, but did not appear at the

retrial. The transcript of his previous

testimony was read to the jury.21l

The prosecution made numerous attempts

to locate Fallin. The chief investigator

noted that he made "20-25 attempts" to

locate him before Payne's retrial. After

detailing the prosecution's substantial

efforts, the court declared that they

were insufficient. Not only had the

prosecution been tardy and incomplete in

its efforts to find Fallin after the

first trial, it had known that Fallin had

been difficult to find for the first

-22a-

trial and yet had taken no measures to

assure his return for the retrial. "The

State was aware that Fallin had been a

- difficult witness to locate for the first

trial, but took no steps to insure his

appearance later even though it knew that

his testimony was essential to a

conviction and that the case would be

tried again." Payne, su , p.629. The

prosecution's failure to take adequate

measures to assure that a vital witness

against the defendant would appear at a

retrial barred a finding of good-faith

due diligence. 22

People v Schepps, 217 Mich 406; 186 NW

508 (1922) describes the sort of thorough

efforts that constitute due diligence.

The issue at trial was whether Schepps

was one of a group of robbers. The

preliminary examination testimony of

Florence Earl, although neither

conclusive nor the sole evidence

Pal ks oR

-23a-

identifying Schepps as one of the

robbers, was highly convincing. Earl was

subpoenaed but did not appear at trial.

The court continued Schepps' trial a

number of times (for an unknown number of

weeks) while the prosecution attempted to

find her. Officers searched Detroit and

followed up rumors that she had moved to

Canada, searching Windsor and

interviewing her parents in Ontario, and

her two sisters "found living elsewhere."

This Court held that these efforts

were sufficient to enable the prosecution

to use Earl's preliminary examination

testimony at trial. In contrast with the

instant case, the trial was continued a

number of times and the prosecution

promptly followed all leads, traveling

itself to a foreign jurisdiction to look

for the witness.

D

Here, as in Payne, the prosecution

~24a-

knew that Seidel, Dawson, and Stever had

been difficult to locate for the first

trial, that they had left the state and

had an incentive to go into hiding.

Subsequent belated and incomplete

efforts did not rise to the level of

good-faith due diligence. The efforts to

locate each should have begun earlier.

The prosecution knew on May 13 that Dye's

retrial was set for August 22, but did

not attempt to locate Seidel until one

month later, did not attempt to locate

Dawson until two months later, and did

not attempt to locate Stever until almost

three months later. The initial attempts

all failed, yet the prosecution did not

increase its efforts.

The prosecution relied on the local

Cucamonga, Mason City, and Livingston

police to do the investigatory work, but

was tardy in providing the local police

with sufficient information and did not

ok ep ape

S gre cg Eh ae 0g

-25a-

follow up and press the local police to

act. Photographs of the witnesses were

mailed less than a week before the

retrial.

Certificates were sent under the

uniform act, but in themselves these did

not obligate the local police to

undertake a diligent search. The uniform

act is a mechanism for the production of

witnesses; it does not oblige local

police to search for a missing witness.

Invocation of the uniform act's mechanism

would have been important had Dawson,

Seidel, or Stever been found out of

state. The act would then have enabled

the local police to penduce the witness

for the prosecutor in Michigan.

Invocation of the uniform act's

production mechanism, however, is not a

substitute in itself for a diligent

effort to find the witnesses: 23

The prosecution's obligation to make a

erin

-26a-

@Giligent good-faith effort is

nondelegable. If the prosecution relies

On out-of-state police to follow

particular leads, and they make a

diligent good-faith effort to find and

produce the witness, then their efforts

may discharge the prosecution's

Obligation. In the instant case,

however, there is no evidence that the

out-of-state police made diligent

good-faith efforts. The Mason City

Police believed Seidel was living at home

with his mother, but apparently only

visited the home once. The Cucamonga

Police believed Dawson was living and

working in the area, yet apparently made

only one visit to his suspected residence

and did not attempt to find where his

employment lead may have led. The

efforts did not constitute good-faith due

diligence.

-27a-

The prosecution should have begun the

searches earlier, pressed local officers

to engage in the searches, and perhaps,

as in Schepps--in light of the inadequate

efforts of the local police--send its own

investigator. The prosecution undertook

none of these steps. Such “affirmative

measures" may well have produced the

witnesses.

Iit

Dye asserts that two lines of inquiry

by the prosecution in its case in chief

were improper. The first was questions

put to Seidel, Dawson, Stever, and

Richard Troher24 whether Dye had in their

presence accused anyone else of

committing the killings. The second was

questions put to these four witnesses

whether Dye had accompanied them to make

a statement to the police.

We agree with Dye that questioning

Troher whether Dye had accused anyone

-28a-

else of the killings, and questioning all

four witnesses whether Dye had made a

statement to the police, was improper.

It would not have been "natural," within

the meaning of People v Collier, 426 Mich

23; 393 NW2d 346 (1986), for Dye to have

made such accusation in Troher's presence

or to have made a statement to the

police. On remand, these questions

| should not be asked during the

prosecution's case in chief.

Questioning Seidel, Dawson, and Stever

whether Dye accused anyone else of the

killings, however, was not improper.

Their testimony that Dye failed to accuse

anyone else of the killings correlated

with their testimony that Dye had

confessed the killings to then. This

questioning may be allowed on remand.

A

Dye testified that he did not kill the

two women. He said that Seidel killed

-29a-

the women, and that he had been sleeping

and was awakened by the shots.25 By his

own admission, however, Dye was an

accessory after the fact. He

participated with Seidel, Dawson, and

Stever in cleaning up the clubhouse and

joined Seidel in disposing of the bodies.

Prior to his arrest, Dye did not speak

with the police of his involvement in the

killings. Dye did not tell police that

Seidel was the killer.

B

In People v Collier, supra, this court

adopted the evidentiary standard set

forth in Commonwealth v Nickerson, 386

Mass 54; 434 NE2d 992; 35 ALR4th 722

(1982). As a general rule, the

prosecution cannot impeach a defendant on

the basis of his prearrest silence.

"Allowing impeachment with prearrest

silence suggests that a defendant has a

duty to incriminate himself and burdens

Te i

eee en enn ee a ee

.

-30a-

his right to testify on his own behalf."

Collier, Supra, p 34. This is

inappropriate because "'it is a generally

held notion that one does not have to say

anything to the police and that what one

does say may be used against him." Iq.26

In Collier, this court held that the

prosecution's impeachment of defendant

Collier's prearrest silence was proper.

Collier, according to his testimony, had

acted in self-defense. He "testified

that he was in fact the victim of an

armed robbery rather than a perpetrator

of an assault." ia-, p 34. The court

concluded that it would have been natural

for Collier to contact the police:

"(W)e believe it is entirely natural

and expected that one who has been

robbed under the circumstances

related by the defendant would

report the crime to the police.

IEF ME Be

ee ee Si! Se poate

-3lia-

arrested, and to retrieve his

property." Id., pp 34-35.

Where it would not have been natural for

the defendant to contact the

police--where doing so may have resulted

in the defendant incriminating

himself--the prosecution cannot properly

comment on the defendant's failure to

contact the police.27

We conclude that it would not have

been natural for Dye to have made a

statement to the police because if he had

done so such a statement would have

tended to incriminate him as an accessory

after the fact.

Nor would it have been natural for Dye

to have accused someone else in Troher's

presence. According to Dye, he was an

accomplice after the fact; hence an

accusation of Seidel would also have

incriminated Dye. Further, there was no

-32a-

apparent incentive for Dye to have, in

Troher's presence, accused Seidel. An

accusation of Seidel by Dye in Troher's

Presence would not have aided Dye.

" esa a Wr en

Do cap tA Die iad tis biti au Sa

Questioning Seidel, Dawson, and Stever

concerning Dye's failure to accuse anyone

else of the killings, however, was not

improper. In contrast to Troher, Seidel, q

Dawson, and Stever testified that Dye hada

confessed to them that he had committed

the killings. Their further testimony

that Dye had not accused anyone else of ;

the killings correlated with their |

testimony concerning his confession. If

Dye had in fact confessed to Seidel,

Dawson, and Stever that he was the

killer, he would not have accused anyone

else of the offenses. This questioning

merely restated in a different form the |

properly admitted testimony concerning

Dye's confession.

EMRE Sn ea Mee NES

Questioning the three witnesses

concerning Dye's failure to make a

statement to the police,28 however, did

not reciprocate their testimony that Dye

had confessed. Applying the Collier

analysis, it would not have been natural

for Dye to have made a statement to the

police for the reasons set forth above:

Dye, according to his own testimony, was

an accomplice after the fact, and any

statement that he had made would have

incriminated him. a

Because it would not have been

"natural" for Dye to have made a

statement to the police, on remand the

prosecution should not in its case in

chief ask questions concerning or

adverting to Dye's failure to make a

statement to the police.

-34a-

Dye on direct examination testified

that he did not make a statement to the

police because his attorney advised him

not to do so.29 The prosecution asserts

that because Dye offered this testimony,

the prosecution could have subsequently

P 4 a hes i a RO Le

a Nee eA Se cal ee em on Ae aay

offered impeaching testimony, and

therefore--even if the prosecution

yp ee See te

improperly included the testimony in its

case in chief--any error was harmless.

‘ ate es a De

On these facts, the prosecution's

argument is circular.

In all events, on remand Dye should be

able to avoid misunderstanding concerning

his intentions by an affirmative

statement in limine whether he intends,

absent inquiry by the prosecution in its

case in chief, either to claim that his

prearrest conduct tended to indicate his

innocence, or to explain why he did not

make a statement to the police, or to

-35a-

refer to his own statement to the arson

investigators. 3°

We reverse the decision of the Court

of Appeals and remand for a new trial.

/S/

Charles Levin

Michael F. Cavanagh

Dennis Archer

11/April 1987

1 MCL 750.316; MSA 28.548.

2 MCL 750.227b; MSA 28.424(2).

3 In the retrial, the jury twice asked

the trial judge to declare a hung jury.

Each time the judge told the jury to

continue their deliberations.

4 Dye and Seidel spent the evening

together in a bar and then came to the

clubhouse. Shortly after they arrived,

the two victims rang the doorbell and

were admitted. Dye, Seidel, and the two

women drank and played pool for some

time. Neither Dye nor Seidel had

previously known either woman.

According to Seidel, after some time

Dye began betting one of the victims that

4

8

4

4

a

4

4

%

“4

&

3

E

Pee ee ek Oe Pe le ee

Pies Ea NA ST ei OS a Rag OE MRIS CSN SO a a

bie, are

a

be

Se SO RS

PEE ee Tre SAE I a ESE

-37a-

before the night was over she would

perform oral sex upon hin. At this

point, Dye and Seidel were on the service

side of the club's bar, and the two women

were seated on the customers' side.

Seidel said that when this "betting"

began, he withdrew from the conversation

and went to the other end of the bar.

According to Seidel the "betting" talk

became increasingly heated, with Dye

finally exclaiming that she would perform

oral sex. According to Seidel, Dye then

pulled a revolver from the waistband at

the small of his back, racked a shell

into the chamber, placed the muzzle

against her forehead, and pulled the

trigger. According to Seidel, the back

of her head exploded and she fell off the

barstool and onto the floor. Seidel said

that he then turned away. He said that

he heard the second victim say that she

did not believe what was happening, heard

-38a-

Dye say "I do," and then heard a second

shot. When he turned back the second

victim lay dead on the floor.

According to Dye, Seidel was serving

the women drinks and Dye was observing

when Dawson and Stever burst in out of

breath and exclaimed that they had just

firebombed the house of the mother of a

former president of the Forbidden Wheels

Club. (The house had in fact been

firebombed and a police dog tracked a

scent to within 100 feet of the

Clubhouse.) Dawson and Stever approached

Dye, Seidel, and the two women and began

relating their story. Seidel objected,

indicating that they should not discuss

this in front of the two women. Dawson

and Stever then went upstairs to “watch

the smoke" and see if they could see some

flames. Dye then decided to go home. He

called his wife, who after learning that

-39a-

Dye had been irinking told him to stay at

the «lub. (Dye's wife corroborated

receipt of the phone call and the

substance of the conversation.) Dye then

lay down on a couch and asked Seidel to

wake him at about 6:00 a.n. Dye was

awakened by a loud noise, and then heard

another loud noise and a thump. Dye then

stood, approached the bar, and saw Seidel

standing over the two bodies.

> Dye denied confessing.

6 Their own testimony could not be used

in any prosecution against then.

7 The Sixth Amendment applies to the

states through the Fourteenth Amendment.

Pointer v Texas, 380 US 400; 85 S Ct

1065; 13 L Ed 2d 923 (1965).

~ —_—

~

-40a-

8 see, e.g. Ohio v Roberts, 448 US 56;

100 S Ct 2531; 65 L Ed 2d 597 (1980);

Mattox v United States, 156 US 237; 15 §s

Ct 337; 39 L Ed 409 (1895).

9 Quoting Mattox v United States, n 8

Supra, pp 242-243. See also Pointer v

Texas, n 7 supra, p 405. ("There are few

subjects, perhaps, upon which this Court

and other courts have been more nearly

unanimous than in their expressions of

belief that the right of confrontation

and cross-examination is an essential and

fundamental requirement for the kind of

fair trial which is this country's

constitutional goal.")

10 See Ohio v Roberts, n 8 supra; People

Vv Schepps, 217 Mich 406; 186 NW 508

(1922). MCL 768.26; MSA 28.1049

provides:

wile ey, OE ne cr a

Saati ws

tes

eS

rs £2 at OS

ER

-4la-

“Testimony taken at an examination,

preliminary hearing, or at a former trial

of the case, or taken by deposition at

the instance of the defendant, may be

used by the prosecution whenever the

witness giving such testimony can not,

for any reason, be produced at the trial,

or whenever the witness has, since giving

such testimony become insane or otherwise

mentally incapacitated to testify.

This Court noted in People v McIntosh,

389 Mich 82, 87; 204 NW2d 135 (1973),

that the statute must be construed in a

manner consistent with prevailing

constitutional authority.

1l The level of diligence required may

vary depending upon the nature of the

action and the proponent's identity. it

has been said that the prosecutor is held

to a higher standard as the proponent

than is a criminal defendant or parties

in a civil action. McCormick, Evidence

(3d ed), Section 253, pp 756-757.

~42a-

*2 Ohio v Roberts, n 8 supra, p 60,

quoting Barber v Page, 390 US 719,

724-725; 88 S Ct 1318; 20 L Ed 2d 255

(1968); People v McIntosh, n 10 Supra, p

86. ("(T)he prosecution must show due

diligence in their efforts to produce

such [allegedly unavailable} witnesses,")

*3 Ohio v Roberts, n 8 supra, p 74

(emphasis in original).

14 See n 4.

15 The assistant prosecutor testified

that during this period Dawson repeatedly

telephoned him to learn whether and when

Dye would be released on bond. All these

contacts appear to have been initiated by

Dawson, not the prosecution.

=

ey

:

;

$

-43a-

16 It does not appear that the

prosecution made any efforts to

communicate with the wife's relatives or

friends.

17 MCL 767.91 et seq.; MSA 28.1023 (191)

a et seq.

18 officer Kuhnlein telephoned the jails,

> hospitals, and morgues in Oakland,

) Macomb, and Wayne counties. He also

” checkea with the Department of Social

services. The record does not indicate

3 when these inquiries were made.

19 See n 17.

20 According to Dawson's mother.

21 The opinion does not indicate whether

there were any other witnesses or other

evidence implicating Payne.

~44a-

22 This Court's most recent opinions on

the prosecution's duty to produce

witnesses at trial indicate that the

prosecution's efforts in this case failed

to rise to the level of good-faith due

diligence. In People v Pearson, 404 Mich

698; 273 NW2d 856 (1979), this Court

evaluated the prosecution's efforts to

produce res gestae witnesses in four

consolidated cases. In Willie Pearson

and Lindsay Pearson, this Court held that

the alleged res gestae witness was not in

fact a res gestae witness. In Schwartz

and Wynn, this Court held that the

prosecution's efforts to produce the

missing res gestae witness did not rise

to the level of due diligence.

We note first that the prosecution's

duty to produce res gestae witnesses

might be less strict than its duty under

-45a-

the Confrontation Clause to produce

witnesses whose testimony is offered

against the defendant.

Schwartz was convicted of delivery of

heroin. The police officer making the

arrest was introduced to Schwartz by one

Don Cager, an informant who was present

during the sale. Cager was endorsed on

the information but was not produced at

trial.

The last time that the prosecution had

seen Cager was six months before

Schwartz's trial. In the five weeks

before Schwartz's trial, the prosecution

made several attempts to, find Cager,

including going to his home and speaking

to a local police officer. During trial

the prosecution again checked his

residence, a boathouse, a firehouse, a

pool hall, two bars, and two restaurants.

This Court held that the appropriate

standard was due diligence, not just good

~46a-

faith. Even though "ijt was Clear that

(the witness] was a res gestae witness

who would have to be Produced," the

Prosecution made only belated attempts to

find Cager. As in the present case,

"(O)f particular concern to this Court,

however, is that no serious effort was

made sufficiently in advance of trial to

allow for the difficulties which

occurred," Pearson, Supra, p 717.

| Willie Wynn was convicted of assault

with intent to do great bodily harm less

than murder. James Moore was one of a

number of witnesses to the assault.

Moore, a friend of Wynn's, was not

endorsed prior to trial, but in response

to a defense motion the trial court

ordered Moore endorsed and produced at

trial. The Prosecution did not attempt

to serve Moore with a Subpoena and made

no other efforts to find hin. Moore did

-47a-

not appear at Wynn's trial. The trial

court found that this lack of effort did

not meet the due diligence requirement.

This Court affirmed.

In People v McIntosh, 389 Mich 82; 204

| NW2d 135 (1973), this Court applied the

due diligence standard to the

prosecution's efforts to locate a witness

whose preliminary examination testimony

was used against the defendants at trial.

Franklin McIntosh was prosecuted for

burglarizing a gas station. At

McIntosh's preliminary examination, Jerry

Wrenn, an employee at the station,

testified that he found McIntosh inside

the office. McIntosh told Wrenn that he

was returning the washroom key and left,

driving off with a companion. Wrenn

subsequently discovered that the bag

containing the day's receipts was missing

and telephoned the state police, who

~48a-

found the bag under the front seat of

McIntosh's automobile. Wrenn also

testifiued that when he entered the

office he noticed that the back of

McIntosh's sweater "was bunched as if

something bulky was being carried

underneath it," and that McIntosh, upon

leaving the station, leaned into the

front-seat area of his car where the

money was found.

Wrenn was apparently the only witness

who testified that McIntosh, and not his

companion, was the thief. The

prosecution learned after the preliminary

examination that Wrenn had left the state

and was either in a North Carolina

prison, or living on Webb Avenue in

Burlington, North Carolina, possibly

under the alias "Danny Hill." The

prosecution took the following steps to

locate Wrenn: It checked his local home

-49a-

and employer. It telephoned information

for Burlington and learned that no Wrenn

or Hill was listed on Webb Avenue. It

communicated with Burlington police and

asked them to check on Wrenn's

whereabouts. No reply was ever received.

The prosecution did not communicate with

North Carolina prison authorities.

Applying the decision of the United

“States Supreme Court in Barber v Page, n

12 supra, which this. Court read as

. establishing a due diligence standard,

} this Court held that the prosecution's

| efforts failed to rise to the level of

P due diligence. The prosecution should

3 have sought to locate Wrenn in Burlington

4 and should have communicated with North

4 Carolina prison authorities. "The fact

j that an attempt may prove unsuccessful

B does not justify the prosecution's

failure to make that attempt, Barber,

supra." McIntosh, supra, p 87.

23 Where a witness is beyond a court's

jurisdiction, use of the uniform act may

be required in all cases. See Barber v

Page, n 12 supra, p 723 (while the fact

that the witness was outside the court's

jurisdiction mey at one time have excused

the prosecution from producing hin,

because of developments like the uniform

act, “it is clear that at the present

time increased cooperation between the

States themselves and between the States

and the Federal Government" now requires

the prosecution to engage in diligent

efforts to produce witnesses who may be

beyond the court's jurisdiction); People

v Gaffney, 51 Mich App 526; 215 NW2d 587

(1974) (distinguishing People v _Serra,

301 Mich 124; 3 NW2d 35 [1942], and

holding that the prosecution's failure to

utilize the uniform act barred a finding

of good-faith diligence).

-5la-

Other states that have considered the

matter agree that use of the uniform act

is required in at least some

circumstances. See State v Kaufman, 304

So 2d 300, 303 (La, 1974); State v Kirk,

211 Kan 165, 170-171; 505 P2d 619 (1973).

In People v Serra, supra, this Court

said that the prosecution's failure to

produce at trial an indorsed res gestae

witness who had moved to Buffalo, New

ss York, did not bar a finding of due

diligence. There was no question of

using any prior testimony against the

defendant.

In People v Hunley, 313, Mich 688; 21

NW2d 923 (1946), the prosecution offered

the preliminary examination testimony of

a witness who had subsequently been

se oe pee Os eae’ ee Vins Ns Te al b+ ae) el ae bs

é. Wed ~ 4 cre Mt ie hg = ined eee, ten Bis vy rT ‘

lah ah Se CN NIE po eer ae PSOE a A ee TE pine, < z - a ee bess wali ot aie ae eee , ~ ig, Aa

PCA PTS he Pee vat eas cia ie SAC Ha Ly Pee gh, oe ny f

iene. 42 ALR Fe as ts yen eae Pe So aoe Sig eed eg Free a poe > i fi se ¢ poe

ESS eer Aaa Rl enat? ee MeN Ae Pa Mee 2c eRe Treat ‘ . rane Pe ; t 5 . .

inducted into the Army and sent to

Kentucky. ‘The witness was not vital to

2

the prosecution's case. This Court

-52a-

emphasized that the witness! "testimony

was corroborated in almost every detail

by other witnesses." Hunley, supra, p

692. This Court also observed that the

defendant did not in her brief assert

that the prosecution should have utilized

the uniform act, and that no showing had

been made that Kentucky had enacted a

reciprocal provision, which the act

requires before it can be utilized.

24 Troher was a member of the Forbidden

Wheels, but was not in the Clubhouse at

the time of the killings.

Wilfred David's testimony, adverted to

in the opinion to affirm, was not

adverted to in Dye's brief in this Court.

25 For a more complete factual summary,

see n 4.

-53a-

26 quoting Nickerson, supra, 386 Mass 61.

27 see also Farley v State, 717 P2d 111

(Okla Crim App, 1986) (evidence of

prearrest silence is more prejudicial

than probative of a defendant's guilt);

State v Sabah, 13 Ohio App 32 124, 136;

468 NE2d 718 (1982) (“Persuasively

ireasoned authority supports the

A RMD! 1 OL AE:

proposition that all pretrial silence is

usually so prejudicial in disproportion

to its probative worth that exclusion is

warranted in all but exceptional cases"

[emphasis original]); People v Conyers,

» 52 NY2d 454; 420 NE2d 933 (1981) (state

NE PE th a Dre

rules of evidence generally preclude the

use of a defendant's pretrial silence to

impeach his trial testimony).

28 See n 31.

-54a-

29 The opinion to affirm states:

"The prosecution did not make any

inquiry in its case in Chief regarding

Dye's prearrest failure to make a

statement, Dye's failure to make a

postarrest statement to the homicide

investigator, or his postarrest statement

to the arson investigators." Slip op, p

23.

During the prosecution's case in

chief, the following questions were put

to the responses elicited from Troher:

"9. To your knowledge, did there

come a time when Mr. Dye was arrested?

"A. Yes.

"Q. Before that arrest, had you

turned yourself in, so to speak, or had

= gone down to the police, let me use

t that way.

"A. I believe so.

"Q. Mr. Dye did not go down with

you to the police?

"A. No."

The prosecution, during its case in

chief, also elicited testimony from

Seidel, Dawson, and Stever that although

-55a-

Dye did not want them to consult an

attorney, they did so and made statements

to the police. The purpose of this

testimony was to emphasize Dye's

prearrest failure to make a statement to

the police even though he knew that

others were making such statements: "In

effect, the prosecutor asked the question

‘Is it natural to expect the defendant to

go to the police and report his version

of the offense knowing of the similar

inclination of the other witnesses?!"

Prosecutor's Brief on Appeal, p 28.

/30 the opinion to affirm would "hold that

he evidentiary errors alleged by the

a rt

efendant did not result in a miscarriage

(of justice." Slip Op, p 29.

The opinion refers to Doyle v Qhio,

' 426 US 610; 96 S ct 2240; 49 L Ed 2d 91

si Fel. ote : ee oe i

5 ae whe a > = ? ¥ Si. oe , o vores

bs 4 1k a CFS OP eS Be PP rN ¥ -

ea | WL TA 2 enh aBwh apt ei Te ae. GN Piet z

(1976), and states that the United States

‘€

-56a-

Supreme Court there "held that use of

postarrest, post-Miranda warning silence

for impeachment as ‘fundamentally unfair

and a deprivation of due process....!

id. at 618." Slip op, p 18.

The opinion further states:

"For the purpose of deciding the

remaining claims of error concerning the

testimony of David and Troher, we assume

arguendo under Vv , 426 Mich

23; 393 NW2d 346 (1986), that the trial

judge erred in permitting the prosecutor

to question these witnesses concerning

defendant's prearrest conduct." Slip op,

Pp 26.

The opinion to affirm does not state

that Dye's prearrest silence as

admissible under Collier.

ee. “A ie z ie i. Sr ade ae ee ee ae he tee ey Sint ogy ag

= - te oo iar eed “Wh teh! Qe is a i ee pl al Pee aa Te ae ener ‘ a Seg ED “re toe

oS oe lle : i Be oF Re Cane ae ae ts ee ee re eae ate Cod citar tier mart, Bio K re By Ph Doe Sr pe gh Te at eS Ao ;

oP Cag y ys Fe SS 1 Kot Ry Peis ege Diab ge ara RR eta Le Gace Seiad BE Desi eae aa i ois a ie he Renee its Q

#37a-

11/April 1987

STATE OF MICHIGAN

SUPREME COURT

)) PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv No. 77166

PAUL ALLEN DYE,

Defendant-Appellant.

" BEFORE THE ENTIRE BENCH

) ARCHER, J. (concurring),

The prosecution failed to show due

diligence in producing the principal res

gestae witnesses. The trial court abused

its discretion in its finding of due

diligence and in allowing the prosecution

to use the previous trial testimony of

-S58a- - ,

the principal witnesses. The defendant

was denied the Opportunity to confront

and cross-examine the witnesses. I

would, therefore, reverse the decisions

of the Court of Appeals and the trial

court and remand the case for a new

trial.

ys

The defendant, Paul Dye, was charged

with a double murder committed in August,

1982, at the headquarters of the

Forbidden Wheels Motorcycle Club.

Evidence adduced at trial established

that four members of the Forbidden

Wheels, Bruce Seidel, Stephen Stever,

James Dawson, and the defendant, were in

the building at the time two women were

killed inside the Club.

It was established that when the

murders occurred, the defendant and

~§9a-

Seidel were in the room with the victims

while Dawson and Stever were in an

upstairs room. During the trial, the

ldefendant and Seidel each accused the

other of shooting and killing the

victims. Seidel testified that after

witnessing the shootings, he went

upstairs and informed Stever and Dawson.

Stever and Dawson testified that Seidel

did tell them that the defendant had shot

two people but, because they were not eye

witnesses, they could not verify either

version of the shooting itself.

All four testified that they assisted

in cleaning up the room where the

shooting occurred. Seidel testified that

he and the defendant disposed of the

bodies by dumping them in a vacant lot.

q Although it was undisputed that all four

had participated in covering up the

crime, only the defendant was charged

_~60a-

with murder. Seidel, Stever, and Dawson

were not charged in exchange for their

testimony.

The jury was required to evaluate the

credibility of the witnesses on the basis

of their demeanor and the factual and

logical consistency of their testimony.

The jury failed to reach a unanimous

verdict. A mistrial was declared. It

was later learned that the jury voted

eleven to one in favor of acquittal.

The prosecution requested a second

trial of the defendant. Unlike the first

trial, the three principal witnesses were

not housed in a secure Place at a hidden

locaticn. No material witness bonds were

requested, nor were addresses required

from Stever, Dawson, or Seidel, although

it was known that all three of the men

planned to leave the state. On May 13,

1983, a new trial date of August 22,

1983, was set.

-6la-

Several weeks later, in June, 1983,

the police began sporadic, unsuccessful

attempt to locate Seidel. No attempt was

made to locate Dawson until July, and it

was not until August, approximately three

weeks before trial, that attempts were

made to serve Stever with a subpoena.

In attempting to locate Seidel, the

police contacted his mother in Mason

City, Iowa, who said he was working out

of town. There is no indication in the

record that they asked her to specify

where he was. In the case of Dawson, the

prosecutor had learned earlier that he

might seek to avoid further involvement

with the trial Yet he waited until

pafter he got further confirmation that

Dawson was going to avoid the second

trial and subsequently found Dawson's

phone disconnected when he contacted the

police for assistance in locating Dawson.

-62a-

The attempt to locate Stever was even

less diligent. The first attempt was an

inquiry of Dawson's mother. Dawson's

mother could not tell the police where

her son was, so it was highly unlikely

that she could help the police locate

Stever.

The prosecutor waited until seventeen

days before the trial to attempt to

locate the witnesses using the uniform

act to secure the attendance of witnesses

from without a state in criminal

proceedings. MCL 767.91 et seq.; MSA

28.1023(191) et seg.) The first time

1 The relevant sections of the

uniform act, MCL 767.91 et seq.; MSA

28.1023 (191) et seq., read as follows:

"(a) ‘Witness' includes a person

whose testimony is desired in any

proceeding or investigation by a grand

jury or in a criminal action, prosecution

Or proceeding.”™ MCL 767.91(a); MSA

28.1023(191) (a).

(Footnote Continued)

~63a-

(Footnote Continued)

"(1) If a person in a state, which

by law provides for commanding persons

within its borders to attend and testify

in criminal prosecutions, or grand jury

investigations commenced or about to

commence, in this state, is a material

witness in a prosecution pending in a

court of record in this state, or in a

grand jury investigation which has

commenced or is about to commence, a

judge of the court may issue a

certificate under the seal of the court

stating these facts and specifying the

number of days the witness will be

required. The certificate may include a

recommendation that the witness be taken

into immediate custody and delivered to

an officer of this state to assure his

attendance in this state. This

certificate shall be presented to a a ps

of a court of record in the county in

which the witness is found.

"(2) If the witness is summoned to

attend and testify in this state he shall

be tendered the sum of 10 cents for each

mile of the ordinary traveled route to

and from the court where the prosecution

or investigation is being held and $5.00

for each day that he is required to

travel and attend as a witness. A

witness who has appeared in accordance

with the provisions of the summons shall

not be required to remain within this

state longer than the period stated in

the certificate, unless otherwise ordered

by the court. If the witness, after

coming into the state, fails without good

cause to attend and testify as directed

in the summons, he shall be punished in

the manner provided for the punishment of

any witness who disobeys a summons issued

(Footnote continued)

i a “ SP res... & Se ae ee ee Ae ae,

-64a-

that the prosecutor indicated that there

were some witnesses that had yet to be

served with subpoenaes was at a hearing

on the defense counsel's motion to

adjourn. The defense counsel was newly

engaged, however, and therefore

unfamiliar with the importance of the

missing witnesses. It was not until

August 16, 1983, six days before the

trial, that the prosecutor sent pictures

of the three men to the respective states

in which they were being sought. The

prosecutor did not inform the defense

WwW were unava b

e trial was t e °

The prosecution sought to introduce

transcripts of their prior testimony to

be read into evidence under MCL 768.26;

MSA 28.1049 and MRE 804(b)(1).2

-65a-

(Footnote Continued)

from a court of record in this state."

MCL 767.93; MSA 28.1023(193).

"Sections 91 to 95 constitute the

uniform act to secure the attendance of

witnesses from without a state in

criminal proceedings and shall be so

interpreted and construed as to

effectuate their general purposes to make

uniform the law of the states which enact

them." MCL 767.95; MSA 28.1023 (195).

2 MRE 804(b) (1) states:

"(b) Hearsay exceptions. The

following are not excluded by the hearsay

rule if the declarant is unavailable as a

witness:

"(1) Former testimony. Testimony

given as a witness at another hearing of

the same or a different proceeding, or in

a deposition taken in compliance with law

in the course of the same or another

proceeding, if the party against whom the

testimony is now offered, or, in a civil

action or proceeding, a predecessor in

interest, had an opportunity and similar

motive to develop the testimony by

direct, cross, or redirect examination."

(Footnote Continued)

-66a-

A hearing was conducted to determine

whether due diligence was exercised in

attempts to locate these crucial

witnesses for the second trial. The

trial court ruled that the prosecution

exercised due diligence and permitted the

use of the trial transcript from the

first trial.

The defendant was found guilty as

charged. He appealed in the Court of

Appeals, which affirmed on the basis of

defense counsel's failure to seek an

adjournment.

It

The statute under which the prior

testimony was admitted into evidence, MCL

768.26; MSA 28.1049, states:

-67a-

en eee taken at an

examination, preliminary hearing, or

at a former trial of the case, or

taken by deposition at the instance

of the defendant, may be used by the

prosecution whenever the witness

giving such testimony can not, for

any reason, be produced at the

trial, or whenever the witness has,

since giving such testimony become

insane or otherwise mentally

incapacitated to testify."

Use of prior recorded testimony in

place of live testimony of endorsed res

gestae witnesses is subject to the

defendant's fundamental right to confront

witnesses under the Michigan Constitution

as well as the Constitution of the United

States. Barber v Page, 390 US 719; 88 S

Ct 1318; 20 L Ed 2d 255 (1968); People v

McIntosh, 389 Mich 82; 204 NW2d 155

(1973). In Barber, the United States

Supreme Court held that this

confrontation right requires the

prosecution to produce such endorsed

witnesses and that an exception to this

-68a-

requirement is not available "unless the

prosecutorial authorities have made a

good-faith effort to obtain [the

witness'] presence at trial." Barber,

supra at 725.

Justice Marshall, writing for the

majority in Barber at 721, stated:

"Many years ago this [United

States Supreme] Court stated that

'rtjhe primary object of the

[Confrontation Clause of the Sixth

Amendment]. . . was to prevent

depositions or ex parte affidavits .

. « being used against the prisoner

in lieu of a personal examination

and cross-examination of the witness

in which the accused has an

opportunity, not only of testing the

recollection and sifting the

conscience of the witness, but of

compelling him to stand face to face

with the | Beene in order that they may

look at him, and judge by his

demeanor upon the stand and the

manner in which he gives his

testimony whether he is worthy of

belief.' Mattox v United States,

156 US 237, 242-243 [15 S Ct 337; 39

L Ed 409] (1895). More recently, in

holding the Sixth Amendment right of

confrontation applicable to the

States through the Fourteenth

Amendment, this Court said, ‘There

are few subjects, perhaps, upon

‘

-69a-

which this [United States Supreme] Court

and other courts have been more nearly

unanimous than in their expressions of

belief that the right of confrontation

and cross-examination is an essential and

fundamental requirement for the kind of

fair trial which is this country's

constitutional goal.' Pointer v Texas,

380 US 400, 405 (85 S Ct 1065; 13 L Ed 2d

923] (1965)."

Michigan courts have, until now, fully

embraced this doctrine and have therefore

required that prosecutors exercise '‘'due

diligence" in attempts to secure the

presence of witnesses before prior

testimony is admissible. In People v

McIntosh, supra at 86, this Court cited

Barber, stating that "the prosecution

must show due diligence in their efforts

to produce [endorsed res gestae)

witnesses." Indeed, even prior to its

recognition that the Sixth Amendment was

incorporated intosthe Fourteenth

Amendment and thus applicable to the

states, this Court had held that the

prosecution was required to exercise due

-70a-

diligence to produce material witnesses

at trial. See, e.g., People v Zabijak,

285 Mich 164; 280 NW 149 (1938); People v

Vick, 235 Mich 475; 209 NW 584 (1926).

Iii.

The diligence due in a given case

necessarily varies with the

circumstances. Law enforcement

authorities must not be unduly burdened

with a duty to locate witnesses whose

testimony would merely relate to

preliminary or unimportant matters. At

the other extreme, however, are cases

where eyewitness testimony relating to an

ultimate fact such as the identity of the

perpetrator of a felony must be tested in

the presence of the jury for credibility

and comsistency in order to satisfy the

requirements of due process.

In the instant matter, it is obvious

-7la-

that the first mistrial resulted from the

jury's inability to give credence to the

testimony of Seidel, Stever, and Dawson.

The inability of the jury at the second

trial to view the demeanor of these

witnesses therefore greatly reduced the

validity and reliability of its

evaluation of the witnesses' credibility.

In fact, over the objection of the

defense counsel, the individuals reading

the prior testimony in the second trial

were allowed to embellish the written

words with dramatic effect.3 Asa

3The following colloquy took piace

between the defense counsel and the

court:

"Mr. Morrow: Just one thing I'd

like to put on the record. As the

witness was testifying, I noticed

that there were certain hand motions

or whatever and I don't know,

necessarily, if they were

appropriate or if they had any

prejudicial effect on the jury.

Making those --I don't think he was

present at the first trial--so I

don't know if they could actually

(Footnote Continued)

—- -72a-

be deemed accurate. I'd just like

to put that on the evidence for

possible prejudice.

"(The Court] See you at 3 o'clock.

"(Whereupon at 4:45 p.m., the jury was

excused and the following proceedings

held outside the presence of the jury.)

"The Court: Per discussion in

chambers, I think there is an

objection or two, if not more, to

what the jury just heard or did not

hear, Mr. Morrow?

"Mr. Morrow: Thank you, your Honor.

In terms--let me just talk generally

about the reading of witness of

Steve Stevers. It was my impression

this was going to be a neutral

reading. I'd just have to put on

the record that the witness that

read the part of Stephen Stevers was

into dramatic art. I mean,

certainly his facial expressions,

his attempts to add inflections when

there might have not been any, I

just don't think it was any way

neutral, and as a result, I think it

was very prejudicial to Mr. Dye. I

would ask that the ...

"The Court: The record is also

clear there was no objection during

the reading.

"Mr. Morrow: It was my

understanding that we were going to

add the objections later. I don't

know if I should.

(Footnote Continued)

-73a-

result, the defendant's right to a fair

trial was greatly hampered, thus

violating his right to due process of

law.

(Footnote Continued)

"The Court: I think that's [sic] if

that's a valid objections [sic].

That's certainly the kind of

objection you would clearly bring up

while it was going on.

e orrow: I'd like to ask the

Court, then, for the next person

that is going to be the reader of

Bruce Seidel, that if there's any

way possible that the voice just be

heard by the jury, as opposed to

facial expressions, because I'm sure

that that's going to have me jumping

up, now that I know that that's the

way the Court wishes it. It would

have me jumping up all the time.

"The Court: No. I would state that

Mr. Bernacki read with perhaps more

inflection in his voice than did Mr.

Hutting, and if counsel had

approached the bench we would have

informed Mr. Bernacki to simply read

it in a natural manner. Counsel did

not choose to do so and, thus, the

Court was not going to take it upon

itself to tell Mr. Bernacki how to

read."

-74a-

This due process violation cannot be

excused on the basis of any exception to

the defendant's right to confront

witnesses. Although the defense counsel

apparently conceded the good faith of the

prosecutor, it is clear that the efforts

of the police and the prosecutor to

locate the witnesses fell short of the

due diligence requirement recognized in

People v McIntosh, supra.

The failure to inquire as to the

specific whereabouts of Seidel precludes

reliance on contacts with Seidel's mother

as evidence of due diligence. Similarly,

the sporadic attempts to locate Dawson

and Stever were clearly less than

adequate. This would seem to be the

"“Cursory or pretextual investigation"

referred to by the majority, slip op, p

5, n 2, as inadequate evidence of due

diligence. The uniform act to secure the

-75a-

attendance of witnesses from without a

state in criminal proceedings may not be

relied on to establish due diligence.

This statute, originally promulgated by

the National Conference of Commissioners

on Uniform State Laws, was designed

merely to codify a procedure whereby each

state would have a standard for honoring

a request by another state for assistance

in securing a witness for a criminal

trial. There is no indication that this

statute was intended to set a standard

for due diligence. Such an intent would

surely mandate the inclusion of a time

frame for use of the statute to insure

that authorities in a state receiving a

request would have adequate time to

locate the witness sought. In the

instant case, the prosecutor waited until

seventeen days before trial to invoke the

act. It was not until August 16, six

-76a- -

days before the trial, that the

prosecutor sent pictures of the three men

to the respective states in which they

were being sought.

Finally, the prosecutor's delay in

informing the defense counsel of the

absence of the witnesses resulted in an

unfair eleventh-hour suprise. As early

as March, 1983 there were indications

that the witnesses might be unavailable

for a second trial. Surely it was clear

by August 5, when the uniform witness act

packets were sent, that the witnesses

would be difficult to locate. The Court

of Appeals affirmance was based in part

on defense counsel's failure to seek an

adjournment. However, the newly engaged

defense counsel's unfamiliarity with the

case precluded him from recognizing the

importance of the missing witnesses. In

any event, it may have appeared to be

snl eeeetieetenrevicteieneiaeeeaememeemmietetnsecelmeereal ete conse acme eee es

-77a-

futile to request an adjournment in that

the trial judge had refused an earlier

request to adjourn so that the new

defense counsel could adequately prepare

for trial.

IV

Barber v Page and People v McIntosh,

Supra, recognized that a defendant's

Sixth Amendment confrontation right

cannot be overcome without a clear

showing that good-faith, diligent efforts

were made to produce material witnesses.

In this case, due diligence has not been

shown by the prosecution; therefore, the

trial court abused its discretion. I

would reverse the decisions of the Court

of Appeals and the trial court and remand

the case for a new trial.

-78a-

V

I do not agree with the analysis of

the opinion for affirmance and the result

in the second issue. I disagree with the

application of Jenkins v Anderson, 447 US

231; 100 S Ct 2124; 65 L Ed 2d 86 (1980),

and the extension of People v Collier,

426 Mich 23; 390 NW2d 346 (1986). See

Collier, pp 40-45. I do not address this

disagreement with specificity because of

my finding of a lack of due diligence

which would reverse the decisions of the

Court of Appeals and trial court

resulting in a remand for a new trial.

onclusion

I would reverse the decisions of the

Court of Appeals and the trial court and

remand the case for a new trial.

-79a=-

11/April 1987

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv No. 77166

PAUL ALLEN DYE,

Defendant-Appellant.

BRICKLEY, J. (concurring).

I concur in parts I and II of Justice

Levin's opinion and in part III of

Justice Boyle's opinion. Accordingly,

because of the violation of the due

diligence standard, I concur with the

result of Justice Levin's opinion

reversing the conviction.

s/ James H. Brickley

-80a-

11/April 1987

STATE OF MICIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv No. 77166

PAUL ALLEN DYE,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

BOYLE, J. (dissenting).

We are asked in this case to consider

two issues: Whether the trial court

abused its discretion in finding that the

Wayne County Prosecutor exercised due

diligence in attempting to locate three

witnesses for the defendant's retrial,

-8la-

and whether evidence regarding the

defendant's prearrest silence was

properly admitted. We would affirm the

decision of the Court of Appeals.

I. FACTS

Defendant, Paul Dye, was charged with

two counts of first-degree murder in the

killing of two women whose bodies, with

gunshot wounds to the head, were found by

police officers ina vacant lot.

Evidence indicated that the women had

been killed at the headquarters of the

Forbidden Wheels Motorcycle Club and that

they had been shot at close range.

At trial, three neubers of the

motorcycle club testified that the

defendant, who at that time was president

ef the Forbidden Wheels, had murdered the

women and had then enlisted their help in

cleaning up after the killings and in

-82a-

covering up the crime. One of the

witnesses, Bruce Seidel, asserted that he

had been present at the time of the

murder and had watched Dye shoot the

women. Seidel testified that the women

entered the motorcycle club headquarters

at approximately 2:30 a.m. and began

drinking. Some time later, according to

Seidel,. one of the women and Dye began

discussing whether the woman would

perform oral sex on Dye. Seidel further

testified that after some minutes of

discussion and argument, the defendant

stated, "why bitch you will," and,

pulling a gun from his waistband, held it

against her forehead and fired, at which

point "{hjyer head exploded."

Additionally, Seidel asserted that a few

seconds later, when the other woman

cried, "I don't believe what's

happening," the defendant responded, "I

do," and also shot her through the head.

-83a-

At that point, according to Seidel, Dye

turned and stared at him for a short

time, and then Seidel indicated that he

would let two other members Stephen

Stever and James Dawson, who were

sleeping upstairs know what had happened.

Stever and Dawson also testified,

corroborating Seidel's story from the

point that he appeared upstairs to

announce that "Rocky! just shot two women

downstairs and he believed they were

dead." All agreed that they went

downstairs and helped to clean up.

Seidel testified that he helped Dye

dispose of the bodies, which were dumped

in a vacant lot, and that he had secreted

the murder weapon in the club house.

Afterwards, the four gathered at Stever's

house. Afterwards, the four gathered at

Stever's house. Dawson testified that

luRocky" was Dye's club nickname.

Sop Og

eid Sor 9 i

ee

-84a-

Dye indicated to him that ‘he shot the

women because they were "a couple of fat

cunts" and "they were fucking with me."

Stever indicated that he saw ‘Dye holding

the gun when he came downstairs and that

later Dye "mentioned the fact that after

he took out the first one, he had to take

the second one and he looked over at

Bruce and thought about shooting him too.

Then, he would have to come upstairs and

shoot both of us." All three testified

that Dye initially urged everyone to keep

quiet and stick to their alibis. Dawson

and Seidel also testified that on the day

after the shootings they had another

conversation in which they told the

defendant they should seek the advice of

an attorney, and defendant told them not

to talk to a lawyer. It was claimed by

defendant in his direct testimony at

trial, however, that he, himself, had

-85a-

contacted a lawyer the day after the

homicides and that he had arranged for a

meeting of the club members with the

attorney, and he and the attorney had

agreed that "he was going to set up a

meeting between the homicide detectives,

in charge of the case and each and each

[sic] and every club member to make a

statement tc the homicide detectives."

Dawson, Stever, Seidel, and two other

witnesses, Richard Troher and Wilfred

David, did arrange through an attorney to

give statements to the police. A

decision was made not to charge Seidel,

Dawson, or Stever, who were kept in

"protective custody"? for four days

2They were kept at a Detroit area

motel under assumed names where their

meals and room receipts were paid by the

prosecution. While they were not allowed

to leave until after they testified, they

were not under arrest as material

witnesses pursuant to MCL 767.35; MSA

28.975.

-86a-

before trial.3

At trial, the defendant took the stand

and testified that it was Seidel who

committed the killing. According to the

defendant, he, Seidel, Dawson, and Stever

had “agreed to conceal the whole

incident." The defendant had not

previously made any statement to this

effect.

The jury was unable to reach a verdict

at the first trial, and the judge

declared a mistrial. On May 13, 1983, a

new trial date of August 22, 1983, was

set. On June 2, 1983, according to the

police sergeant in charge of the case,

the police and assistant prosecutor began

efforts to locate Seidel, Stever, and

Dawson. By the time of the trial, these

3upon the conclusion of their

testimony, they were given airfare to

their previous places of residence

outside Michigan.

-87a-

efforts had proven fruitless and a motion

was made to allow the first trial

testimony of the three witnesses to be

read into evidence under MCL 768.26; MSA

28.1049 and MRE 804(b) (1).

The trial judge conducted a hearing to

determine whether the prosecutor had

exercised "due diligence" in attempting

to locate and produce the witnesses as

required for the admission of the prior

testimony. The trial court found in the

prosecutor's favor and allowed the

testimony of Seidel, Dawson, and Stever

to be read at trial. The jury convicted

Dye of two counts of first-degree murder

and two counts of possession of a firearm

during the commission of a felony. Dye

was sentenced to life imprisonment. The

Court of Appeals affirmed the conviction,

and we granted leave to appeal.

-88a-

- II. DUE DILIGENCE

The Supreme Court of the United States

in Barber v Page, 390 US 719, 725; 88 S

Ct 1318; 20 L Ed 2d 255 (1968), held that

a witness is "unavailable" for the

purpose of an exception to the

confrontation requirement if "the

prosecutorial authorities have made a

good-faith effort to obtain his presence

at trial."4 In Michigan, MCL 768.26; MSA

28.1049 provides:

4Justice Levin relies upon that

Court's earlier decision in Motes v

United States, 178 US 458, 471, 473-474;

20 S Ct 993; 44 L Ed 1150 (1900), which

held that the defendant was denied his

right of confrontation under the Sixth

Amendment when the failure to produce a

key witness for the prosecution was due

to the negligence of a governmental

agent. The Court opined:

"(Tjhe admission in evidence of

Taylor's statement or deposition taken at

the examining trial was in violation of

the constitutional right of the

defendants to be confronted with the

witnesses against then. It did not

appear that Taylor was absent from the

(Footnote continued)

-89a-

(Footnote continued)

trial by the suggestion, procurement or

act of the accused. On the contrary, his

absence was manifestly due to the

negligence of the,officers of the

Government. Taylor was a witness for the

prosecution. He had been committed to

jail without bail. We have seen that the

official agent of the United States in

violation of law took him from jail after

the trial of this case commenced, and,

strangely enough, placed him in charge

not of an officer but of another witness

for the Government with instructions to

the latter to allow him to stay at a

hotel at night with his family. And on

the very day when Taylor was called as a

witness, and within an hour of being

called, he was in the corridor of the

court house. When called to testify he

did not appear.

kkk

"In the present case there was not

the slightest ground in the evidence to

suppose that Taylor had absented himself

from the trial at the instance, by the

procurement or with the assent of either

of the accused. Nor (if that were

material) did his disappearance occur so

long prior to his being called as a

witness as to justify the conclusion that

he had gone out of the State and was

permanently beyond the jurisdiction of

the court. His absence, as already said,

was plainly to be attributed to the

negligence of the prosecution."

In this case the facts do not

suggest governmental conduct even

approaching that of Motes. There is

(Footnote Continued)

-90a-

Testimony taken at an examination,

preliminary hearing, or at a former trial

of the case, or taken by deposition at

the instance of the defendant, may be

used by the prosecution whenever the

witness giving such testimony, can not,

for any reason, be produced at the trial,

or whenever the witness has, since giving

such testimony become insane or otherwise

mentally incapacitated to testify."

This Court in People v McIntosh, 389

Mich 82, 87; 204 NW2d 135 -+(1973), noted

(Footnote Continued)

nothing of record to demonstrate that the

absence of Dawson, Stever, and Seidel

subsequent to the first trial was the

result of any illegal police activity, or

of the prosecutor's negligence, uniess it

is suggested that the prosecutor had an

obligation to detain these witnesses in

the state until completion of the second

trial. Consequently, Motes is

distinguishable and the inquiry remains

whether the reviewing court can find a

"good faith" effort on the part of the

state to produce the witnesses at trial.

-9la-

that "the statute must be interpreted in

a manner consistent with prevailing

constitutional authority." The “good

faith" requirement of Barber has

consistently been viewed in Michigan as

mandating that prosecutors exercise "due

diligence" in their attempts to produce

witnesses before prior testimony is

admissible. McIntosh, supra; People v

Starr, 89 Mich App 342; 280 NW2d 519

(1979) .5

As Judge Riley noted in Starr, p 345,

case law in this state makes it clear

that

"(t]he determination of due diligence is

a matter for the trial court, and that

determination will not be overturned on

appeal unless a clear abuse of discretion

is shown."

SThe majority relies exclusively on

the "good faith" standard of Barber, and

does not find an independent basis for

their conclusion under Michigan law.

Michigan v Long, 463 US 1032; 103 S Ct

3469; 77 L Ed 2d 1201 (1983).

-92a-

It is also clear, as defendant points out

in his brief to this Court, that "[w])hat

efforts will actually constitute due

diligence cannot be set out in a hard and

fast list, given the many variables

possible in a given case."

The opinion for reversal characterizes

the prosecutor's efforts as tardy and

incomplete. This conclusion is based in

part on the observation "that [the

witnesses] had been difficult to locate

for the first trial," and that during the

two-month period between the mistrial and

setting of the trial date "the

prosecution made no effort to relocate

[them] even though [he] knew [they] were

needed, and they had expressed an

intention to leave the state ...."

In point of fact, there is no record

basis for the statement that the

witnesses had been difficult to find for

-93a-

the first trial. The record does

establish that the prosecution knew for

over a year that Seidel resided in Mason

City, Iowa, with his mother, that the

prosecutor had actually had contact with

Dawson “a number" of times between the

first trial and the setting of the second

trial, and that the prosecutor had

addresses for all three that had

presumably led to their production at the

first trial. Thus there is no basis for

the suggestion that the prosecutor had a

reason to try to locate these witnesses

during the two-month period prior to the

setting of the trial date,, much less a

reason to “relocate” them before he knew

when they would be needed for retrial.

Indeed, what the record suggests is

that it was Seidel's failure to respond

to messages left with his mother at his

known residence prior to July 7 and the

-94a-

prosecutor's learning on July 12 that

Dawson's local number was disconnected,

that triggered the suspicion that the

witnesses might be difficult to locate.

Thus, contrary to the suggestion that the

two-month delay in prosecution efforts

(from March 17 to May 13) is somehow

related to the good-faith efforts of the

prosecutor, the relevant inquiry is the

prosecutor's efforts made during the

period between the setting of the trial

date and the date of trial. I can find

no basis in this record for concluding as

that the trial judge abused his

discretion in finding that these efforts

were neither "tardy" nor "incomplete."

The majority's conclusion that the

effort was “tardy” is further refuted by

the fact that efforts to locate Seidel

began within three weeks of the setting

of a new trial date and more than two and

one half months before that date.

EE

-95a-

Moreover, the conclusion that the efforts

were "incomplete" misfocuses the

constitutional test of whether evidence

that otherwise satisfies the

Confrontation Clause is admissible in a

subsequent proceeding. The constitution

does not require that the prosecutor

undertake every conceivable "'affirmative

measure[(j];' [that] may well have produced

the witnesses" in order to satisfy

constitutional scrutiny. The Supreme

Court has made clear that the "law does

not require the doing of a futile act"

when testing the diligence of the state's

effort to secure a missing witness. Ohio

v Roberts, 448 US 56, 74; 100 S Ct 2531;

65 L Ed 2d 597 (1980). The test is

whether the proponent of the evidence

made good-faith efforts to procure the

testimony, not whether more stringent

efforts would have produced it. Barber v

-96a-

Page, supra. "The lengths to which the

prosecution must go to produce a witness

--.- is a question of reasonableness."

California v Green, 399 US 149, 189, n

22; 90 S Ct 1930; 26 L Ed 2d 489 (1970)

(citing Barber).

Thus, we must view this case on its

own merits to determine if the finding of

"due diligence" by the trial court

"tevidences ... not the exercise of

judgment but defiance thereof ....'"

People v Talley, 410 Mich 378, 387; 301

NW2d 809 (1981). On the facts of this

case, we cannot so find.

The evidence of "due diligence"

presented to the trial court details the

prosecutor's efforts to produce Stever,

Dawson, and Seidel. According to

Sergeant Kuhnlein, who was in charge of

the case, the attempt to locate Bruce

-97a-

Seidel began on June 2, 1983,© when a

lein message was sent to a police officer

in Mason City, Iowa, where Seidel was

known to frequently stay with his mother

and where he was living during the first

6Defendant claims that a finding of

due diligence is precluded in this case

because the prosecutor's office did not

begin its efforts to locate the three

witnesses in adequate time to assure

their production at trial. The timing of

the efforts is only one of the factors

which should be considered in the

totality of the circumstances of each

case. It is conceivable, for example,

‘that a search begun six months before

trial, if nothing other than a cursory or

pretextual investigation is done, could

be inadequate, while a thorough search,

commenced a few weeks before trial, could

adequately evidence due diligence. In

this instance the record indicates that

the new trial date of August 22, 1983,

was set on May 13, 1983, and the

prosecution began efforts to reach

Seidel, the only eyewitness, and

therefore the most crucial witness for

the state, on June 2, 1983. There is,

moreover, no basis for the conclusion

that it had clearly been established by

July 7 that Seidel was missing. His

mother's reponses indicated only that he

was working midnights out of town.

a ig > -98a-

trial. This officer went to the home and

talked to Seidel's mother who told him

that her son was working out of town, but

that she would give him the message to

call Sergeant Kuhnlein. After several

unsuccessful attempts to reach Mrs.

Seidel by phone, on June 22, 1983,

another Detroit police officer completed

a call to Mrs. Seidel at 3:00 a.m. She

again informed the officer that her son

was out of town working, but that she

would tell Seidel when he returned. When

‘Seidel did not call, the prosecuting

attorney in Mason City, Iowa, was called

and a subpoena sent to enlist his help in

locating the witness. On August 5,

pursuant to the interstate witness act,

MCL 767.91 et seg.? MSA 28.1023 (191) et

seq., the Wayne County Prosecutor's

Office sent a package containing the

following information to the Mason City

-99a-

County Attorney's office: a certificate

to secure the attendance of a witness

from without the State of Michigan in a

criminal proceeding, an affidavit for

certificate, a certificate of the judge

of Recorder's Court, and a certificate of

the court of the clerk for attendance.

On August ll, an arrest warrant was

issued for Seidel. His girlfriend and

his mother were again contacted, as was a

biker's establishment. A picture was

sent on August 16. Follow-up calls were

made to determine if the packets had been

received and to check on the progress.

With regard to James Dawson, the

assistant prosecutor testified that he

had been in telephone contact with the

witness until late June or early July.

Dawson, in communication with the

prosecutor's office because of reports

that the defendant as being allowed out

-100a-

on bail between the first and second

trials, had been informed of the trial

date.’ Sergeant Kuhnlein reported

that on July 6, 1983, he contacted

Dawson's mother who stated that she did

not know where her son was. On July 12,

1983, the prosecutor attempted to call

Dawson, but found that the telephone

service had been disconnected. On August

1, 1983, Sergeant Kuhnlein went to

Dawson's last known local address, but

found that the home had been sold and

that the new owner did not know of the

witness's whereabouts. Sergeant Kuhnlein

then contacted the post office and

received a tentative new address in San

Bernadino County, California. On August

5, 1983, an out-of-state witness packet

was mailed to the San Bernadino

7pefendant was released on bond on June

Lv, aweee

-i10la~

Prosecutor's Office, followed by a

picture on August 16, 1983. In the

meantime, follow-up calls determined that

at least two attempts had been made to

serve Dawson at the address, but the San

Bernadino Prosecutor's Office had been

informed that he was not there at that

time. The assistant prosecutor indicated

that he would appreciate any further

investigation they could do and that any

information obtained before August 26,

1983 (the trial was expected to last at

least four days) should be passed on.

Sergeant Kuhnlein, in his attempt to

locate Stever, first asked Dawson's

mother for information and then attempted

to serve a subpoena at his local address

on August 1, 1983. A tenant who was

living at the address informed him that

the house was in foreclosure and he had

no idea as to the whereabouts of Stephen

-102a-

Stever. The tenant did not pay rent to

Stever, but had previously given it to

someone who came by to pick it up.

Attempts were made to find a forwarding

address for Stever at the post office,

but none was on file. On August 5, 1983,

a packet of materials in conformity with

the interstate witness act was sent to

Overton County, Tennessee, where Stever

was known to occasionally stay, although

no street address was known. A picture

was sent on August 16, 1983. Follow-up

calls determined that the Overton County

officials had been unable to locate

Stever.

In addition to these efforts, Sergeant

Kuhnlein checked all of the jails,

morgues, and hospitals in Wayne, Oakland,

and Macomb Counties and contacted the

Michigan Employment Security Commission

and the Department of Social Services.

-103a-

The utility companies were also called

for any forwarding addresses, but none

were known.

The lead opinion suggests that the

prosecution should have taken further

efforts to secure the missing witnesses

such as sending its own investigator out

of state to seek them out, urging the

out-of-state authorities to exert further

efforts, or suggesting that locales

frequented by bikers be checked. This

observation ignores the fact that the

test for admissibility under the

Confrontation Clause is the good-faith

effort of the prosecution; not whether

extraordinary efforts might have been

made.8 Local police obviously have

8Tt also ignores the fact that a

biker's locale was checked in Mason City

and that the prosecutor testified that he

spoke with the state's attorneys in all

three jurisdictions and asked them "to

make whatever efforts they could."

-104a-

no authority to direct the efforts of the

foreign jurisdiction in locating a

missing witness, and local resources

would just as obviously not permit

sending local police out of state in

every similar instance. It is clear that

what Barber v Page requires is a

good-faith effort to notify witnesses and

secure their attendance, not an all-out

manhunt. Thus, as the Court observed in

finding compliance with the duty of good

faith in Ohio v Roberts, supra, p 75

"‘Ttjo be sure, the prosecutor might have

tried to locate by telephone the San

Francisco social worker ... and might

have undertaken other steps in an effort

to find [the witness]. One, in

hindsight, may always think of other

things."

It is only in hindsight, and by the

suggestion of “other things." that the

-105a-

majority concludes that the trial court

abused its discretion in finding due

diligence on the part of the

prosecution.% It is obvious in

retrospect that the witnesses were

9Justice Levin relies upon the

decision of the Illinois Court of Appeals

in People v Payne for the proposition

that good faith was lacking in this

instance. The basis of the Court's

decision in Payne was:

"The responsibility for the conduct

of the People's case rests with the

State's Attorney, and not with the

police. It is his duty to supervise

and coordinate the efforts to locate

the witness known to be missing.

This record discloses an absence of

any such supervision or

coordination." People v Payne, 30

Ill App 3d 624, 628; ‘332 NE2d 745

(1975).

The record in Payne indicated that the

prosecutor had done nothing to assist in

locating the missing witness and had left

that task to the indiscriminate efforts

of a single police office.

Unlike the circumstances in the instant

case, the prosecutor had made no effort

to locate this witness, and it was this

fact, the complete failure of the

(Footnote Continued)

-106a-

avoiding appearance. The prosecutor

attempted to locate Seidel, Stever, and

Dawson through their known local

addresses, and sent packets in conformity

with the interstate witness act for all

three witnesses to the only other

locations at which the evidence indicated

they might be found. Follow-up calls

were also made to try and secure the

cooperation of the out-of-state

prosecutors. Under these circumstances,

"due diligence” could reasonably be found

in this case, and we would affirm the

decision of the trial court in this

regard,10

(Footnote Continued)

prosecutor to supervise and coordinate

the search effort, which lead the

Illinois Court of Appeals to conclude

that “good faith" on the part of the

state was lacking in that instance.

l1O0pefendant asserts, without

presentation of any factual evidence,

(Footnote Continued)

-107a-

III. PREARREST SILENCE

Defendant also contends that several

questions regarding his prearrest conduct

denied him his rights under the Fifth

Amendment of the United States

Constitution and article 1, Section 17 of

the Michigan Constitution. Specifically,

defendant contends that prosecutorial

questioning of witnesses Richard Troher

(Footnote Continued)

that the assistant prosecutor should not

be found to have exercised due diligence

in this case because, "the prosecution

had contributed to the absence of at

least one or more of the witnesses."

"“(Ajppellant [may not] simply ...

announce a position or assert an error

and then leave it up to the [appellate]

Court to discover and rationalize the

basis for [appellant's] claims ...."

v Detroit, 355 Mich 182, 203; 94

NW2d 388 (1959). In this regard, we also

note that the appellee contends that it

was the release of the defendant on bail

pending the second trial which caused the

witnesses to disappear. All three had

previously expressed fear of defendant.

-108a-

and Wilfred David concerning the fact

that Mr. Dye had not told them anything

about the incident, and testimony from

witnesses Dawson, Stever, Seidel, and

Troher that defendant had not accused

someone else of the crime was an

erroneous comment on defendant's

silence.11 Defendant also contends

11 After Collier it is apparently

incorrect to phrase the alleged error as

comment on silence. Rather, the inquiry

is evidentiary and asks whether the

evidence sought to be introduced is

relevant, that is whether it makes "the

existence of any fact that is of

consequence to the determination of the

action more probable or less probable

than it would be without the evidence."

MRE 401. See Collier, supra, p 36.

Thus, prearrest silence is not to be

presumed an exercise of the Fifth

Amendment. Where prearrest silence is

relevant, as for example where a

defendant has made an admission by

adoption or manifestation of belief in

the statements of others, MRE

801(d)(2)(B), admission of the evidence

places no more burden on the defendant's

decision to testify than does any other

part of the prosecution's proofs. In

this case, the defendant, having taken

(Footnote Continued)

-109a-

that testimony of Seidel, David, and

Troher that defendant did not go with

them to see an attorney and a statement

by Troher that Mr. Dye did not go with

them when he and David gave a statement

to the police was improperly admitted.

To properly understand defendant's

claim of errer it is helpful to

distinguish between prearrest and

postarrest conduct. At both trials the

defendant suggested that he had intended

to contact the police prior to his

arrest. He also testified on direct

(Footnote Continued)

the stand in the first trial and

testified concerning his pre- and

postarrest conduct, waived any Fifth

Amendment claim with regard to use of his

prior testimony at the second trial.

Absent a showing that prearrest silence

constituted an exercise of his

constitutional rights, the preliminary

admissibility of this evidence is to be

resolved at trial by use of the

evidentiary rules adopted in Collier.

D o- Mi - . ‘ ee

-110a-

examination by his own counsel that after

his arrest he had given a statement to

the arson investigator that Stever and

Dawson had committed the fire bombing.

He added in response to a further

question by his counsel in direct

examination, that he had not made a

post-arrest statement regarding the

homicides on the advice of his attorney.

Over counsel's objection,, on

cross~-examination the defendant was asked

why, if he was only a material witness in

a homicide, he had given a statement

accusing Stever and Dawson, but had

declined to give a statement regarding

the homicide. he indicated that on the

advice of counsel he declined to discuss

the events surrounding the homicide, but

though his counsel had advised against

it, he had decided to give the statement

to the arson investigator.

-llla-

Thus, analysis of defendant's argument

must begin by identifying two discrete

categories of claims, questioning by the

prosecution regarding prearrest conduct

and questions regarding postarrest

silence which were initially brought out

by defendant himself.

Error in the context of defendant's

prearrest conduct could, under Collier,

only be predicated on the basis of

relevancy. By contrast, error in the

prosecutor's examination regarding

postarrest silence, if any, would be

predicated upon the rule of Doyle v Ohio,

426 US 6107 96 S Ct 2240; 49 L Ed 2d 91

(1976), where the Court held that use of

postarrest, post-Miranda warning silence

for impeachment was "fundamentally unfair

and a deprivation of due process...." Id.

at 618.

-ll2a-

As to defendant's postarrest silence,

that line of questioning as initiated by

defense counsel on direct examination of

the defendant. As noted by the trial

court and the Court of Appeals, once the

defendant had testified regarding his

decision to speak with the arson

investigators, the door had been opened

to further inquiry on cross-examination

as to postarrest conduct inconsistent

with defendant's other postarrest

statement. People v Gibson, 71 Mich App

543, 547-548; 248 NW2d 613 (1976). Once

defendant raises the issue of postarrest

conduct during his direct testimony, he

cannot then complain that the

prosecutor's cross-examination on this

subject was error. In such a

-ll3a-

context, the impeachment does not amount

to use of the defendant's silence in

violation of the implied promise of

Miranda warnings because defendant -has

not remained silent, but has chosen to

speak after having received the warnings.

The impeaching inquiry is not an inquiry

concerning silence, but an inquiry

concerning a postarrest statement. 12

l2This point as illustrated by the

United States Supreme Court in Anderson v

Charles, 447 US 404; 100 S Ct 2180; 65 L

Ed 2d 227 (1980). In that case the

defendant was charged with first-degree

murder after having been arrested while

driving the decedent's automobile and

possessing some of his clothes. After

receiving Miranda warnings, the defendant

told the police that he had stolen the

car in Ann Arbor near Washtenaw and Hill

Streets approximately two miles from the

bus station. At trial he testified on

direct examination that he had taken the

car from the Cag lot of the Kelly

Tire Company which is next to the bus

station and directly across the street

from defendant's jail cell window. On

cross~-examination, the prosecutor asked

defendant if he had in fact stolen the

car from the Kelly Tire Company parking

(Footnote Continued)

-1liéa-

B

The line of inquiry regarding the

facts of defendant's prearrest conduct

was initiated by the prosecution in its

case in chief. However, testimony from

(Footnote Continued)

lot why did he not tell this story to the

police at the time of his arrest.

The Court determined that the

state's questioning of the defendant

concerning this inconsistency did not

amount to error under Doyle v Ohio

because the alleged error was simply

inquiry into a prior inconsistent

statement. "Such questioning makes no-

unfair use of silence, because a

defendant who voluntarily speaks after

receiving Miranda warnings has not been

induced to remain silent. As to the

subject matter of his statements, the

defendant has not remained silent at

all." 447 US 408. Concluding that Doyle

did not apply in that instance the Court

stated that "[ejach of two inconsistent

descriptions of events may be said to

involve ‘'silence' insofar as it omits

facts included in the other version. But

Doyle does not require any such

formalistic understanding of 'silence,'

and we find no reason to adopt such a

view in this case." Id., p 409. See

also 3 Weinstein, Evidence, Section

607[06], 607-98, n 28.

-115a-

Seidel, Dawson, and Stever concerning the

fact that defendant had not accused

someone else of the crime can neither be

considered comment on defendant's

prearrest silence nor irrelevant under

the Collier analyis. While in the

presence of Seidel, Dawson, and Stever,

the defendant had admitted to the

killings in response to a question by

Dawson. In this context, a failure to

deny guilt is not an inquiry concerning

silence, but an inquiry concerning a

prearrest statement. Properly

characterized, the inquiry is understood

as asking whether defendant had said

anything inconsistent with his admission

of guilt, see United States v Samples,

713 F2d 298 (CA 7, 1983) .13

l3we note that the federal courts

hold that the defendant bears the burden

(Footnote Continued)

-116a-

Likewise questions concerning

defendant's failure to accompany Seidel,

Dawson, Stever, Troher and David when

they went to see the lawyer was not

comment on his silence. Defendant

testified at both trials that he had in

fact been in contact with an attorney and

that it was he who had set up a meeting

between the attorney and the club

membership:

"It was arranged between me and him

[sic], he was going to set up a meeting

between the homicide detectives in charge

of the case and each and each [sic] and

every club member to make a statement to

the homicide detectives."

(Footnote Continued)

of proving an intent to comment or,

alternatively, that the jury would

naturally so construe the prosecutor's

inquiry or argument, United States v

Blankenship, 746 F2d 233 (CA 5, 1984);

United States v Riola, 694 F2d 670 (CA

11, 1983); Spalla v Foltz 788 F2d 400 (CA

6, 1986). Nor can it be said that

questions pertaining to defendant's

failure to go to the hearing may be

characterized as comment on defendant's

silence.

-117a-

The thrust of defendant's testimony was

that his failure to go with his attorney

to the police was only due to the fact

that he had been arrested before such a

meeting took place. He further explained

that he had maintained his silence in an

effort to protect Dawson, Stever, Seidel

and himself.

Significantly, no objection was made

by defense to either line of inquiry,

presumably because the only objection

that could have been interposed was

relevancyl4 and defense counsel

anticipated that, as in the first trial,

defedant's prearrest contact with the

attorneys would be used affirmatively in

l4uaving taken the stand in the

first trial and testified to his

prearrest contacts with the attorney,

defendant had waived his Fifth Amendment

privilege with regard to such testimony

in the second trial. Harrison v United

, 392 US 219; 88 S Ct 2008; 20 L Ed

2d 1047 (1967).

-118a-

his own defense to buttress his claims

that he was attempting to protect his

more culpable friends.

A review of the trial transcript

covering the testimony of Dawson and

Seidel clearly indicates that the

defendant intended to use his prearrest

conduct with the attorney to support his

Claim that he was not the shooter.

Defense counsel did not object to

questions put to Dawson, Seidel, and

Stever. On cross examination of Dawson

and Seidel counsel questioned their

knowledge of the defendant's independent

contact with the lawyer on the day after

the shooting.15 This point had not

15while Seidel indicated that he had

no recollection of the defendant having

visited the attorney with Stever on

Sunday, Dawson, when questioned by

defense counsel stated:

Q. Okay. When you were at Mr.

Dye's house for this corn roast, you

(Footnote Continued)

-1i29a-

(Footnote Continued)

recall a time when he made a phone call

to an attorney?

A. Yes.

Q. You recall that same night he

and Mr. Stever went to meet the attorney?

A. Yes.

Q. Okay. Well, now, I thought I

understood your direct testimony this

morning to indicate that you had to keep

pushing Mr. Dye, even into Monday night

to call an attorney?

A. He went to the attorney's house

to pick up some club property that had

been taken from there.

Q. My point, sir, is you just now

told us that he called the attorney on

Sunday while you were there and he and

Mr. Stever went to see the attorney, you

were not present?

A. No, I wasn't.

Q. Okay. I am asking how you kind

of reconciled that with your earlier

testimony that as late as Monday night

you were pushing him to call an attorney?

A. To go explain what had happened.

Q. But he had already seen the

attorney?

(Footnote Continued)

-120a-

been brought out on direct examination

and clearly was an attempt to buttress

defendant's theory before he took the

stand to testify. Defense counsel having

developed the theme that it was defendant

who had initiated the contact with

counsel, it would have been reasonable to

expect that if defendant were merely an

accessory to the crime, he would have

come forward with his version of the

(Footnote Continued)

A. But didn't explain what had

happened, to my knowledge.

Q. You didn't know?

A. To my knowledge.

Q. So you really don't know whether

that attorney was already working on it?

A. No, there is no way I could.

Q. Of course not. I am not blaming

you for that, but I do think we ought to

Clear it up.

A. Yes.

-12la-

incidents, as the others did. Thus, the

prosecutor's inquiry to Troher as to

whether defendant ever went down to the

police station was a question asked to

make “less probable," Collier, supra, the

inference that the defense sought to

draw, that prearrest conduct indicated

his innocence of the homicides.

Cc

The opinion for reversal fails to

distinguish between the relevancy issue

presented by defendant's prearrest

conduct and the constitutional question

presented by defendant's postarrest

silence. The opinion, thus legally and

factually confuses the defendant's

prearrest failure to accompany Dawson,

Stever, and Seidel when they went with

their attorneys to the police, with his

postarrest refusal to give a statement

-122a-

regarding the homicide. It states:

"Dye on direct examination testified

that he did not make a statement to the

police because his attorney advised him

not to do so. The prosecution asserts

that because Dye offered this testimony,

the prosecution could have subsequently

offered impeaching testimony, and

therefore--even if the prosecution

improperly included the testimony in its

case in chief--any error was harmless."

Slip op, p 19-20.

This statement is incorrect. The

prosecution did not make any inquiry in

its case in chief regarding Dye's

prearrest failure to make a statement,

Dye's failure to make a postarrest

statement to the homicide investigator,

or his postarrest statement to the arson

investigators.

When Dye testified on direct

examination that he had made a statement

to the arson investigators, there may

have been an incidental rebuttal effect

to any negative inference from his

failure to pursue his contact with his

-123a-

attorneys, but its principle purpose was

clearly to establish that the firebombing

committed by Dawson and Stever was the

motivation for the homicides. If the

reason for this offering was to rebut

evidence that Dye had not gone with the

others to make a statement, rebuttal

could have been confined to the fact of

making a postarrest statement. Instead,

for sound strategic reasons, defendant

Dye recited the details of his postarrest

statement to the arson investigators,

details that served not to explain his

silence, but to accuse his accusers.

The defendant's explanation regarding

his failure to make a statement

concerning the homicides when asked by

the arson investigator pertained solely

to his postarrest conduct. The

prosecutor did not allude to defendant's

-124a-

postarrest conduct at any point in his

case in chief.16

16In fact the prosecutor does not

argue that because Dye offered this

testimony, the prosecution could

subsequently have offered impeaching

testimony and therefore, even if the

prosecution improperly included the

ess in its direct case, because the

prosecution could have held the testimony

to impeach, any error was harmless.

Rather, the prosecution argues as to

prearrest conduct that "the prosecutor

did inquire of witness Troher if the

defendant ever went down to the police

station or if the defendant spoke with

the witness about the incident [but that]

it was the defense who elicited the fact

that Dye did not make any statements to

the police," p 21.

Nor does the prosecutor argue that

response to postarrest silence by the

prosecution could be justified as

anticipatory impeachment. Rather the

prosecution asserts that which the record

establishes, viz.,

"that the prosecutor did not elicit any

testimony concerning the defendant's

postarrest silence following the giving

of Miranda rights and the invocation of

the right to remain silent.... It was

the defense who elicited the fact that

the defendant was given Miranda warnings

and that he asserted the right to remain

silent upon the advise of counsel ... the

(Footnote Continued)

Defendant's failure to make a statement

to the homicide investigator was brought

out by defense counsel in anticipation of

the fact that the prosecutor would, as he

did, allude to 3. < during

cross~-examination.

In sum, defendant's statement that he

did not make a statement regarding the

homicides was not offered to rebut

testimony from Dawson, Stever, and Seidel

concerning his prearrest conduct. It was

elicited by defense counsel after

defendant had testified that he gave a

statement incriminating the others in the

firebombing in an attempt by his own

counsel to explain omissions in his

postarrest behavior in order to buttress

(Footnote Continued)

defendant elected to place such evidence

before the jury by way of an explanation

and cannot now complain if the results

were miscalculated." Pp 20-21.

-126a-

the defendant's testimony that the others

were guilty.

D

Finally, with regard to Troher and

David, who were not present at the time

of the shootings and possessed firsthand

knowledge only concerning the murder

weapon, defendant argues that questions

of these two witnesses regarding whether

defendant denied his guilt were

irrelevant in that he possessed no duty

to disclose to them his knowledge of the

crimes, and, given his part in the

coverup, it would not have been natural

for him to do so. Silence in this

instance, the defendant claims, is

inherently ambiguous and of little

probative value.

For the purpose of deciding the

remaining claims of error concerning the

-127a-

testimony of David and Troher, we assume

arguendo under People v Collier, 426 Mich

23; 393 NW2d 346 (1986), that the trial

judge erred in permitting the prosecutor

to question these witnesses concerning

defendant's prearrest conduct. We note,

however, that defendant did not object to

the disputed testimony at trial. In the

absence of a timely objection, the issue

is deemed waived, and "appellate review

is foreclosed unless our failure to

consider the issue would result in a

miscarriage of justice." People v

Duncan, 402 Mich 1, 16; 260 NW2d 58

(1977); MCL 769.26; MSA 28.1096. After

thorough review of the record, we can not

conclude that a miscarriage of justice

would result in this instance.

In People v Collier, we held that

People v Bobo, 390 Mich 355; 212 NW2d 190

(1973), was not applicable to impeachment

-128a-

by silence which occurred before any

contact with police officers. We held

hat, consistent with the Supreme Court's

ruling in Jenkins v Anderson, 447 US 231;

1100 S Ct 2124; 65 L Ed 2d 86 (1980),17

the decision to admit prearrest silence

17In Jenkins v Anderson, 447 US 231;

100 S Ct 2124; 65 L Ed 2d 86 (1980), the

Court held that a defendant may be

impeached with silence where the silence

preceded the arrest and the Miranda

warnings. The Court engaged in a

two-step analysis, finding, first, no

impermissible burden on a constitutional

right, and, second, that the prearrest

silence was probative.

The Court concluded that the Fifth

Amendment was not burdened by such

impeachment of a testifying defendant

because the defendant had waived the

privilege against self-incrimination by

taking the stand. The Court also found

that since no governmental action had

induced the defendant to remain silent

before arrest, the fundamental fairness

guarantee of the Fourteenth Amendment was

not violated. See also Fletcher v Weir,

455 US 603; 102 S Ct 1309; 71 L Ed 2d 490

(1982), and Anderson v Charles, 447 US

404, 100 S Ct 2180; 65 L Ed 2d 222 (1980)

(due process not violated by impeachment

with postarrest, pre-Miranda silence).

(Footnote Continued)

eee ee ea

-129a-

(Footnote Continued)

In this instance, we are not here

confronted with a situation in which

silence was offered against a

nontestifying defendant. Defendant took

the stand and waived his Fifth Amendment

privilege with respect to the crime

charged, Anno:

s = iA

Vv

5 ALR2d 1404. Once the

defendant testified that he had initiated

the contact with the attorney and that he

would have been willing to make a

statement, questions regarding his

failure to go to the attorney or to the

police would clearly have been

permissible on cross-examination under

¢ Jenkins clearly established

that the use of prearrest silence for

impeachment purposes does not, in and of

itself, violate the federal constitution.

See, generally, 1 LaFave & Israel,

Criminal Procedure, Section 9.6(a), pp

774-775.

As the Court observed in Fletcher v

Weir, supra, 455 US 604, nl:

"During cross-examination, the

prosecutor also questioned respondent

concerning his failure prior to his

to report the incident to the

police and offer his exculpatory story.

Relying on our decision in Jenkins v

[supra], the Court of Appeals

correctly held that there was no

constitutional impropriety in the

prosecutor's use of respondent's

pre-arrest silence for impeachment

purposes." (Emphasis in original.)

-130a-

is evidentiary, to be resolved by

reference to its relevancy and in light

of its probativeness as opposed to its

potential for prejudice, MRE 403.18

Assuming arguendo that defendant's

failure to deny guilt was not relevant

evidence, we nevertheless conclude that

two references to this fact did not

result in a miscarriage of justice. We

note that the defendant's silence was

consistent with the defense theory of a

conspiracy to withold information from

the police. We also note that an

eyewitness testified regarding

defendant's commission of the murders,

18 our decision in Collier, however,

dealt only with the use of prearrest

silence for impeachment; it was not

extended to cover substantive use of such

evidence.

ae

-l13la-

that two other witnesses testified that

defendant had admitted the killings, and

that these comments constituted only two

brief references in the course of a trial

stretching nearly two weeks and filling

over 1300 pages of recorded transcript.19

Finally, the lead opinion has

concluded that defendant is entitled to a

new trial. On retrial, regardless of

whether defendant states in limine his

intention to testify, two points should

be noted. First, as to the retrial the

defendant has not yet waived his Fifth

Amendment right to remain silent.

19 Nor can we consider defense

counsel's failure to object to this line

of questioning tantamount to

ineffectiveness of counsel given that the

first trial ended with a hung jury. We

are convinced that sufficient evidence of

record exists apart from the alleged

"errors" to support the finding of

defendant's guilt beyond a reasonable

doubt.

-132a-

However, with regard to his prior

testimony, having voluntarily chosen to

testify at the former trial defendant has

waived his Fifth Amendment rights as to

such proceeding and objection to use of

his former testimony will not lie on that

ground. 20

CONCLUSION

We would hold that, on the facts of

this case, the trial court did not abuse

its discretion in finding due diligence

in the prosecution's efforts to locate

the missing witnesses. We would further

hold that the evidentiary errors alleged

20 See anno: Use _ in subsequent

osecutio - Cc m

testimony given without invoking

priv vilege, 5 ALR2d 1404. See also

Harrison v United States, 392 US 219; 88

S Ct 2008; 20 L Ed 2d 1047 (1968).

-133a-

by the defendant did not result in a

miscarriage of justice. The decision of

the Court of Appeals should be affirmed.

s/ Patricia J. Boyle

s/ Dorothy Comstock Riley

s/ Robert Griffin