People v. Dye

427 N.W.2d 501, 431 Mich. 58

• Court: Michigan Supreme Court
• Decided: August 2, 1988
• Docket: 77166, (Calendar No. 11)
• Status: Published

Opinions

Levin, J.

Paul Dye was convicted on retrial of two counts of first-degree murder¹ and two counts of possession of a firearm during commission of a felony.² Dye’s first trial was declared a mistrial, with the jury voting eleven to one to acquit him on the first-degree murder charges.³ At the first trial the testimony of three witnesses — fellow members of a motorcycle club — provided the only evidence that Dye was the killer. At Dye’s retrial the prosecution did not produce these three witnesses. The trial court allowed assistant prosecutors to read the witnesses’ earlier testimony to the jury.

This appeal presents two questions. The first is whether the prosecution showed due diligence in attempting to produce the three witnesses for the second trial. The three witnesses were in protective custody immediately preceding and until they completed their testimony at the first trial, and were then released. Subsequent efforts to locate the witnesses for the second trial were tardy and incomplete. We reverse and remand for a new trial.

The second question concerns evidentiary issues. The prosecution in its case in chief elicited testimony from the three witnesses and Richard Troher that Dye had not accused anyone else of committing the killings and had failed to make a statement to the police. On retrial the prosecution may not in its case in chief ask Troher whether Dye accused another of the killings, or inquire on direct examination whether Dye made a statement to the police.

i

Early in the morning of August 29, 1982, two women were killed in the clubhouse of the Forbidden Wheels Motorcycle Club. They had each been shot through the head. Their bodies were dumped on the curb of a residential street and discovered there by early morning commuters.

Four club members were in the clubhouse at the time of the murders. Dye, Bruce Seidel, James Dawson, and Steve Stever all admitted to helping clean up the clubhouse after the killings. Seidel, the prosecution’s chief witness, accused Dye of killing the women. Dye accused Seidel of being the killer.⁴ Dawson and Stever, who had been in an upstairs apartment apparently asleep at the time of the killings, testified that Seidel walked upstairs, awakened them, and told them that Dye had just killed two women. Seidel, Dawson, and Stever further testified that after Seidel and Dye dumped the bodies, all four met in Stever’s garage, where Dye admitted to the killings.⁵

Seidel, Dawson, and Stever testified under a limited grant of immunity.⁶ All three left the state after the killings, and returned to Michigan to testify at the first trial. Upon their return they were kept in protective custody until after they completed their testimony to prevent other "bikers” from harming them. The prosecution failed to produce any of the three to testify at the second trial.

II

A

The Sixth Amendment of the United States Constitution, and art 1, § 20 of the Michigan Constitution of 1963, provide in part that in all criminal prosecutions the accused shall "be confronted with the witnesses against him . . . .”⁷ The United States Supreme Court has emphasized that the purpose of the Confrontation Clause is to provide for a face-to-face confrontation between a defendant and his accusers at trial.⁸ 9This confrontation is an important right of the defendant because it enables the trier of fact to judge the witnesses’ demeanors. The Court in Ohio v Roberts, 448 US 56, 63-64; 100 S Ct 2531; 65 L Ed 2d 597 (1980), declared:

[T]he Clause envisions "a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. ”[⁹]

Demeanor evidence is important. As the Third Circuit Court of Appeals noted in Virgin Islands v Aquino, 378 F2d 540, 548 (CA 3, 1967):

Demeanor is of the utmost importance in the determination of the credibility of a witness. The innumerable telltale indications which fall from a witness during the course of his examination are often much more of an indication to judge or jury of his credibility and the reliability of his evidence than is the literal meaning of his words. Even beyond the precise words themselves lies the unexpressed indication of his alignment with one side or the other in the trial. It is indeed rarely that a cross-examiner succeeds in compelling a witness to retract testimony which is harmful to his client, but it is not infrequently that he leads a hostile witness to reveal by his demeanor — his tone of voice, the evidence of fear which grips him at the height of cross-examination, or even his defiance— that his evidence is not to be accepted as true, either because of partiality or overzealousness or inaccuracy, as well as outright untruthfulness. The demeanor of a witness, as Judge Frank said, is "wordless language.” Broadcast Music, Inc v Havana Madrid Restaurant Corp, 175 F2d 77, 80 (CA 2, 1949).

A transcript of prior testimony may nevertheless be offered in evidence upon a showing that the witness is unavailable and that the testimony bears satisfactory indicia of reliability.¹⁰_

To establish the witness’ unavailability, the proponent* ¹¹ must establish that he has made a diligent, good-faith effort to obtain the witness’ presence at trial.¹² This is a substantial requirement. "[I]f there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.”¹³

In Motes v United States, 178 US 458; 20 S Ct 993; 44 L Ed 1150 (1900), the United States Supreme Court held that police negligence barred a finding of good-faith diligent effort. A codefendant in a murder prosecution had provided the primary evidence against the other defendants in testimony at a preliminary examination. Prior to trial he escaped due to the negligence of the police. At trial the judge admitted the preliminary examination testimony as substantive evidence against the remaining defendants. The United States Supreme Court reversed, stating:

We are unwilling to hold it to be consistent with the constitutional requirement that an accused shall be confronted with the witnesses against him, to permit the deposition or statement of an absent witness (taken at an examining trial) to be read at the final trial when it does not appear that the witness was absent by the suggestion, connivance or procurement of the accused, but does appear that his absence was due to the negligence of the prosecution. [178 US 474.]

B

Whether the prosecution made a diligent, good-faith effort to produce missing witnesses is an evaluation that depends on the particular facts of each case. The record in the instant case indicates that, in the circumstances of this case, the prosecution failed to make such a diligent, good-faith effort to produce Seidel, Dawson, and Stever.

Seidel, Dawson, and Stever had been difficult to locate for the first trial. The officer in charge, Kuhnlein, testified that when the three were released, he knew that each was going out of state. All three had an incentive to go into hiding. They were in protective custody during the first trial to prevent other "bikers” from harming them for testifying against Dye. This threat remained after their release. Additionally, the witnesses may have feared prosecution; they had been given only limited immunity. All three were admitted accomplices after the fact in the murders. Stever and Dawson were suspects in a related firebombing.¹⁴

The mistrial was declared on March 17, 1983. On May 13, 1983, the court set Dye’s retrial for August 22, 1983. As of May 13, the witnesses had been released for approximately two months. During this two-month period, the prosecution had made no effort to relocate Seidel, Dawson,¹⁵ or Stever even though the prosecution knew that the witnesses were needed, they had expressed an intention to leave the state, and had incentives to go into hiding. And once the prosecution learned of the retrial date, its efforts to produce the witnesses were, in the circumstances of this case, tardy and incomplete. These efforts are detailed below.

l

An assistant prosecutor testified that during March, April, and early May of 1983, Dawson repeatedly telephoned to ask whether and when Dye was going to be released on bond. Because Dawson had testified against Dye, he may have feared Dye would seek revenge. Dye was released on June 17, 1983. The prosecution did not attempt to communicate with Dawson until four weeks after Dye’s release. The prosecution telephoned Dawson on July 12 and learned that his telephone line had been disconnected. No investigation into Dawson’s whereabouts, however, was conducted until August 5 — three weeks later, and just seventeen days before the retrial date — when the prosecution attempted to serve a subpoena on Dawson at a Detroit address.

The woman answering the door reported that she had purchased the house from Dawson three weeks before and that she had no idea where he was. It does not appear that any effort was made to communicate with the lawyer, real estate agent, or bank involved in the house sale. Had the prosecution investigated immediately upon learning on July 12 that Dawson’s phone had been disconnected, they would — according to the date given by the woman who purchased the house — have arrived at the house before the sale was completed and while Dawson might have still been in the area.

Dawson’s wife was a postal employee.¹⁶ Through her employer the prosecution obtained a forwarding address in Cucamonga, California. On August 5, 1983 — -just seventeen days before Dye’s retrial— the prosecution mailed to the California district attorney for Cucamonga a certificate under the uniform act to secure the attendance of witnesses from without a state in criminal proceedings,¹⁷ requesting that the prosecutor serve and arrest Dawson. The assistant prosecutor did not communicate with the California district attorney again until August 16 — less than a week before Dye’s retrial — when he learned that the California district attorney had received the certificate but had not yet served Dawson. The record does not indicate that the California district attorney had even begun looking for Dawson. Also on August 16, the assistant prosecutor mailed a photograph of Dawson to the California district attorney. On August 18, four days before Dye’s retrial, the California district attorney telephoned and said that while Dawson had apparently been living at the Cucamonga address, he was not there at the time the investigators visited. They thought that Dawson had a job lead in the area and said they were going to continue trying to locate him. There is no evidence of any further efforts by the California authorities or of further communication between the prosecution and the California district attorney after the August 18 phone call.¹⁸

It thus appears that although both Dawson and his wife were living at an identified address in California, the only effort of record to locate him was a single visit by California investigators to that address. The record does not indicate on what day or at what time that visit occurred. There is no reason to conclude that further efforts to locate Dawson or his wife at that address would have been of no avail.

The prosecution did not attempt to communicate with Seidel, the sole eyewitness, until June 2— almost three months after Seidel’s release and almost a month after the date for Dye’s retrial had been set — when it sent a request for information to the police department of Mason City, Iowa, where Seidel had previously lived with his mother.

The Mason City police telephoned Seidel’s mother and reported that, according to his mother, Seidel was working out of town and that when he returned his mother would give him the message to call the assistant prosecutor. This request was apparently repeated on June 22, and the assistant prosecutor apparently received the same response. On July 7, the prosecution telephoned Mrs. Seidel directly. She made the same response she had made to the Mason City police.

Although it had clearly been established by July 7 that Seidel was missing, there was no further communication with his mother or any visit to his mother’s home until approximately six weeks later —about August 16, less than one week before Dye’s retrial — when the prosecution apparently called the district attorney for Mason City and learned that he had received a certificate forwarded by the prosecution on August 5 under the uniform act for Seidel.¹⁹ Some time after receipt of the certificate members of the Mason City police visited the house, and it appears that they believed that Seidel was living there.

Also on August 16, the prosecution mailed a photograph of Seidel to the local district attorney. There is no evidence of any further communication between the prosecution and the local district attorney.

It does not appear that the Mason City police made more than one visit to the Seidel home. Seidel was the prosecution’s most important witness. Yet the prosecution did not send an investigator to Mason City or ask the Mason City police to exert further efforts to locate him.

The prosecution did not suggest checking, nor did the local police — as to Seidel, Dawson, or Stever — check, locales frequented by bikers. Seidel was in fact arrested by Iowa police on another charge one week after Dye’s retrial ended.

Stever apparently left the state several days after being released.²⁰ The prosecution did not attempt to locate Stever until August 1 — four and a half months after the mistrial was declared and just three weeks before Dye’s retrial was scheduled to begin — when Officer Kuhnlein attempted to serve Stever with a subpoena at a local home address. The man who answered the door was renting the house, said that he had not seen Stever for some time, and thought that he had gone either to Wisconsin, Tennessee, or California. The tenant was about to leave because he had learned that the house was to be repossessed.

On August 5, seventeen days before Dye’s retrial, the prosecution mailed to the Livingston, Tennessee, district attorney a certificate under the uniform act for Stever. Stever had traveled from Livingston to Detroit to testify at the first trial, but there was little or no reason to believe that he had returned to Livingston. Dawson’s mother told Kuhnlein that Stever almost certainly had not returned to Tennessee.

On August 16 the assistant prosecutor telephoned the Livingston district attorney and learned that he had received the certificate, but had not yet served Stever. The record does not indicate that the Livingston district attorney had begun looking for Stever. There is no evidence of any further communication between the prosecution and the local district attorney.

On August 22, during the afternoon session of the due diligence hearing, Officer Kuhnlein testified that after his direct testimony that morning, he telephoned Detroit Edison and learned that Stever had been receiving electrical service at bis Michigan address under the name of "Donald” Stever. There is no evidence that the prosecution relayed this information to the Livingston district attorney or followed up on it in any other way.

There is no evidence that the prosecution communicated with the repossessing bank to determine if it had any forwarding addresses or could provide other leads to persons who may have known Stever’s whereabouts. The tenant said that his previous month’s rent was collected by a person who he thought was a member of Stever’s family. There is no evidence of an effort to locate this person.

The prosecution had not obtained the names or addresses of any of Stever’s relatives other than the address of his mother. And, although it had Stever’s mother’s address, it did not attempt to communicate with her. The prosecution had the name of Stever’s girl friend — who had reportedly left with him — but there is no evidence of any attempt to communicate with her friends and relatives.

c

The Illinois Court of Appeals in People v Payne, 30 Ill App 3d 624; 332 NE2d 745 (1975), determined that the prosecution had failed to exercise good-faith diligence in attempting to locate a missing witness. Jerome Payne was tried for robbing Oscar Fallin. A mistrial was declared because the jury was unable to agree. On retrial, Payne was convicted. Fallin testified at the first trial, but did not appear at the retrial. The transcript of his previous testimony was read to the jury.²¹

The prosecution made numerous attempts to locate Fallin. The chief investigator noted that he made "20 to 25 attempts” to locate him before Payne’s retrial. After detailing the prosecution’s substantial efforts, the court declared that they were insufficient. Not only had the prosecution been tardy and incomplete in its efforts to find Fallin after the first trial, it had known that Fallin had been difficult to find for the first trial and yet had taken no measures to assure his return for the retrial. "The State was aware that Fallin had been a difficult witness to locate for the first trial, but took no steps to insure his appearance later even though it knew that his testimony was essential to a conviction and that the case would be tried again.” Payne, supra, p 629. The prosecution’s failure to take adequate measures to assure that a vital witness against the defendant would appear at a retrial barred a finding of good-faith due diligence.²²

People v Schepps, 217 Mich 406; 186 NW 508 (1922), describes the sort of thorough efforts that constitute due diligence. The issue at trial was whether Schepps was one of a group of robbers. The preliminary examination testimony of Florence Earl, although neither conclusive nor the sole evidence identifying Schepps as one of the robbers, was highly convincing. Earl was subpoenaed but did not appear at trial. The court continued Schepps’ trial a number of times (for an unknown number of weeks) while the prosecution attempted to find her. Officers searched Detroit and followed up rumors that she had moved to Canada, searching Windsor and interviewing her parents in Ontario, and her two sisters "found living elsewhere.”

This Court held that these efforts were sufficient to enable the prosecution to use Earl’s preliminary examination testimony at trial. In contrast with the instant case, the trial was continued a number of times and the prosecution promptly followed all leads, traveling itself to a foreign jurisdiction to look for the witness.

D

Here, as in Payne, the prosecution knew that Seidel, Dawson, and Stever had been difficult to locate for the first trial, that they had left the state and had an incentive to go into hiding.

Subsequent belated and incomplete efforts did not rise to the level of good-faith due diligence. The efforts to locate each should have begun earlier. The prosecution knew on May 13 that Dye’s retrial was set for August 22, but did not attempt to locate Seidel until one month later, did not attempt to locate Dawson until two months later, and did not attempt to locate Stever until almost three months later. The initial attempts all failed, yet the prosecution did not increase its efforts.

The prosecution relied on the local Cucamonga, Mason City, and Livingston police to do the investigatory work, but was tardy in providing the local police with sufficient information and did not follow up and press the local police to act. Photographs of the witnesses were mailed less than a week before the retrial.

Certificates were sent under the uniform act, but in themselves these did not obligate the local police to undertake a diligent search. The uniform act is a mechanism for the production of witnesses; it does not oblige local police to search for a missing witness. Invocation of the uniform act’s mechanism would have become important had Dawson, Seidel, or Stever been found out of state. The act would then have enabled the local police to produce the witness for the prosecutor in Michigan. Invocation of the uniform act’s production mechanism, however, is not a substitute in itself for a diligent effort to find the witnesses.²³

The prosecution’s obligation to make a diligent good-faith effort is nondelegable. If the prosecution relies on out-of-state police to follow particular leads, and they make a diligent good-faith effort to find and produce the witness, then their efforts may discharge the prosecution’s obligation. In the instant case, however, there is no evidence that the out-of-state police made diligent good-faith efforts. The Mason City police believed Seidel was living at home with his mother, but apparently only visited the home once. The Cucamonga police believed Dawson was living and working in the area, yet apparently made only one visit to his suspected residence and did not attempt to find where his employment lead may have led. The efforts did not constitute good-faith due diligence.

The prosecution should have begun the searches earlier, pressed local officers to engage in the searches, and perhaps, as in Schepps — in light of the inadequate efforts of the local police — sent its own investigator. The prosecution undertook none of these steps. Such "affirmative measures” may well have produced the witnesses.

hi

Dye asserts that two lines of inquiry by the prosecution in its case in chief were improper. The first was questions put to Seidel, Dawson, Stever, and Richard Troher²⁴ whether Dye had in their presence accused anyone else of committing the killings. The second was questions put to these four witnesses whether Dye had accompanied them to make a statement to the police.

We agree with Dye that questioning Troher whether Dye had accused anyone else of the killings, and questioning all four witnesses whether Dye had made a statement to the police, was improper. It would not have been "natural,” within the meaning of People v Collier, 426 Mich 23; 393 NW2d 346 (1986), for Dye to have made such accusation in Troher’s presence or to have made a statement to the police. On remand, these questions should not be asked during the prosecution’s case in chief.

Questioning Seidel, Dawson, and Stever whether Dye accused anyone else of the killings, however, was not improper. Their testimony that Dye failed to accuse anyone else of the killings correlated with their testimony that Dye had confessed the killings to them. This questioning may be allowed on remand.

Dye testified that he did not kill the two women. He said that Seidel killed the women, and that he had been sleeping and was awakened by the shots.²⁵ By his own admission, however, Dye was an accessory after the fact. He participated with Seidel, Dawson, and Stever in cleaning up the clubhouse and joined Seidel in disposing of the bodies.

Prior to his arrest, Dye did not speak with the police of his involvement in the killings. Dye did not tell police that Seidel was the killer.

In People v Collier, supra, this Court adopted the evidentiary standard set forth in Commonwealth v Nickerson, 386 Mass 54; 434 NE2d 992; 35 ALR4th 722 (1982). As a general rule, the prosecution cannot impeach a defendant on the basis of his prearrest silence. "Allowing impeachment with prearrest silence suggests that a defendant has a duty to incriminate himself and burdens his right to testify on his own behalf.” Collier, supra, p 34. This is inappropriate because " 'it is a generally held notion that one does not have to say anything to the police and that what one does say may be used against him.’ ” Id.26

In Collier, this Court held that the prosecution’s impeachment of defendant Collier’s prearrest silence was proper. Collier, according to his testimony, had acted in self-defense. He "testified that he was in fact the victim of an armed robbery rather than a perpetrator of an assault.” Id., p 34. The Court concluded that it would have been natural for Collier to contact the police:

[W]e believe it is entirely natural and expected that one who has been robbed under the circumstances related by the defendant would report the crime to the police. Defendant knew the identity of the robber and the location of the robbery. It would have been natural for him to report the crime to the police, to have the assailant arrested, and to retrieve his property. [Id., pp 34-35.]

Where it would not have been natural for the defendant to contact the police — where doing so may have resulted in the defendant incriminating himself — -the prosecution cannot properly comment on the defendant’s failure to contact the police.²⁷

We conclude that it would not have been natural for Dye to have made a statement to the police because if he had done so such a statement would have tended to incriminate him as an accessory after the fact.

Nor would it have been natural for Dye to have accused someone else in Troher’s presence. According to Dye, he was an accomplice after the fact; hence an accusation of Seidel would also have incriminated Dye. Further, there was no apparent incentive for Dye to have, in Troher’s presence, accused Seidel. An accusation of Seidel by Dye in Troher’s presence would not have aided Dye.

Questioning Seidel, Dawson, and Stever concerning Dye’s failure to accuse anyone else of the killings, however, was not improper. In contrast to Troher, Seidel, Dawson, and Stever testified that Dye had confessed to them that he had committed the killings. Their further testimony that Dye had not accused anyone else of the killings correlated with their testimony concerning his confession. If Dye had in fact confessed to Seidel, Dawson, and Stever that he was the killer, he would not have accused anyone else of the offenses. This questioning merely restated in a different form the properly admitted testimony concerning Dye’s confession.

Questioning the three witnesses concerning Dye’s failure to make a statement to the police,²⁸ however, did not reciprocate their testimony that Dye had confessed. Applying the Collier analysis, it would not have been natural for Dye to have made a statement to the police for the reasons set forth above: Dye, according to his own testimony, was an accomplice after the fact, and any statement that he made would have incriminated him.

Because it would not have been "natural” for Dye to have made a statement to the police, on remand the prosecution should not in its case in chief ask questions concerning or adverting to Dye’s failure to make a statement to the police.

E

Dye on direct examination testified that he did not make a statement to the police because his attorney advised him not to do so.²⁹ The prosecution asserts that because Dye offered this testimony, the prosecution could have subsequently offered impeaching testimony, and therefore — even if the prosecution improperly included the testimony in its case in chief — any error was harmless. On these facts, the prosecution’s argument is circular.

In all events, on remand Dye should be able to avoid misunderstanding concerning his intentions by an affirmative statement in limine whether he intends, absent inquiry by the prosecution in its case in chief, either to claim that his prearrest conduct tended to indicate his innocence, or to explain why he did not make a statement to the police, or to refer to his statement to the arson investigators.³⁰

We reverse the decision of the Court of Appeals and remand for a new trial.

Cavanagh and Archer, JJ., concurred with Levin, J.

1 MCL 750.316; MSA 28.548.

2 MCL 750.227b; MSA 28.424(2).

3 In the retrial, the jury twice asked the trial judge to declare a hung jury. Each time the judge told the jury to continue their deliberations.

4 Dye and Seidel spent the evening together in a bar and then came to the clubhouse. Shortly after they arrived, the two victims rang the doorbell and were admitted. Dye, Seidel, and the two women drank and played pool for some time. Neither Dye nor Seidel had previously known either woman.

According to Seidel, after some time Dye began betting one of the victims that before the night was over she would perform oral sex upon him. At this point, Dye and Seidel were on the service side of the club’s bar, and the two women were seated on the customers’ side. Seidel said that when this "betting” began, he withdrew from the conversation and went to the other end of the bar. According to Seidel the "betting” talk became increasingly heated, with Dye finally exclaiming that she would perform oral sex. According to Seidel, Dye then pulled a revolver from the waistband at the small of his back, racked a shell into the chamber, placed the muzzle against her forehead, and pulled the trigger. According to Seidel, the back of her head exploded and she fell off the barstool and onto the floor. Seidel said that he then turned away. He said that he heard the second victim say that she did not believe what was happening, heard Dye say "I do,” and then heard a second shot. When he turned back the second victim lay dead on the floor.

According to Dye, Seidel was serving the women drinks and Dye was observing when Dawson and Stever burst in out of breath and exclaimed that they had just firebombed the house of the mother of a former president of the Forbidden Wheels Club. (The house had in fact been firebombed and a police dog tracked a scent to within 100 feet of the clubhouse.) Dawson and Stever approached Dye, Seidel, and the two women and began relating their story. Seidel objected, indicating that they should not discuss this in front of the two women. Dawson and Stever then went upstairs to "watch the smoke” and see if they could see some flames. Dye then decided to go home. He called his wife, who after learning that Dye had been drinking told him to stay at the club. (Dye’s wife corroborated receipt of the phone call and the substance of the conversation.) Dye then lay down on a couch and asked Seidel to wake him at about 6:00 a.m. Dye was awakened by a loud noise, and then heard another loud noise and a thump. Dye then stood, approached the bar, and saw Seidel standing over the two bodies.

5 Dye denied confessing.

6 Their own testimony could not be used in any prosecution against them.

7 The Sixth Amendment applies to the states through the Fourteenth Amendment. Pointer v Texas, 380 US 400; 85 S Ct 1065; 13 L Ed 2d 923 (1965).

8 See, e.g., Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980); Mattox v United States, 156 US 237; 15 S Ct 337; 39 L Ed 409 (1895).

9 Quoting Mattox v United States, n 8 supra, pp 242-243. See also Pointer v Texas, n 7 supra, p 405. ("There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.”)

10 See Ohio v Roberts, n 8 supra; People v Schepps, 217 Mich 406; 186 NW 508 (1922). MCL 768.26; MSA 28.1049 provides:

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.

This Court noted in People v McIntosh, 389 Mich 82, 87; 204 NW2d (1973), that the statute must be construed in a manner consistent with prevailing constitutional authority.

11 The level of diligence required may vary depending upon the nature of the action and the proponent’s identity. It has been said that the prosecutor is held to a higher standard sis the proponent than is a criminal defendant or parties in a civil action. McCormick, Evidence (3d ed), § 253, pp 756-757.

12 Ohio v Roberts, n 8 supra, p 60, quoting Barber v Page, 390 US 719, 724-725; 88 S Ct 1318; 20 L Ed 2d 255 (1968); People v McIntosh, n 10 supra, p 86. ("[T]he prosecution must show due diligence in their efforts to produce such [allegedly unavailable] witnesses.”)

13 Ohio v Roberts, n 8 supra, p 74 (emphasis in original).

14 See n 4.

15 The assistant prosecutor testified that during this period Dawson repeatedly telephoned him to learn whether and when Dye would be released on bond. All these contacts appear to have been initiated by Dawson, not the prosecution.

16 It does not appear that the prosecution made any efforts to communicate with the wife’s relatives or friends.

17 MCL 767.91 et seq.; MSA 28.1023(191) et seq.

18 Officer Kuhnlein telephoned the jails, hospitals, and morgues in Oakland, Macomb, and Wayne counties. He also checked with the Department of Social Services. The record does not indicate when these inquiries were made.

19 See n 17.

20 According to Dawson’s mother.

21 The opinion does not indicate whether there were any other witnesses or other evidence implicating Payne.

22 This Court’s most recent opinions on the prosecution’s duty to produce witnesses at trial indicate that the prosecution’s efforts in this case failed to rise to the level of good-faith due diligence. In People v Pearson, 404 Mich 698; 273 NW2d 856 (1979), this Court evaluated the prosecution’s efforts to produce res gestae witnesses in four consolidated cases. In Willie Pearson and Lindsay Pearson, this Court held that the alleged res gestae witness was not in fact a res gestae witness. In Schwartz and Wynn, this Court held that the prosecution’s efforts to produce the missing res gestae witness did not rise to the level of due diligence.

We note first that the prosecution’s duty to produce res gestae witnesses might be less strict than its duty under the Confrontation Clause to produce witnesses whose testimony is offered against the defendant.

Schwartz was convicted of delivery of heroin. The police officer making the arrest was introduced to Schwartz by one Don Cager, an informant who was present during the sale. Cager was endorsed on the information but was not produced at trial.

The last time that the prosecution had seen Cager was six months before Schwartz’ trial. In the five weeks before Schwartz’ trial, the prosecution made several attempts to find Cager, including going to his home and speaking to a local police officer. During trial the prosecution again checked his residence, a boathouse, a firehouse, a pool hall, two bars, and two restaurants.

This Court held that the appropriate standard was due diligence, not just good faith. Even though "[i]t was clear that [the witness] was a res gestae witness who would have to be produced,” the prosecution made only belated attempts to find Cager. As in the present case, "[o]f particular concern to this Court, however, is that no serious effort was made sufficiently in advance of trial to allow for the difficulties which occurred.” Pearson, supra, p 717.

Willie Wynn was convicted of assault with intent to do great bodily harm less than murder. James Moore was one of a number of witnesses to the assault. Moore, a friend of Wynn’s, was not endorsed prior to trial, but in response to a defense motion the trial court ordered Moore endorsed and produced at trial. The prosecution did not attempt to serve Moore with a subpoena and made no other efforts to find him. Moore did not appear at Wynn’s trial. The trial court found that this lack of effort did not meet the due diligence requirement. This Court affirmed.

In People v McIntosh, 389 Mich 82; 204 NW2d 135 (1973), this Court applied the due diligence standard to the prosecution’s efforts to locate a witness whose preliminary examination testimony was used against the defendants at trial. Franklin McIntosh was prosecuted for burglarizing a gas station. At McIntosh’s preliminary examination, Jerry Wrenn, an employee at the station, testified that he found McIntosh inside the office. McIntosh told Wrenn that he was returning the washroom key and left, driving off with a companion. Wrenn subsequently discovered that the bag containing the day’s receipts was missing and telephoned the state police, who found the bag under the front seat of McIntosh’s automobile. Wrenn also testified that when he entered the office he noticed that the back of McIntosh’s sweater "was bunched as if something bulky was being carried underneath it,” and that McIntosh, upon leaving the station, leaned into the front-seat area of his car where the money was found.

Wrenn was apparently the only witness who testified that McIntosh, and not his companion, was the thief. The prosecution learned after the preliminary examination that Wrenn had left the state and was either in a North Carolina prison, or living on Webb Avenue in Burlington, North Carolina, possibly under the alias "Danny Hill.” The prosecution took the following steps to locate Wrenn: It checked his local home and employer. It telephoned information for Burlington and learned that no Wrenn or Hill was listed on Webb Avenue. It communicated with Burlington police and asked them to check on Wrenn’s whereabouts. No reply was ever received. The prosecution did not communicate with North Carolina prison authorities.

Applying the decision of the United States Supreme Court in Barber v Page, n 12 supra, which this Court read as establishing a due diligence standard, this Court held that the prosecution’s efforts failed to rise to the level of due diligence. The prosecution should have sought to locate Wrenn in Burlington and should have communicated with North Carolina prison authorities. "The fact that an attempt may prove unsuccessful does not justify the prosecution’s failure to make that attempt, Barber, supra.”McIntosh, supra, p 87.

23 Where a witness is beyond a court’s jurisdiction, use of the uniform act may be required in all cases. See Barber v Page, n 12 supra, p 723 (while the fact that the witness was outside the court’s jurisdiction may at one time have excused the prosecution from producing him, because of developments like the uniform act, "it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government” now requires the prosecution to engage in diligent efforts to produce witnesses who may be beyond the court’s jurisdiction); People v Gaffney, 51 Mich App 526; 215 NW2d 587 (1974) (distinguishing People v Serra, 301 Mich 124; 3 NW2d 35 [1942], and holding that the prosecution’s failure to utilize the uniform act barred a finding of good-faith diligence).

Other states that have considered the matter agree that use of the uniform act is required in at least some circumstances. See State v Kaufman, 304 So 2d 300, 303 (La, 1974); State v Kirk, 211 Kan 165, 170-171; 505 P2d 619 (1973).

In People v Serra, supra, this Court said that the prosecution’s failure to produce at trial an indorsed res gestae witness who had moved to Buffalo, New York, did not bar a finding of due diligence. There was no question of using any prior testimony against the defendant.

In People v Hunley, 313 Mich 688; 21 NW2d 923 (1946), the prosecution offered the preliminary examination testimony of a witness who had subsequently been inducted into the Army and sent to Kentucky. The witness was not vital to the prosecution’s case. This Court emphasized that the witness’ "testimony was corroborated in almost every detail by other witnesses.” Hunley, supra, p 692. This Court also observed that the defendant did not in her brief assert that the prosecution should have utilized the uniform act, and that no showing had been made that Kentucky had enacted a reciprocal provision, which the act requires before it can be utilized.

24 Troher was a member of the Forbidden Wheels, but was not in the clubhouse at the time of the killings.

Wilfred David’s testimony, adverted to in the opinion to affirm, was not adverted to in Dye’s brief in this Court.

25 For a more complete factual summary, see n 4.

26 Quoting Nickerson, supra, 386 Mass 61.

27 See also Farley v State, 717 P2d 111 (Okla Crim App, 1986) (evidence of prearrest silence is more prejudicial than probative of a defendant’s guilt); State v Sabbah, 13 Ohio App 3d 124, 136; 468 NE2d 718 (1982) ("Persuasively reasoned authority supports the proposition that all pretrial silence is usually so prejudicial in disproportion to its probative worth that exclusion is warranted in all but exceptional cases” [emphasis in original]); People v Conyers, 52 NY2d 454; 420 NE2d 933 (1981) (state rules of evidence generally preclude the use of a defendant’s pretrial silence to impeach his trial testimony).

28 See n 29.

29 The opinion to affirm states:

The prosecution did not make any inquiry in its case in chief regarding Dye’s prearrest failure to make a statement, Dye’s failure to make a postarrest statement to the homicide investigator, or his postarrest statement to the arson investigators. [Post, p 112.]

During the prosecution’s case in chief, the following questions were put to and responses elicited from Troher:

Q. To your knowledge, did there come a time when Mr. Dye was arrested?

A. Yes.

Q. Before that arrest, had you turned yourself in, so to speak, or had you gone down to the police, let me use it that way.

A. I believe so.

Q. Mr. Dye did not go down with you to the police?

A. No.

The prosecution, during its case in chief, also elicited testimony from Seidel, Dawson, and Stever that although Dye did not want them to consult an attorney, they did so and made statements to the police. The purpose of this testimony was to emphasize Dye’s prearrest failure to make a statement to the police even though he knew that others were making such statements: "In effect, the prosecutor asked the question 'Is it natural to expect the defendant to go to the police and report his version of the offense knowing of the similar inclination of the other witnesses?’ ”

30 The opinion to affirm would "hold that the evidentiary errors alleged by the defendant did not result in a miscarriage of justice.” Post, pp 116-117.

The opinion refers to Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976), and states that the United States Supreme Court there "held that use of postarrest, post-Miranda warning silence for impeachment was 'fundamentally unfair and a deprivation of due process . . . .’ Id. at 618.” Post, p 107.

The opinion further states:

For the purpose of deciding the remaining claims of error concerning the testimony of David and Troher, we assume arguendo under People v Collier, 426 Mich 23; 393 NW2d 346 (1986), that the trial judge erred in permitting the prosecutor to question these witnesses concerning defendant’s prearrest conduct. [Post, p 114.]

The opinion to affirm does not state that Dye’s prearrest silence was admissible under Collier.