Opposition Brief — Michigan v. Dye

Supteme Court, US. fF

tia ORIGINAL eres.

~ OCT 28 1988

V NO. 88-564 e/ JOSEPH F. SPANIOL, JR.

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

STATE OF MICHIGAN

Petitioner,

Vv.

PAUL ALLEN DYE

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

AFFIDAVIT

PROOF OF SERVICE

STATE APPELLATE DEFENDER OFFICE

JAMES KROGSRUD (P28406)

Assistant Defender

Third Floor, North Tower

1200 Sixth Street

Detroit, Michigan 48226

(313) 256-2814

Counsel for Respondent

NO. 88-564

SUPREME COURT OF THE UNITED STATES

- OCTOBER TERM, 1988

STATE OF MICHIGAN

Petitioner,

v.

PAUL ALLEN DYE

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The respondent asks leave to file the attached Brief in Opposition to a

Petition for a Writ of Certiorari to the Supreme Court of the State of Michigan

(without prepayment of costs) and to proceed in forma pauperis pursuant to Rule

46.

The respondent's affidavit in support of this motion is attached hereto.

BY:

ROGBRUD (28406)

Assistant Defender

60 Sixth Avenue

Detroit, Michigan 48226 |

(313) 256-2814

Dated: October 28, 1988

NO. 88-564

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

STATE OF MICHIGAN

. Petitioner,

We

PAUL ALLEN DYE

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

IN FORMA PAUPERIS

I, PAUL DYE, being duly sworn, depose and say that I am the Respondent,

in the above-entitled case; that in support of my motion to proceed without

being required to prepay fees, costs or give security therefor, I state that

because of my indigency I am unable to pay the costs of said proceeding or to

give security therefor; that I believe I am entitled to redress; and,

I further swear that the responses which I have made to the questions and

instructions below relating to my ability to pay the cost of prosecuting the

appeal are true.

1. Are you presently employed? Yes No xX

a. If the answer is yes, state the amount of your salary or

wages per month and give the name and address of your

employer.

b. If the answer is no, state the date of your last employment

and the amount of the salary and wages per month which you

received.

hls Leqgal Ssevices of Mpohig an LAC.

g Z. Ser" ges day

i -

2. Have you received within the past twelve months any income from

any of the following sources?

a. Business, profession. or form of self-employment?

Yes No re.

b. Rent payments, interest or dividends?

a No . s

ce. Pensions, anuuities or life insurance payments?

Yes No -.&

d. Gifts or inheritances?

Yes No Pa

e. Any other sources?

Yes No x

If the answer is yes, describe each source of income, and state the amount

received from each during the past twelve months.

3. Do you own any cash or checking or savings accounts?

Yes Siete No ts

(Include any funds in prison accounts).

If the answer is yes, state the total value of the items owned.

4. Do you own real estate, stocks, bonds, notes, automobiles, or other |

valuable property (excluding ordinary household furmishings and cloth-

ing)?

Yes No xX

If the answer is yes, describe the property and state its approximate

value.

5. List the persons who are dependent upon you for support, state your

relationship to those persons, and indicate how much you contribute

toward their support.

J haan YM te - bJj4e _#O>, Oo

Kaul A. De Iz - Son ~$O. 00

bhai G. Lye -— Syga -£0. Oo

I understand that a false statement or answer to any question in the affi-

davit will subject me to penalties for perjury.

A Lye

Subscribed and sw to, before me

this 2? 7 day of COcPrbon 1988.

shu u L. Mul. ylio

Notary Pqb Pablic, Wayné) County, Michigan

Repeat ata 2-1/4 -Go

NO. 88-564

SUPREME COURT OF THE UNITED STATES

= OCTOBER TERM, 1988

STATE OF MICHIGAN

Petitioner,

Vv.

PAUL ALLEN DYE

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

MICHIGAN SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

STATE APPELLATE DEFENDER OFFICE

JAMES KROGSRUD (P28406)

Assistant Defender

Third Floor, North Tower

1200 Sixth Street

Detroit, Michigan 48226

(313) 256-2814

Counsel for Respondent

TABLE OF CONTENTS

INDEX OF AUTHORITIES

COUNTER-STATEMENT OF THE QUESTION PRESENTED. .

COUNTER-STATEMENT OF THE CASE .

CONCLUSION

SG*SG3255BR3a*10-28-88

DYE, PAUL ALLEN

pes

21

INDEX OF AUTHORITIES

CASES

Barber v Page, 390 US 719; 88 S Ct 1218; 20 LEd 2d 255, 258, 260

0 | re ere er era a are ey rr ere ee oe te 9,12,13,14,15

California v Green, 399 US 149; 26 LEd 2d 489, 515, fn.22; 90 5S Ct 1930

+. a a eae ee ae ae ae ie eee ar eer er ee 20

Commonwealth v Bohannon, 434 NE2d 163 (1982). ........5446446-. 12,17,18

Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 LEd 2d 597 (1980)... . passim

People v Dye, 431 Mich 58, 61-62; NW2d (1988) .... . a ' 15

People v Schepps, 217 Mich 406; 186 NW2d 608 (1922)........... 19

Sumner v Mata, 446 US 1302; 64 LEd 2d 480; 102 5 Ct 1303 (1982) 15

SECONDARY AUTHORITIES

Black's Law Dictionary, 4th ed oo 16

RN RE

COUNTERSTATEMENT OF QUESTIONS PRESENTED

I. WHETHER UNDER THE CIRCUMSTANCES OF THIS CASE,

THE MICHIGAN SUPREME COURT ERRED IN FINDING

"GOOD FAITH" UNDER BARBER v PAGE AND OHIO V

ROBERTS REQUIRES THE PROSECUTOR TO EXERCISE

DUE DILIGENCE IN ATTEMPTING TO LOCATE

MATERIAL WITNESSES BEFORE PERMITTING USE OF

THEIR PRIOR TESTIMONY AT TRIAL.

COUNTER-STATEMENT OF THE CASE

Summar

Six people are known to have been in the clubhouse of the

Forbidden Wheels Motorcycle Club in the City of Detroit,

Michigan, on the night of August 29, 1982. Two of them were

killed. The other four were members of the Forbidden Wheels,

Paul Dye, Bruce Siedel, James Dawson, and Steve Stever. Two of

them were upstairs and did not see the killing, but became

immediately involved in a coverup of the crime. One person fired

the two shots. The other person was present when that happened,

and also became involved in the coverup. Respondent Paul Dye was

charged with the killing on the basis of the other three

witnesses’ statements. He was convicted (after one hung jury

trial) of being the killer. He testified and still maintains

that in reality he was the eyewitness, not the killer.

Hearing on Due Diligence in Locating Witnesses

Prior to selecting a jury on August 22, 1983, the prosecutor

indicated three witnesses were unavailable, and sought permission

to use transcripts of their prior testimony. Defense counsel

said he had not previously been made aware of any problems in

subpoenaing any of the witnesses. At a defense motion to adjourn

the trial to more fully prepare, the prosecutor had told the

court that some witnesses had been served and attempts were being

made to serve the others. He had not specified which witnesses

had not vet been served, nor had he indicated that there had been

exceptional problems that were holding up service.

The officer in charge of the case, James Kuhnlein, testified

about the efforts made to locate witnesses James Dawson, Steve

Stever and Bruce Seidel. He said that jails, hospitals and

morgues in the Metropolitan Detroit area were contacted, with no

results. He also checked with MESC (Michigan Employment Security

Commission) and social services, without results. Although the

prosecutor had asked him to check with utility companies it had

slipped Kuhnlein's mind until the morning of trial.

The prosecutor asked Kuhnlein if there had been efforts to

get the witnesses' addresses when they “were in town the last

time". Kuhnlein said that Dawson gave him a local address on

Brady or (Grady) and Seidel had given one in Mason City, Iowa.

At that time, Kuhnlein knew that Dawson had made plans to move

out of town.

Efforts Regarding Dawson

At the Detroit address for Dawson, Kuhnlein said, he spoke

to a young lady on August 1, 1983 (three weeks before trial).

She told him that Dawson had sold her the house three weeks

before that; the purchase had been made through an attorney, and

the woman did not know Dawson's whereabouts.

According to Kuhnlein, Dawson's mother had not known as of

July 6 where he was. She knew of the trial date, having heard

from the prosecutor's office; she may have indicated that Dawson

was aware of it as well. The prosecutor testified that he had

himself informed Dawson of the trial date and had spoken to him

by phone a number of times.

Dawson had asked the prosecutor about Respondent Dye

attempts to make bond. The prosecutor had called Dawson on July

12 after hearing rumors on the street that Dawson would not

appear to testify; the phone was disconnected, but the prosecutor

did receive a call from Dawson a week later. There is no

indication that the prosecutor obtained an address at that time.

After Kuhnlein obtained a California address for Dawson from

the post office!’ the prosecutor in that California county was

contacted. Kuhnlein knew that a photograph of Dawson was sent on

August 16; a L.E.I.N. message was also sent then.

The prosecutor testified that on August 5, 1983, a package

containing documents relating to the Interstate Witness Act was

sent to the district attorney in California with regard to

Dawson's address. Kuhnlein testified that the prosecutor said on

the 18th of August someone had been sent to the address and

Dawson was not there. Kuhnlein did not find out if this occurred

more than once, or if any other places such as utilities

companies, jails, hospitals etc. were checked. The prosecutor

testified that he had made a follow-up call on August 16 (six

days before trial) at which time Dawson had not been served; on

August 18 the California prosecutor reported the witness was not

at the address given, but they would keep trying to locate him.

Members of the sheriff's department in California had gone to the

YA LATZ

ee ae

house on two occasions, were told Dawson was not there at the

time, and had heard he had a job lead somewhere in the area.

Efforts Regarding Stever

When Kuhnlein went to the known local address for Steve

Stever (also on August 1), Kuhnlein spoke to a man who said he

was Stever's tenant. The tenant said he had paid rent to someone

he assumed was Stever'’s relative; the tenant had heard Stever

might be in Tennessee, Wisconsin, or California. No forwarding

address for Stever was obtained although the post office was

contacted. The tenant reported he had learned in June that the

house was to be repossessed; Kuhnlein called the gas and electric

utilities during the lunch break on the first day of trial and

verified that service in the name of Donald Stever had been

discontinued at the Brady address in June. No forwarding address

was given. As he had just gotten the name “Donald” Stever that

day, Kuhnlein did no investigation regarding it.

The state had paid air fare for Stever from Livingston,

Tennessee for the first trial. The prosecutor for that county

was contacted on about July 18. The prosecutor trying this case

testified that the Interstate Witness Act documents were mailed

on August 5 to Tennessee. All he knew about attempts there to

locate Stever was that the Tennessee prosecutor -had given the

subpeona to the Sheriff's Department, which was “attempting to

mserve” it. Kuhnlein also did not know what efforts had been made

by the Tennessee prosecutor to locate Stever; Kuhnlein had called

on August 19 but did not get through.

Kuhnlein had spoken to Dawson's mother on July 6, and was

told that Stever had left town two days after the last trial; she

doubted that he had gone back to Tennessee. Kuhnlein had an

address for Stever's mother but never attempted to contact her.

Efforts Regarding Seidel

Although the address for Stever was the local address

Kuhnlein had for witness Seidel, ».anlein did not ask Dawson's

tenant about Seidel. Kuhnlein did not seek a forwarding address

from the post office for Seidel, “because I knew he was in Mason

City, according to his mother”. Kuhnlien had been in possession

of an Iowa address for Seidel throughout proceedings in this

case.

Kuhnlein had spoken to an Iowa detective who said he had

talked to Delores Seidel, the mother. She had said her son was

out of town and that she would relay a message to have him call.

Kuhnlein tried to call the mother during the day and got no

answer; another officer called her at 3:00 a.m. on the 7th of

July (or on June 22),. and was told that Seidel was out of town,

that the message for him to call would be passed on. Messages to

Iowa were sent through the L.E.I.N. (Law Enforcement Information

Network) on June 2 and June 22, with the same information being

received. As of trial, he had not called.

The Iowa prosecutor was contacted some documents being

mailed to him a week or less before trial according to Kuhnlein.

The prosecutor testified that the Interstate Witness Act

documents were mailed to Iowa on August 5, 1983. The trial

prosecutor testified that he spoke to someone but did not take

notes as to who or when. He was informed that Seidel was

apparently living at the address but the authorities had not yet

been able to serve him.

. On the second day o. trial, the prosecutor placed on the

record (outside the jury's presence) a letter that he received

from the Iowa prosecutor regarding Seidel. According to the

letter, an Iowa warrant had been issued for Seidel on August 11,

1983. Contacts with his former girlfriend, his mother, and an

establishment favored by bikers had not resulted in information

nor service of the subpeona or execution of the warrant.

Other Matters Regarding Due Diligence

The attorney for the witnesses had been contacted. He said

he had not heard from them.

The Use of the Testimony at

Trial

The court ruled that due diligence had been shown. The

court found that the Interstate Witness Act had been complied

with, "and that is all that

is required as far as this Court

knows. . .". Over objection, the testimony of Dawson, Stevers,

and Seidel from the first trial was read into evidence. The

reading was done by members

point, defense counsel also

intonations used in reading

At sentencing, Mr. Dye

fair trial, asserting there

of the prosector's office. At one

objected to the manner and

the prior testimony.

complained that he had not received a

should have been greater efforts to

locate the missing witnesses. Defense counsel noted on the

record that Bruce Seidel had been picked up in Iowa after Mr.

Dye's conviction.

Trial Testimony

The three missing witnesses had supplied the only link

between Defendant Dye and the killings. Mr. Dye testified that

he awoke from a drunken sleep in the clubhouse to see Bruce

Seidel standing, with a gun

in his hand, over the two bodies.

This was some time after the two women had heard Dawson and

Stever describe in detail the firebombing they had just

committed. Dawson and Stever had gone upstairs to look at the

—EEEEE————————

resulting smoke. A tracking dog did lead investigators from the

scene of the firebombing to within 100 feet of the clubhouse

where the killings occurred. Bruce Seidel claimed to have

actually seen Respondent Dye Shoot the victims. The prosecutor

agreed not to use the witnesses’ statement against them for their

admitted involvement in cleaning up the crime scene.

Mr. Dye appealed by right. The convictions were affirmed by

the Michigan Court of Appeals on May 22, 1985. The Michigan

Supreme Court granted Mr. Dye's Application for Leave to Appeal

and on August 2, 1988 issued its opinion reversing his

conviction.

Justice Levin, writing for the majority said:

"This appeal presents two questions.

The first is whether the prosecution

showed due diligence in attempting to

produce the three witnesses for 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.

Further, citing Barber v Page and Ohio v Roberts, the Michigan

Court opined:

"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. this [sic] is a

substantial requirement. ‘If there is a

possibility, albeit remote, that

affirmative measures might produce the

declarant the obligation of good faith

may demand their effectuation."

(emphasis in original citations

omitted).

The court noted the question of "[{W])hether the prosecution made a

diligent, good-faith effort to produce 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.”"

After reviewing the prosecutor's efforts to locate the

witnesses, including invocation of the Uniform Witness Act, the

Court said:

"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

2eez?#?

--- 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

produce 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.

The prosecution's obligation to make a

diligent good-faith effort is

nondelegable. If the prosecution relies

on out-of-state police to follow

particular leads, and they make a

10.

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 ...

* @ ¢ 4. @

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 -- send its own

investigator. The prosecution undertook

none of these steps. Such ‘affirmative

reasures' may well have produced the

witnesses.

ll.

REASONS FOR DENYING THE PETITION

In Barber v Page, 390 US 719; 88 S Ct 1218; 20 LEd 2d 255,

258, 260 (1968), this Court held, that a witness is not

"unavailable" for exception to the confrontation requirement to {

allow use of his former testimony at trial "...unless the

prosecutorial authorities have made a good-faith effort to obtain

his presence at trial...” Barber v Page, supra. Petitioner

argues the Court "should clarify the requirements of such "good

faith efforts" and maintains the Michigan Supreme Court's holding

in this case conflicts with the Court's decision in Ohio v

Roberts, 448 US 56; 100 S Ct 2531; i165 LEd 2d 597 (1980). This

assertion rests on a mischaracterization of the Michigan Supreme

Court's ruling set forth in Petitioner's "Reasons For Granting

The Writ", that "...[{T]he 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...". (Emphasis in original).

Petitioner further intimates clarification of the “good

faith" standard is necessary to establish uniformity between

state court decisions in cases which involve similar questions

under the Confrontation Clause. Commonwealth v Bohannon, 434

NE2d 163 (1982) a Massachusetts case, is offered as an example of

“disparity” among state courts in application of the "good faith”

standard. There, Petitioner claims, good faith was not

LZ.

established because that court found the Uniform Rendition of

Witnesses Act ("the Act") was invoked "too soon". This holding

Petitioner contends, is contrary to the Michigan Supreme Court's

holding in this case that the Act was utilized "too late" and

therefore good faith was not found. |

In Ohio v Roberts, this Court acknowledged its prior cases

did not refine the "good faith" standard established in Barber v

Page. Nevertheless, the Court recognized “general propositions

{had} safely emerge[d]". These the Court implicitly identified

as follows:

"The law does not require the doing of a

futile act. Thus, if no possibility of

procuring the witness exists (as, for

example, the witness' intervening

death), ‘good faith" demands nothing of

the prosecution. But if there is a

possibility, albeit remote, that

affirmative measures might produce the

declarant the obligation of good faith

may demand their effectuation. ‘The

lengths to which the prosecution must go

to produce a witness ... is a question

of reasonableness'." Ohio v Roberts,

supra, 65 L Ed 2d 613 (citations

omitted, emphasis added).

Thus, read together, Barber v Page and Ohio v Roberts

establish that a good faith effort to produce a witness requires

the prosecutor to take all reasonable action(s) to do so. What

constitutes reasonable action varies depending upon the

particular circumstances of the case and is a function of the

probability those actions will result in securing the witness for

trial. Consequently, in Barber it was unreasonable for the

& F

prosecutor to do nothing where the witness’ location was known

and avenues existed to secure the witness" presence at trial.

The factual circumstances in Ohio v Roberts, however, led the

Court to conclude that, although the prosecutor may have followed

possible leads to the witness:

*...[T)he great improbability that such

efforts would have resulted in locating

the witress and would have led to her

production at trial, neutralizes any

intimation that a concept of

reasonableness required their

execution." 65 LEd 2d at 614.

Unlike the circumstances in Barber, in Ohio v Roberts, the

witness’ location was not known, and the prosecutor apparently

knew of only one (1) person who had contact with the witness

"many months” before trial. Also, it appeared trial was

adjourned while the prosecutor attempted to locate the witness.

Consequently, the prosecutor's arguably minimal effort of issuing

subpoena: at the witness’ last known address did not, in that

case, evidence a lack of good faith. This is not to say,

however, good faith efforts require no more than minimal or

perfunctory efforts to locate witnesses. In Ohio v_ Roberts, the

Court said affirmative measures which offer only a remote

possibility of success may be required. The “good faith due

diligent" test the Michigan Supreme Court applied in this case

embodies one of the “safe general propositions” identified in

Ohio v Roberts.

In both Barber v Page, and Ohio v Roberts, the Court

14.

examined the prosecutor's objective conduct to determine if it

established a “good faith" effort. This Court has recognized,

and the Michigan Supreme Court properly acknowledged, that the

question of “good faith" under Barber v Page requires a

case-by-case analysis of the existing factual circumstances.

Thus, entirely consistent with this Court's rulings, the Michigan

Supreme Court reviewed the prosecutor's efforts to locate the

witnesses for the second trial and concluded those efforts were

insufficient to establish the witnesses’ unavailability to allow

admission of their prior testimony at trial in contravention of

Respondent's right to confrontation. That court's factual

findings are not binding upon this Court, but should nevertheless

be given deference Sumner v Mata, 446 US 1302; 64 LEd 2d 480; 102

S Ct 1303 (1982).

The court below found *...[{t]Jhe 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". People v Dye, 431 Mich 58, 61-62;

____ -NW2d __—s (1988). (Emphasis added). In addition to these

facts noted above, another relevant factor is this case involved

prosecution of a double homicide. Furthermore, the witnesses

provided the only evidence against Respondent. Surely, the

seriousness of the crime bears upon the energy expended to locate

witnesses necessary for successful prosecution. Here, the

15.

prosecution was unsuccessful at the first trial where the jury

hung 11 to 1 for acquittal. This did not escape the Michigan

Supreme Court's attention. Given that the prosecutor knew when

the second trial was scheduled to begin, and provided the

witnesses with out-of-state, round trip, air fare for the first

trial, it was unreasonable for the prosecutor to make no effort

to locate, or maintain contact with the witnesses until, in one

case, as late as one (1) month before trial was scheduled to

Start. At a minimum, one would reasonably expect the prosecutor

to obtain the witnesses’ out-of-state addresses before they left

and/or periodically contact them. Similarly, because the

witnesses were known to have come from out-of-state for the first

trial, reasonable efforts to locate them would have been

initiated in those locales. Instead, the officer testified at

the due diligence hearing that his first efforts to find the

witnesses were limited to local venues.

Due diligence is generally defined as:

"Due diligence. Such a measure of

prudence, activity, or assiduity, as is

properly to be expected from, and

ordinarily exercised by, a reasonable

and prudent man under the particular

circumstances; not measured by any

absolute standard, but depending on the

relative facts of the special case."

Black's Law Dictionary, 4th ed

(citations omitted, emphasis added).

Reversal in this case was not solely predicated on the

prosecutor's failure to invoke the Act sooner. That fact was but

one of many the court examined to determine whether diligent

16.

efforts had been made. As a whole, the Michigan Supreme Court

considered the prosecutor's efforts to locate the witnesses

"tardy and incomplete". Moreover, the Massachusett court's

holding in Commonwealth v Bohannon, 434 NE2d 163 (1982), contrary

to Petitioner's assertion, did not result from that court's

finding the Act was invoked “too soon” and does not show its

application of the “good faith" standard conflicts with the

Michigan Court.

In that case, the prosecutor initiated proceedings uner the

Act in Florida thirteen (13) months before the scheduled trial

date in Massachusetts. The Florida court declined to order the

witnesses’ attendance based on its finding her return would be an

"undue hardship". Bohannon, p 166. Shortly thereafter, the

prosecutor's motion for admission of the witness’ testimony at

the first trial because of her unavailability was denied. A

second motion to admit other prior testimony was granted eight

months later by a judge who adopted the first judge's ruling on

unavailability. During the week preceding trial, the prosecutor

tried to reach the witness by telephone several times.

Massachusetts’ highest court reversed the defendant's

convictions. The court found "...reliance on [the witness' ]

status over one year prior to trial is inadequate to establish

her “unavailability at the time of trial”. The court further

observed the witness’ “testimony was vital” to the prosecution,

and “credibility was a central issue”.

17.

The court also acknowledged resort to the Act may support a

finding of unavailability if unsuccessful. Reviewing cases in

other jurisdictions, the Massachusetts court said “generally that

resort to the Uniform Act, coupled with a good faith effort to

secure the witness's presence at trial satisfies the

constitutional requirement of unavailability. Bohannon, 170

(emphasis added).

As this Court recognized in Barber, the Act was promulgated

to prevent abusive manipulation of the unavailability requirement

by merely establishing a witness was outside the trial court's

jurisdiction. The prosecution in Bohannon and Petitioner here

ask for adoption of a rule to hold that invocation of the Act,

irrespective of other circumstances, satisfies constitutional

mandates. This Court should reject that position.

Implementation of such a standard would lead to abuses similar to

those the Act was meant to remedy. Such a rule would necessarily

require that the Act be invoked within a set time period which

period could not be reasonable in every situation.

The Michigan Supreme Court explained why the prosecutor's

duty was not discharged by resort to the Act here:

"The Prosecution's obligation to make a

diligent 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 witnesses, then their efforts

may discharge the prosecution's

obligation.”

18.

This was simply another “safe general proposition", i.e.,

that appointment of an agent does not relieve a principal of his

obligation. There was no evidence presented to show the

out-of-state police made a diligent good faith effort to locate

the witnesses. This observation is not contrary to the holding

set forth in Ohio v Roberts, supra.

Moreover, the prosecutor's utilization of the Act could not

have reasonably been expected to yield the witnesses in time for

trial. Packets of materials under the Act were not sent until a

scant 2 weeks before trial. Photographs to assist in identifying

the witnesses were then forwarded approximately one (1) week

later. Had the witnesses been located within that period, it is

likely required court proceedings under the Act would would not

have been completed in time for trial. This is particularly so

where the prosecutor did not seek an adjournment to allow them

more time to find the witnessess.*/

The Michigan Supreme Court

did not hold the prosecutor was required to press local

authorities and perhaps send its own investigators to the other

states. Rather, the court. said these things should have been

done in this case. This was not hindsight, but examples of

action warranted under the circumstances. All of the steps taken

earlier failed and trial was imminent. Despite this, the

prosecutor neither accelerated nor escalated its efforts to

2/ See People v Schepps, 217 Mich 406; 186 NW2d 508 (1922),

where prosecutor requested continuances.

“ 19.

locate the witnesses, directly or through out-of-state

authorities. None of the courses of action which the Michigan

Supreme Court suggested would have been appropriate can be

considered unreasonable in this case. Nor would the

inconvenience or expense of such action excuse the failure to

take such steps. California v Green, 399 US 149; 26 LEd 2d 489,

515, fn.22; 90 S Ct 1930 (1970).

If the Michigan Supreme Court's “good faith due diligence”

standard is not synonomous with this Court's “good faith"

standard, the due diligence standard under Michigan law is

nevertheless, is an adequate and independent basis for the

decision below. Justice Archer noted in his concurring opinion

that Michigan had required prosecutors to exercise due diligence

to produce material witnesses before it was held that the Sixth

Amendment applied to the states. He concluded that the

prosecutor had not exercised due diligence. Justice Brickley

agreed "the due diligence standard was violated.”

~—

20.

CONCLUSION.

There is no fundamental federal question involved in this

case when fully and correctly analyzed. Therefore the Court

should deny the Petition for Writ of Certiorari and Affirm the

Michigan Supreme Court's ruling.

21.

Dated: October 28,

1988

Respectfully submitted by:

STATE APPELLATE DEFENDER OFFICE

Floor, North Tower

Sixth Street

Detroit, Michigan 48226

(313) 256-2814

NO. 88-564

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

STATE OF MICHIGAN

Petitioner,

Vv.

PAUL ALLEN DYE

Respondent.

*** PROOF OF SERVICE ***

MARY L. SAWNICK, being first sworn, says that on October 28, 1988, she

mailed one copy of the following:

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

AFFIDAVIT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

MICHIGAN SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

PROOF OF SERVICE

TO: Clerk, Michigan Supreme Court Wayne County Prosecutor's Office

P.O. Box 30052 Appellate Division

525 W. Ottawa Frank Murphy Hall of Justice

Lansing, MI 48909 1441 St. Antoine - 12the Floor

Detroit, MI 48226

Clerk, Court of Appeals Mr. Paul Dye

900 First Federal Bldg. 2243 Millenbach

1001 Woodward Avenue St. Clair Shores, MI 48081

Detroit, MI 48226

MARY

Subscribed and sworn to before me

this 28th day of October, 1988

pels Public, 2. Ltd

My commission expires: 7/ 16/ 90