Opinion
Docket No. 3,434.
Decided March 27, 1969.
Appeal from Oakland, Clark J. Adams, J. Submitted Division 2 February 5, 1969, at Lansing. (Docket No. 3,434.) Decided March 27, 1969.
Benny Lee Spells was convicted of first-degree murder. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, Dennis Donohue, Chief Appellate Counsel, and Bruce T. Leitman, Assistant Prosecuting Attorney, for the people.
William E. Bolle, for defendant on appeal.
BEFORE: QUINN, P.J., and McGREGOR and V.J. BRENNAN, JJ.
Defendant, Benny Lee Spells, was convicted of first-degree murder, having been charged with murdering a certain Eftimias Vasilion in an attempt, with two codefendants, to perpetrate an armed robbery in July, 1962. An extrajudicial statement of codefendant Page inculpated Spells. The statement was read into the record without objection by the defense; Spells was not afforded an opportunity to cross-examine, as Page did not testify.
The mandate of Bruton v. United States (1968), 391 U.S. 123 ( 88 S Ct 1620, 20 L Ed 2d 476) renders the reading of a non-testifying codefendant's inculpating statements invalid as a denial of the constitutional right to confront one's accusers. Bruton extends to state prosecutions, and is retroactive. Roberts v. Russell (1968), 392 U.S. 293 ( 88 S Ct 1921, 20 L Ed 2d 1100).
Defendant's failure to object to admission of the extrajudicial statement does not preclude review. The practice in question was sanctioned at the time of trial. A motion for separate trial by the third codefendant on the ground that the Page statement was prejudicial (which was denied in Spells' presence) directed the trial court's attention to the problem. See People v. Logie (1948), 321 Mich. 303, 307. Review, though the error has not been saved, is proper where necessary to afford a defendant a fair trial. People v. Farmer (1968), 380 Mich. 198, 208.
Reversed.