(concurring). I write separately because the United States Supreme Court’s decision in Roberts v. Russell1 making the Bruton2 rule retroactive cannot properly be read as conferring authority on state and Federal trial and appellate courts to decide case-by-case whether the Bruton rule will be given retroactive application based on the court’s evaluation of the seriousness of the risk that in the particular case at hand the issue of guilt or innocence was not reliably determined.
I.
In Roberts v. Russell the United States Supreme Court made retroactive in both Federal and state prosecutions its decision in Bruton. In Bruton the Court had ruled that the introduction of a confession of a codefendant who did not testify in the joint trial of Bruton and the nontestifying codefendant violated Bruton’s Sixth Amendment right *672to confront and to have the opportunity to cross-examine his accusers and that this encroachment was not cured by the judge’s instructions that the jury should disregard the confession as to Bruton.
In People v. Cartwright (1970), 26 Mich App 687, 693, 694, our Court declared that the Bruton rule would not be applied retroactively where it appeared that the admission of the nontestifying codefendant’s statement did not “present a serious risk that the issue of guilt or innocence may not have been reliably determined”. Cartwright’s language is adopted by my colleagues in this case in affirming Thomas Grant’s conviction.
My colleagues declare:
“In the instant case, defendant Thomas’ statement placed him with Grant at the time of the robbery, but was intended as an alibi. Bruton and Roberts both dealt with confessions and accusations of guilt. Defendant Grant neither attempted to controvert the statement nor sought an instruction limiting its use to Thomas. Instead, they both affirmatively rely on the statement, and the testimony of others, to prove their alibi defense. Under the circumstances, we hold that the use of the statement at trial did not ‘present a serious risk that the issue of guilt or innocence may not have been reliably determined.’ Roberts, supra, 295; People v. Cartwright (1970), 26 Mich App 687.”
In Roberts v. Russell, the United States Supreme Court stated unequivocally:
“This case presents the question whether Bruton is to be applied retroactively. We hold that it is.”
True, in explaining its decision, the United States Supreme Court referred to its earlier opinions outlining the factors considered in deciding whether a new rule of law should be made retroactive. The Court quoted from its decision in Stovall v. Denno *673(1967), 388 US 293, 298 (87 S Ct 1967, 18 L Ed 2d 1199):
“We have ** * * retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial.” (Emphasis supplied.)
The Court then went on to say that, despite a cautionary instruction, the admission of a nontestifying codefendant’s statement is “such a ‘serious flaw’. The retroactivity of the holding in Bruton is therefore required”. In making that statement the Court did not highlight the facts in Roberts v. Russell or in any way indicate that whether Bruton was retroactive would he decided case-by-case based on an evaluation of the seriousness of the flaw or the likelihood that the issue of guilt or innocence was or was not reliably determined in the case at hand. And, while the Court concluded its argument with the following statement: “And even if the impact of retroactivity may he significant, the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined”, we may not properly dissect its argument— whether we agree with it or not — and undermine and limit the clear holding in Roberts v. Russell that the Bruton rule is retroactive in all Federal and state prosecutions.
The Michigan Supreme Court and our Court have reversed pre-Bruton convictions without any attempt to evaluate the seriousness of the risk that in the case at hand the issue of guilt or innocence may not have been reliably determined.3 Other courts4 *674and the United States Supreme Court itself5 have reversed without any consideration of the issue which our Court has dissected out of Roberts v. Russell.
II.
In Chapman v. California (1967), 386 US 18, 23, 24 (87 S Ct 824, 17 L Ed 2d 705, 24 ALR3d 1065), reh den 386 US 987 (87 S Ct 1283, 18 L Ed 2d 241), the United States Supreme Court ruled that the denial of a Federal constitutional right could be harmless. In Harrington v. California (1969), 395 US 250 (89 S Ct 1726, 23 L Ed 2d 284), the Court stated its conclusion that the Bruton error in that case was harmless beyond a reasonable doubt. In this case also the Bruton error was harmless beyond a reasonable doubt.
When he was arrested, defendant Thomas told a police detective that on the day of the robbery he was at Truzella Grant’s home at about 2 p.m., that he left the home about 3 p.m. and drove Mamie home. Mamie, a cousin of defendant Grant, testified that she met the defendants at the Grant home *675at 10:30 a.m. on that day. The defendants left about noon and returned at 1 p.m. Thereafter they remained at the Grant home continuously until 3:30 p.m., at which time they drove her home, a journey of 30 to 40 minutes. When he was arrested, defendant Grant gave the detective a written statement that he was with “George in the a.m. I was with George when we drove Mamie home.”
Although the tendency of the Thomas statement was to place Grant with Thomas at the time of the robbery, 3 p.m., Grant said as much in the statement he gave the detective which was admitted in evidence at the trial without objection by Grant or attempt to modify or deny it. Manifestly, the Thomas statement was merely cumulative of Grant’s much more specific statement which placed Grant with Thomas during the period of time the robbery was committed.
III.
Following Grant’s and Thomas’ convictions, they filed a motion for a new trial on the ground that their alibi would he supported by the testimony of Norma Pelham, a proprietor of a funeral home. At a hearing on the motion Norma Pelham testified that Grant and Thomas drove in at 3 o’clock, the time of the robbery. There was testimony that the distance between the funeral home and the scene of the robbery was three or four miles.
Mrs. Pelham was present at the time of the trial but was not called by defendants’ trial lawyers. In denying the motion for a new trial, the judge declared that he was of the opinion that defendants’ trial lawyers investigated the facts and circumstances at the time and had some reason for not calling Mrs. Pelham as a witness. “We are pre*676eluded because of the attorney-client relationship from inquiring directly of counsel for the reason. * * * The court can only conclude that they had, as part of their trial strategy, good and sufficient reason for not calling this witness who was in court and was available.”
A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim of ineffective assistance of counsel. To the extent that his claim of inadequacy depends on facts not of record, he must make a testimonial record at the trial level in connection with a motion for a new trial which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately.6
If the defendants’ trial lawyers investigated the case and had a good reason for not calling Mrs. Pelham as a witness, their failure to call her would not constitute ineffective assistance.
On the issue of whether the defendants’ trial lawyers had a good reason, the trial judge was not precluded by the attorney-client relationship from asking them to explain their failure to call Mrs'. Pelham as a witness. To rule that such inquiry is barred would be to shield inadequate representation and unduly impede the establishment of a meritorious claim of ineffective assistance. A client who attacks the adequacy of the representation he received at his trial waives the attorney-client privilege to the extent necessary to permit an inquiry concerning the adequacy of his representation.7
*677It would appear from the record presented that the defendants’ trial lawyers did not call Mrs. Pelham because they preferred to build their defense around the testimony of Mamie who placed the defendants with her between 1 p.m. and 4:10 p.m., rather that on Mrs. Pelham’s version that the defendants were with her at her funeral home at 3 p.m.
The record does not reveal any attempt by the defendants’ appellate lawyers to question the defendants’ trial lawyers. The judge’s observations about the attorney-client privilege would appear to be unrelated to any effort to question the trial lawyers. In all events, the defendants have not established that the failure of the defendants’ trial lawyers to call Mrs. Pelham constituted ineffective assistance of counsel.
Roberts v. Russell (1968), 392 US 293, 294, 295 (88 S Ct 1921, 20 L Ed 2d 1100).
Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476).
See People v. Shirk (1970), 383 Mich 180; People v. Curley (1968), 14 Mich App 235; People v. Spells (1969), 16 Mich App 609; People v. Teal (1969), 20 Mich App 176; People v. Rollins (1971), 33 Mich App 1.
Commonwealth v. Poteet (1969), 434 Pa 230 (253 A2d 246); *674Stubbs v. State (Fla App, 1969), 222 So 2d 228; Garcia v. State (Fla App, 1969), 226 So 2d 17.
See Jones v. United States (1968), 392 US 299 (88 S Ct 2050, 20 L Ed 2d 1104); Pickens v. Oliver (1968), 392 US 300 (88 S Ct 2053, 20 L Ed 2d 1105); Santoro v. United States (1968), 392 US 301 (88 S Ct 2054, 20 L Ed 2d 1106); Nelson v. United States (1968), 392 US 303 (88 S Ct 2062, 20 L Ed 2d 1109); Hunt v. Connecticut (1968), 392 US 304 (88 S Ct 2063, 20 L Ed 2d 1110); Serio v. United States (1968), 392 US 305 (88 S Ct 2063, 20 L Ed 2d 1111); Williams v. Florida (1968), 392 US 306 (88 S Ct 2064, 20 L Ed 2d 1112); Bujese v. United States (1968), 392 US 297 (88 S Ct 2064, 20 L Ed 2d 1113); Hillman v. Florida (1968), 392 US 307 (88 S Ct 2065, 20 L Ed 2d 1114); McCarty v. Kansas (1968), 392 US 308 (88 S Ct 2065, 20 L Ed 2d 1115); Schneble v. Florida (1968), 392 US 298 (88 S Ct 2067, 20 L Ed 2d 1116); Hopper v. Louisiana (1968), 392 US 658 (88 S Ct 2281, 20 L Ed 2d 1347); Bates v. Nelson (1968), 393 US 16 (89 S Ct 50, 21 L Ed 2d 21), reh den 393 US 1008 (89 S Ct 490, 21 L Ed 2d 473); Jones v. Florida (1969), 394 US 720 (89 S Ct 1473, 22 L Ed 2d 675).
See People v. Jelks (1971), 33 Mich App 425.
“The plaintiffs waived the privilege when they charged their former attorney with incompeteney and unpreparedness.” Everett v. Everett (1947), 319 Mich 475, 484. Similarly, see Leverich v. Leverich (1954), 340 Mich 133, 137; 8 Wigmore, Evidence, § 2326, p 638, fn 4.