dissenting. The majority concedes that the trial judge properly held that the witness was unavailable to testify. Nevertheless, the majority concludes that the trial court erred in admitting in evidence the prior recorded testimony presented by this witness during the preliminary hearing, at which appellee and his attorney were present. This rather incongruous result is reached by indulgence in conjecture relative to the trial tactics of defense counsel, and is supported only by the highly subjective opinion that “* * * the mere opportunity to cross-examine at the preliminary hearing can not be said to afford confrontation for purposes of the trial.”
The decision of the majority is not compelled by either Barber v. Page, supra, or California v. Green, supra. The holding in Barber was obviously based upon the state’s failure to make a good-faith effort to produce its witness at trial, since the high court recognized that “* * * there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable * * Barber, at pages 725-726. Similarly, in the course of holding that the confrontation clause was not violated by ad*200mission in evidence of the prior recorded testimony of a later reluctant witness, the Supreme Court, in California v. Green, supra, at page 165, observed that “* * * respondent had every opportunity to cross-examine * * * [the witness] as to his statement.” Furthermore, in Pointer v. Texas, supra, wherein the high court held that the prior recorded testimony of an unavailable witness could not be admitted in evidence at trial because counsel had not been appointed to assist the defendant at the preliminary hearing, it was noted that “* * * [t]he case before us would be quite a different one had * * * [the witness’] statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Pointer, at page 407.
In my opinion the Sixth Amendment to the United States Constitution does not prohibit, under the facts of the instant cause, the admission in evidence of the witness’ recorded testimony. As was stated in United States v. Allen (C. A. 10, 1969), 409 F. 2d 611, 613, “* * * the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity. * * * The extent of cross-examination, whether at a preliminary hearing or at a trial, is a trial tactic. The manner of use of that trial tactic does not create a constitutional right/’
Accordingly, I would reverse the judgment of the Court of Appeals.
Herbert and Locher, JJ., concur in the foregoing dissenting opinion.