People v. Barbeaux

M. J. Kelly, P. J.

(dissenting). I agree with the majority that the trial judge abused his discretion in denying defendant’s motion to sequester the witnesses. People v Insley, 36 Mich App 593; 194 NW2d 20 (1971). However, I disagree with the majority’s finding of harmless error.

The justifications advanced for holding an abuse of discretion by the trial judge to sequester witnesses to be harmless er or have been that the witnesses involved testified substantially the same at the preliminary examination as they did at trial, People v Williams, 6 Mich App 412; 149 NW2d 245 (1967); or that there was no major dispute among the prosecution’s witnesses concerning the alleged crime, relative to defendant’s behavior. People v Insley, supra.

In the present case the defense was alibi. One of the two key prosecution witnesses, 14-year-old girls, did not testify in the previous trial that was declared a mistrial, nor did both witnesses testify at the preliminary examination. The credibility of these witnesses was the crux of defendant’s case. Although there was no major dispute in the testimony among the prosecution’s witnesses, there were discrepancies. The trial court’s failure to exclude the witnesses created the opportunity, at least arguably, for the witnesses to bolster each other’s testimony. To require a showing by defendant that the failure to sequester the witnesses resulted in such prejudice that the jury would have reached a different result as suggested by *331Insley, supra, is impossible.1 Rather, the better approach is that an error is not harmless if it is reasonably possible that in a trial free of the error complained of, one juror might have voted to acquit the defendant. See People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50, 55 (1975). Under the circumstances of the present case, I cannot say that the trial judge’s error was harmless beyond a reasonable doubt. See People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972).

Also, if this case were to be retried I would instruct the trial judge to exclude the references to pot parties and sale of marijuana unless the defendant is charged with and tried for controlled substance violations or contributing to the delinquency of minors.

I would reverse defendant’s conviction.

A panel of this Court has recently addressed this issue also by split decision, People v Cutler, 73 Mich App 313; 251 NW2d 303 (1977).