dissenting.
Finding the operative facts of State v. Johnson, 243 Or 532, 413 P2d 383 (1966), indistinguishable from the present facts, I would reverse and remand for a new trial.
I distill the following rule from Johnson: It is error for the prosecution to call a defendant’s alleged accomplice as a witness in a jury trial when (1) the prosecution has prior notice that the accomplice intends to refuse to testify, and (2) when the basis of the refusal is beyond the control of the defendant. Here the first element, prior notice, is conceded and there is no suggestion in the record that defendant had any control over Morgan’s refusal to testify or in any way participated in Morgan’s decision.
*116It is not significant that the witness in Johnson invoked a valid self-incrimination objection, while, according to the majority, Morgan could make no such claim. The concern in Johnson was not with the protection of a constitutional right; instead the concern there was "the calling of the witness can be accounted for only on the basis of a purpose to prejudice the jury.” 243 Or at 539. The danger of prejudice is the same regardless of the basis of the accomplice’s refusal to testify.
I fail to see how the plea bargain involved in the present situation is a difference that distinguishes Johnson and produces a different result.
As for the cautionary instruction, Johnson requires a different approach:
"* * * If the state is at any time uncertain whether or not a witness will refuse to testify, this can be easily determined before the trial court in the absence of the jury and the appearance of purposeful prejudice avoided.” 243 Or at 539.
I understand this to mean that once it has been determined that a witness will refuse to testify, the trial court should instruct the jury that the witness is unavailable, and no inference for or against either party should be drawn from that unavailability.
Such an approach both avoids the danger of prejudice that was the basis of the Johnson decision, and the gamesmanship and posturing inherent in either party’s trying to use the unavailability of a witness as a jury argument against the other.
With controlling Oregon authority on point, there is no need to examine Hawaii case law. But I note that in State v. Brooks, 44 Hawaii 82, 352 P2d 611 (1960), there is no indication that the prosecution had any advance notice the witness would refuse to testify. Moreover, so far as I can determine from the Brooks decision, if the Hawaii court were faced with the Johnson situation, it would reach the opposite result.
I respectfully dissent.