People v. Dye

Citation431 Mich. 58,427 N.W.2d 501
Decision Date02 August 1988
Docket NumberNo. 11,Docket No. 77166,11
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Allen DYE, Defendant-Appellant. Calendar
CourtSupreme Court of Michigan
John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, Andrea L. Solak, Principal Attorney, Appeals, Detroit, for plaintiff-appellee
OPINION

Before the Entire Bench.

LEVIN, Justice.

Paul Dye was convicted on retrial of two counts of first-degree murder 1 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, Sec. 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 This 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 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38, 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 F.2d 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 U.S. 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 U.S. at 474, 20 S.Ct. at 999.

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.

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...

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