
    PEOPLE v. TEES PEOPLE v. BATTEN
    Criminal Law—-Evidence—Witnesses—-Preliminary Examination Testimony — Constitutional Law — Confrontation by Witnesses.
    Reeord for justification of nonproduction at trial of two named prosecution witnesses and of the evidentiary employment during trial of their testimony at the preliminary examination comes within the constitutional ban of United States Supreme Court decisions, which were held effective retroactively, and the convictions of the defendants should be reversed and remanded for new trial as they were deprived of their Sixth and Fourteenth Amendment right to be confronted by those witnesses where the prosecuting attorney conceded that no showing was made of any attempt to produce the presence of one of the witnesses at the trial other than a mere showing that he was in the Navy and outside the jurisdiction of the state and the prosecutor’s position as to the other witness was that, while it was not contended the witness’ testimony was harmless, the defendants failed to establish any abuse of discretion on behalf of the trial court’s actions in ruling that sufficient effort had been extended to produce that witness for trial (US Const Ams 6,14). References for Points in He adnote
    21 Am Jur 2d, Criminal Law § 343.
    Federal constitutional right to confront witnesses—Supreme Court eases. 23 L Ed 2d 853.
    Appeal from Court of Appeals, Division 2, J. H. Grillis, P. J., and Danhof and O’Hara, JJ., affirming Oakland, Leon R. Dardas, J.
    Submitted November 4, 1971.
    (No. 30
    October Term 1971,
    Docket Nos. 52,924, 52,925.)
    Decided December 21, 1971.
    
      23 Mich App 476 reversed.
    William Tees and Ivan Batten were convicted of obtaining money by false pretenses and conspiracy to commit that offense. Defendants appealed to the Court of Appeals. Affirmed. Defendants appeal.
    Reversed and remanded for new trial or separate trials.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
    
      James F. Finn, for defendants.
   Per Curiam.

The controlling question here is substantially the same as that which confronted the Supreme Court in Barber v. Page (1968), 390 US 719 (88 S Ct 1318, 20 L Ed 2d 255), and again in Berger v. California (1969), 393 US 314 (89 S Ct 540, 21 L Ed 2d 508). That question is whether the defendants were deprived of their Sixth and Fourteenth Amendment right to be confronted by absent —from this joint trial—prosecution witnesses Connie Wood and Victor Postic. For the background of facts giving rise to the stated question, see People v. Tees (1970), 23 Mich App 476 and People v. Batten (1967), 9 Mich App 195.

Defendants weré tried and sentenced in 1962, prior of course to the handing down of Barber and Berger. However, in Berger, the presently applied rule of Barber was held effective retroactively.

The prosecuting attorney concedes that “no showing was made of any attempt to procure the presence of the witness Victor Postic at the trial in the above entitled cause, other than a mere showing that he was in the Navy and outside the jurisdiction of the State.” He contends however that the transcript of Postic’s testimony shows that such testimony did not incriminate either of the defendants, “and indeed constituted harmless constitutional error,” citing Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705). As for the witness Wood, the prosecutor states candidly that “the People have never contended that her testimony was harmless.” His position nonetheless is that defendants “have failed to establish any abuse of discretion on behalf of the trial court’s actions in ruling that sufficient effort had been expended to produce Miss Connie Wood for trial.”

We are convinced that the record made here, as and for justification of nonproduction at the trial of the two named witnesses, and of the evidentiary employment during the trial of testimony given by them at .the preliminary examination, comes within the constitutional ban of Barber and Berger and that it would never pass muster before the Supreme Court.

Reversed and remanded for new trial or separate trials, as the trial judge may be advised.

T. M. Kavanagh, C. J., and Black, Adams, T. E. Brennan, T. G. Kavanagh, Swainson, and Williams, JJ., concurred.  