(dissenting).
Recent History
In People v White, 401 Mich 482; 257 NW2d 912 (1977), on which the majority relies, the self-confessed murderer, twice convicted, twice reversed, sought the shelter of the exclusionary rule, preMiranda, regarding involuntary confessions. Three separate recorded confessions plus one broadcast on network TV were suppressed. The officer’s testimony that he found the loot after "conversations with” defendant and his accomplice was likewise suppressed. This in spite of the high court’s opinion that an incriminating statement made by the defendant to a newsman and broadcast on television for the world to see "would in most cases, weigh heavily in favor of a conclusion of voluntariness”.
The defense produced witnesses that defendant and the victim were friends. In rebuttal the people produced contrary hearsay evidence. In construing the • people’s rebuttal as error the defense was unchallenged for bringing immaterial, collateral, conclusionary evidence inviting the error.
It seems anomalous that harmless error was not invoked or discussed. Does it signify a consensus which repudiates the harmless error rule? GCR 1963, 529.1.
Johnny Dortch was convicted on the preliminary examination testimony of Terry Langford, the killer-for-hire. Adoise White was convicted on the prior trial testimony of his accomplice Charles Hodges. In each case the accomplice had second thoughts after a plea bargain and repudiated his former testimony. The applicable law until White’s third and last reported opinion governed Dortch’s *193trial. That was People v White, 65 Mich App 56; 236 NW2d 583 (1975) (hereinafter White #2), released four months before Dortch was tried. The trial court was bound by the rule that:
"Where a witness has promised to testify for a party in accord with testimony given at a previous trial, thereby inducing the calling party to rely thereon, and has informed the calling party of a change in intentions after the trial has begun, if the trial judge determines such witness to be adverse at the time he takes the stand, the calling party may introduce the prior recorded testimony and prior inconsistent statements. of the witness for impeachment purposes.” 65 Mich App at 62.
What was at hand in the White case and what is at hand in this case was in-court sworn testimony, where the defendant was confronted by the witness and represented by an attorney who was allowed and undertook cross-examination. The proofs appear to show beyond all doubt that Adoise White and Charles Hodges tied Robert Green’s hands behind his back, stabbed and slashed him 42 times, and shot him at the base of the head as a result of which he expired. The proofs here show beyond reasonable doubt from this record that Johnny Dortch hired Terry Lang-ford to kill and murder seven-year-old Johnny Freeman by shotgun or otherwise for insurance proceeds, and that Langford did so, throwing in the execution of Brenda Freeman to eliminate a witness.
The present Michigan rule of evidence, MRE 801, Hearsay; Definitions, says:
"(d) Statements which are not hearsay. A statement is not hearsay if—
"(1) Prior statement of witness. The declarant testified at the trial or hearing and is subject to cross-examination concerning the statement, and the state*194ment is one of identification of a person made after perceiving him * * *
The rules of evidence were taken verbatim from the Federal Rules of Evidence when proposed. The Federal rule follows:
"(d) Statements which are not hearsay. A statement is not hearsay if—
"(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him * * * »
Somewhere along the line the committee or the Supreme Court eliminated clauses (A) and (B). So far as one can determine White #2, supra, was not considered or discussed, or if considered and discussed was not mentioned. Did the committee foresee the reversal of 65 Mich App 56 by the Supreme Court or did the Supreme Court become convinced by its consideration of White #2, supra, that the Federal rule was too broad? It would appear that Justice Ryan’s restrictive view was adopted. What is admissible under the Federal rule is prohibited under that too narrow view. The result favors the recalcitrant witness.
In this case Terry Langford took the witness stand and operated his forgettery. He didn’t recall anything. The trial court allowed defense counsel to cross-examine him and defense counsel elicited the testimony that Langford did not kill the Free-mans, there was no conspiracy, and his prior testimony was incorrect, was wrong, was a lie. The trial judge allowed the preliminary examination *195testimony under MCL 768.26; MSA 28.1049. To do otherwise would have condoned perjury and sanctioned a miscarriage of justice.
The trial judge made a reasonable and legally applicable decision in the instant case. There was no error, harmless, or otherwise. The rule of the Court of Appeals in White #2, supra, was followed. It would be ludicrous to argue that the Supreme Court White, supra, did not change the law. Neither could retroactivity be supported. The Federal rule would have to be unconstitutional to support that logic. The pronouncement of new rules for the trial of cases should be made prospectively to the legal community, otherwise a trial takes on the aspects of a shell game.
Past History
In People v Pickett, 339 Mich 294; 63 NW2d 681; 45 ALR2d 1341 (1954), the learned Justice George E. Bushnell writing for a unanimous Court discussed the question of the admission of prior testimony of a state witness, vis-a-vis the right of confrontation and due process of the Sixth and Fourteenth Amendments to the United States Constitution and the comparable provisions in the Michigan Constitution (1908), then cited the statute which is the focal point of this controversy. The statute is the same word-for-word as it was then. MCL 768.26 (formerly 1948 CL 768.26); MSA 28.1049:
"Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.”
*196The witness Arney had testified a number of times before the grand jury and he had given testimony at the preliminary examination under a grant of immunity. At the Pickett trial however he advised the court that he was going to refuse to testify on his Fifth Amendment rights and questioned the validity of the prior grant of immunity. This on advice of counsel. Procedurally the method used was capsulized by Justice Bushnell:
"Arney’s counsel stated that in the event the court should overrule his or his client’s objection, that he had advised Arney to refuse to testify and take the position that he would test the validity of the court’s ruling on the contempt proceeding which might follow. The jury was then recalled, Arney was sworn and questioned to the point of refusal. The jury was excused and the court ruled that the. immunity order adequately protected the witness and ordered him to proceed to answer. Arney and his attorney refused to respect the ruling. The ensuing colloquy was concluded by the court with the statement: 'Well, is there anything either side thinks should be done further in the presence of the jury now?’ The record shows that to this question there was no response.
"The people then stated that they would offer in evidence the transcript of Arney’s testimony at the examination. The defendants objected, raising the question of the right of confrontation, and stated that the witness was available. The court overruled this objection, recalled the jury and explained to it that upon Arney’s refusal to testify, his testimony given at the examination in the cause had thereby become admissible.” 339 Mich at 304.
Thereafter the preliminary examination testimony was read to the jury by the prosecutor. Justice Bushnell couched the question in terms of a recalcitrant witness who had taken the Fifth Amendment after having previously been granted *197immunity. Obviously this is not the precise question before us because we do not have the immunity grant situation. However if availability is the key to the door of prior testimony then we have the following from Justice Bushnell:
"Availability in the sense used by Gillespie must be broadly construed in the context in which it is found. This word does not mean physical presence alone, but is definitive of 'having sufficient force or efficacy for the object,’ which object in this instance is the attainment of justice through the admission of the witness’s former testimony.
"The statute which permits the use of former testimony authorizes that use by the prosecution, 'whenever the witness giving such testimony cannot, for any reason, be produced at the trial.’
Under the facts recited, Arney, by invoking the privilege against self-incrimination, although having been granted immunity, made himself as 'unavailable’ as if he were deceased or absent from the jurisdiction.
"Defendants, of course, had the constitutional right to be confronted by the witness. This right was accorded them at the preliminary examination when they had ample opportunity to cross-examine Arney who was there a witness confronting them. They may not be heard now to complain on this ground. People v. Schepps, 217 Mich 406 [186 NW 508] (21 ALR 658) [1922], In re Rudnik, 338 Mich 577 [61 NW2d 597 (1953)], People v. Myers, supra, [239 Mich 105; 214 NW 130 (1927)], People v. Moore, supra, [306 Mich 29; 10 NW2d 296 (1943), cert den, 321 US 787; 64 S Ct 783; 88 L Ed 1078 (1944)], People v. Hunley, supra, [313 Mich 688; 21 NW2d 923 (1946)], and People v. Johnston, supra, [328 Mich 213; 43 NW2d 334; 20 ALR2d 1001 (1950)].
"This Court has never departed from the rule that the constitutional rights of an accused are not abridged where the accused at any stage of the proceedings, upon the same accusation, has been once confronted by the witness against him, with an opportunity to cross-exam*198ine that witness. 1 Gillespie, Michigan Criminal Law & Procedure (1st ed), § 474, p 581.” 339 Mich at 306.
Note that the immunity question slides out of focus. Why should it not? How is the immunity of the witness important to the constitutional rights of the defendant? The opinion of the Supreme Court in People v White, 401 Mich 482, 510; 257 NW2d 912 (1977), cursorily mentions People v Pickett, supra, declaring in the text that Pickett is inapplicable because the (White) witness was physically available at trial and had changed his testimony. The accompanying footnote 8 at the following page, 511, provides:
"On the other hand, if, upon a new trial, Hodges is for some reason unavailable, his testimony at the first trial would be admissible under current law as former testimony. People v Pickett, 339 Mich 294; 63 NW2d 681 (1954). If the witness is present but testifies to a lack of memory, claims a privilege, or refuses despite an order of the court to testify, he may nevertheless be deemed unavailable and the former testimony rule will apply just as if he could not be present. Proposed Michigan Rules of Evidence 804(a), 804(b)(1).”
Witness Langford did precisely that. He testified "to a lack of memory” on direct examination. It was only after his preliminary examination testimony was read to the jury that his memory improved and he denied the crime.
It would appear that any rule emerging from the Supreme Court White opinion is somewhat elusive. If the witness were to testify on retrial to exculpate White he can be impeached. If he refuses or forgets he is unavailable and- the prior testimony can be introduced. In the opinion which declares the error the future use is condoned.
In the recent opinion of People v Castaneda, 81 *199Mich App 453; 265 NW2d 367 (1978), the panel joined in allowing preliminary examination testimony under circumstances markedly similar to White, Dortch and Pickett. One Velasquez incriminated Castaneda at the preliminary examination then later, on motion to withdraw his plea, Velasquez repudiated his testimony. The Court held that,
"MCLA 768.26; MSA 28.1049 clearly permits testimony of a witness at a preliminary examination to be read at the trial.
"The trial judge properly ruled that in asserting his Fifth Amendment privilege, Velasquez had made himself 'unavailable’ to testify at trial.” 81 Mich App at 458.
People v Pickett, supra, was cited in support. Velasquez took the stand and asserted the Fifth Amendment on most questions but he answered some very critical questions, two of which totally exculpated the defendant. He was asked:
”Q. Do you really want to take the Fifth Amendment, now, Freddy, or do you want to clear Lupe’s name?
"A. I would like to clear his name.
”Q. Will you tell me sir, did he have anything to do with that dope transaction?
’A. No sir.”
Although the words substantive evidence are not used, it appears the use was not limited to impeachment. Perhaps the reader will be able to equate Castaneda with page 510 of the Supreme Court White, supra, and footnote 9. The writer cannot.
It seems to me that whether one calls the evi*200dence substantive or impeaching, if the recalcitrant witness is available physically, in court, and is confronted with his prior testimony as in White, as in Dortch, as in Castaneda, the jury has the greater benefit of observing the witness than if he were truly physically unavailable.
I would affirm.