People v. McIntosh

T. E. Brennan, J.

(dissenting). The decision of the Court of Appeals should be affirmed.

Included in the appendix in this cause is a letter from the State Appellate Defender to the Burlington, North Carolina, Police Department, seeking information concerning the whereabouts of the witness Jerry Wrenn, alias Danny Hill. Stamped on the bottom of that letter is the following:

"A search of our files fail to disclose any criminal data pertaining this subject
This is not supported by fingerprints
N. C. Dept, of Correction
Records Section
Ident. Division
Raleigh, N. C. 27603”

Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968), is to be distinguished. There, the whereabouts of the out-of-state witness was known.

"By the time petitioner was brought to trial some seven months later, Woods was incárcerated in a federal penitentiary in Texarkana, Texas, about 225 miles from the trial court in Oklahoma.”

Barber held that the prosecution had the duty to ask for the witness, quoting the dissenting opinion in the Circuit Court of Appeals:

"[T]he possibility of a refusal is not the equivalent of asking and receiving a rebuff.”

The Barber opinion goes on to point out:

*89"[T]he sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence.”

Berger v California, 393 US 314; 89 S Ct 540; 21 L Ed 2d 508 (1969), was an instance of an out-of-state witness who was at liberty. There was evidence in Berger that the out-of-state witness was in Colorado. His relatives and employer were contacted. Two telegrams were allegedly received from the witness. Still, no subpoena was issued to secure his appearance. The Court held that Barber v Page required consideration as to whether the state had made a good faith effort to secure the witness’ presence.

The Barber Court conceded that until the time of that decision, the general rule permitted the use of previous testimony of an out-of-state witness on the ground that the process of the court was ineffectual to secure his appearance.

Thereupon, Barber says:

"Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law.4”_

*90Of course, the Uniform Act to Secure Attendance of Witnesses from Without a State was not enacted in Michigan until after the trial in the case at bar. See 1970 PA 232, effective December 3, 1970.

Thus, Michigan was powerless to have obtained the attendance of Wrenn from North Carolina even if his whereabouts in that state had been known.

The conviction should be affirmed.

Levin and M. S. Coleman, JJ., did not sit in this case.

"For witnesses not in prison, the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings provides a means by which prosecuting authorities from one State can obtain an order from a court in the State where the witness is found directing the witness to appear in court in the first State to testify. The State seeking his appearance must pay the witness a specified sum as a travel allowance and compensation for his time. As of 1967 the Uniform Act was in force in 45 States, the District of Columbia, the Canal Zone, Puerto Rico, and the Virgin Islands. See 9 Uniform Laws Ann. 50 (1967 Supp.). For witnesses in prison, quite probably many state courts would utilize the common-law writ of habeas corpus ad testificandum at the request of prosecutorial authorities of a sister State upon a showing that adequate safeguards to keep the prisoner in custody would be maintained.”_