Louis

*974 Opinion

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190.1 et seq.).

Charged with, among other offenses, murder with a special circumstance, defendant and his codefendants were tried before two separate juries. Virtually the same evidence was presented to each. The sole exception was the reading of the prior testimony of a prosecution witness whose credibility was indisputably minimal. Although known to be highly unreliable and likely to disappear, the witness was released from custody on his own recognizance before defendant’s trial through the efforts of the prosecution; the witness promptly vanished, After trial the codefendants went free; defendant was convicted and sentenced to death. Because the reading of that prior testimony—which came from a most questionable source but plainly spelled the difference between life and death—was admitted in violation of defendant’s constitutional and statutory right of confrontation, we conclude that the judgment must be reversed as a miscarriage of justice.

On the night of May 10, 1980, a man ran up to the cashier’s booth at a USA gasoline station in…

I respectfully dissent. In my view, a fair reading of the lengthy record of the actions and efforts of the prosecution to secure witness Gregory Tolbert’s presence at defendant’s trial amply supports the trial court’s finding of due diligence. Moreover, I am not persuaded that we should abandon or depart from our settled and long established standard of review of such rulings. This is particularly so where, as the majority ultimately determines, it makes no difference which standard of review is applied.

With respect to the standard-of-review issue, I note that none of the cases cited by the majority involved the question of whether a showing of due diligence had been made. Apparently even the Ninth Circuit has not yet applied its McConney (United States v. McConney (9th Cir. 1984) 728 F.2d 1195 ) analysis to that issue, while it has determined the following questions to be essentially factual in nature: Whether a defendant’s consent to search was voluntary (United States v. Salvador (9th Cir. 1984) 740 F.2d 752, 757, fn. 3 ); whether a defendant’s Miranda waiver was knowing and voluntary (United States v. Doe (9th Cir. 1985) 764 F.2d 695, 697 ); whether a defendant was competent…

I am more persuaded than Justice Panelli that there may be merit in the majority’s suggestion that, once the “historical facts” have been found by the trial court, the determination whether those facts establish “due diligence” is a question to be decided de novo by the appellate court. Although the United States Supreme Court has apparently never explicitly addressed this issue, in Barber v. Page (1968) 390 U.S. 719, 724-725 [ 20 L.Ed.2d 255, 260 , 88 S.Ct. 1318 ], and Ohio v. Roberts (1980) 448 U.S. 56, 74-77 [ 65 L.Ed.2d 597, 612-615 , 100 S.Ct. 2531 ]—two of its leading decisions in this area—the court undertook its own evaluation of whether the prosecution had adequately established its “good-faith efforts” to secure the presence of the missing witness, and did not simply defer to the lower courts’ judgment as to the sufficiency or reasonableness of the prosecution’s conduct. While at times it may be difficult to separate disputes over “historical facts” from the ultimate question of “due diligence” or “reasonableness,” because any judgment as to the “sufficiency” of the prosecution’s efforts is so dependent on constitutional values and will necessarily establish guidelines…

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law ( id., § 190.1 et seq.).

Charged with, among other offenses, murder with a special circumstance, defendant and his codefendants were tried before two separate juries. Virtually the same evidence was presented to each. The sole exception was the reading of the prior testimony of a prosecution witness whose credibility was indisputably minimal. Although known to be highly unreliable and likely to disappear, the witness was released from custody on his own recognizance before defendant's trial through the efforts of the prosecution; the witness promptly vanished. (1a) After trial the codefendants went free; defendant was convicted and sentenced to death. Because the reading of that prior testimony — which came from a most questionable source but plainly spelled the difference between life and death — was admitted in violation of defendant's constitutional and statutory right of confrontation, we conclude that the judgment must be reversed as a miscarriage of justice.

On the night of May 10, 1980, a man ran up to the cashier's booth at a USA…