PEOPLE OF MI V CHANO ESQUIVELAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 13, 1998
Kent Circuit Court
LC No. 95-002781 FC
PEOPLE OF THE STATE OF MICHIGAN,
Kent Circuit Court
LC No. 95-002781 FC
Before: Gage, P.J., and Reilly and Jansen, JJ.
Following a joint trial before a single jury, defendants were each convicted of two counts of
assault with intent to commit murder, MCL 750.83; MSA 28.278, and two counts of possession of a
firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). They were thereafter
sentenced to identical terms of fifteen to fifty years’ imprisonment for each of their assault with intent to
commit murder convictions and to two years’ imprisonment for their felony-firearm convictions.
Defendants appeal as of right. We affirm.
This case arises out of a drive-by shooting that occurred during the early morning hours of July
16, 1995, in the City of Grand Rapids. Several people (approximately five) were sitting on the porch of
a house located on Sheridan Avenue when a brown van occupied by four people drove by. Four or
five gunshots were fired from the van toward the occupants of the porch. One of the complainants,
Gerardo Villanueva, was shot in the left upper arm and the bullet traveled across his chest and struck his
right arm. The other complainant, Alfonso Morales, was not struck by any bullets. There was evidence
at trial showing that at least two different weapons were fired.
Docket No. 197536
On appeal, defendant Sierra first argues that the trial court erred in allowing certain police
officers to testify regarding Morales’ on-the-scene identification of him as one of the perpetrators. He
contends that the admission of the police officers’ testimony violated his right to counsel because the on
the-scene identification occurred without counsel being present. He also contends the testimony of the
police officers constituted inadmissible hearsay. We disagree with both contentions.
With respect to defendant Sierra’s “right to counsel” argument, this Court has recently held that
where the police promptly conduct an on-the-scene corporeal identification without counsel present for
the benefit of the accused, such an on-the-scene confrontation is reasonable police practice and no right
to counsel is violated. People v Winters, 225 Mich 718, 728; 571 NW2d 764 (1997).1 The facts of
this case fit squarely within the rule set forth in Winters. About thirty minutes after the shooting
occurred, police officers brought Morales to the arrest scene to view the two defendants who were
seated in the rear of separate police vehicles. Morales identified defendant Sierra to police officers as
being one of the men in the brown van. Although neither defendant had counsel present during the
identification, such identification procedure by the police officers in this case was proper. Id. at 728
729. Accordingly, no right to counsel was violated where the police officers conducted a prompt,
corporeal, on-the-scene identification after the shooting occurred.
With respect to defendant Sierra’s hearsay argument, we first note that defendant preserved his
claim of error with an objection at trial. The trial court ruled that the police officers’ testimony regarding
Morales’ statements of identification given at the hospital and at the scene of the arrest, although
hearsay, was admissible pursuant to MRE 803(1) (present sense impression), MRE 803(2) (excited
utterance), or MRE 803(24) and 804(b)(6) (the so-called “catch-all” exceptions). The decision to
admit or exclude evidence is within the sound discretion of the trial court and will not be disturbed on
appeal absent an abuse of discretion. People v Lugo, 214 Mich App 699, 709; 542 NW2d 921
(1995). An abuse of discretion is found only if an unprejudiced person, considering the facts on which
the trial court acted, would say there was no justification or excuse for the ruling made. Id.
An exception to the hearsay rule is made if the statement qualifies as an excited utterance. MRE
803(2); People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979). To qualify as an excited
utterance, a statement must (1) arise out of a startling event or condition, (2) be made before there has
been time to contrive or misrepresent, and (3) relate to the circumstances of the startling event or
condition. MRE 802(3); Gee, supra at 282. The second requirement addresses the issue of whether
the statement was made while the declarant was still under the influence of an overwhelming emotional
condition. Properly understood, it relates to capacity to fabricate rather than lack of time to fabricate.
People v Hackney, 183 Mich App 516, 522; 455 NW2d 358 (1990); see also People v Zysk, 149
Mich App 452, 457; 386 NW2d 213 (1986) (holding that a statement made by a rape victim three
hours after an assault qualified as an excited utterance: “While the actual lapse of time between the
event and the statement is a significant factor, its significance depends largely on the character of the
In this case, the circumstances preceding and surrounding Morales’ statements of identification
suggest that that the statements were made while Morales was still under the overwhelming influence of
the drive-by shooting of his house and the wounding of his friend, Villanueva. Police Officer Bryan
Boone testified that when he first saw Morales in the hospital, Morales was crying, was “very, very
upset,” and had blood on his pants. Morales’ description of defendant Sierra related to a startling event
(the drive-by shooting) while he was under the stress of excitement caused by the shooting. Thus, the
trial court did not abuse its discretion in allowing the police officers to testify regarding Morales’
description of the events to them at the hospital.
Likewise, the facts suggest that Morales was still under the stress of the drive-by shooting when
he made the on-the-scene identification of defendant Sierra. Police Officer Peter McWatters testified
that Officer Boone brought Morales to the police car and Morales immediately became upset and cried
when he saw defendant Sierra. Officer Boone testified that Morales was visibly upset, crying, and
shaking when he brought Morales to the arrest scene. When getting ready to leave, Morales saw the
van and again “broke down and started crying.” Such evidence supports the trial court’s conclusion
that Morales was still under the stress of excitement caused by the drive-by shooting when he identified
defendants at the arrest scene.
Accordingly, we hold that the trial court did not abuse its discretion in allowing the police
officers to testify regarding Morales’ identification of defendant Sierra at the hospital and at the arrest
scene pursuant to the excited utterance exception to the hearsay rule. Because we conclude that the
challenged hearsay testimony was admissible under MRE 803(2), we offer no opinion as to the
propriety of the trial court’s reliance on MRE 803(1), 803(24), and 804(b)(6).2
Next, defendant Sierra argues, for the first time, that the trial court erred in admitting Morales’
preliminary examination testimony into evidence at trial, when Morales did not appear to testify in
person. Specifically, defendant Sierra contends that Morales’ prior testimony was inadmissible because
the prosecution did not exercise due diligence in attempting to locate and produce Morales for trial.
This claim of error was not preserved for appeal.
During the testimony of one of the police officers present during Morales’ on-the-scene
identification of defendants, counsel for defendant Esquivel argued that the prosecution should not be
allowed to admit Morales’ statements to the police through the hearsay testimony of the police officers,
when Morales was not going to be present for cross-examination at trial and his preliminary examination
testimony did not fully address the content of those statements. Defendant Sierra’s attorney shared this
concern. In the course of discussing the matter of the officer’s testimony, and without prompting from
the parties, the trial court asked the prosecutor to “fill the record in on the whereabouts of Mr. Morales
and what efforts have been made to locate him.” The prosecutor explained that Morales had been
missing for some time, and that the most recent information (as of the previous day) indicated that
Morales was likely being held somewhere, presumably as an illegal alien, after being “picked up” by
“the border patrol.” Defendant Sierra did not respond to the prosecutor’s explanation of the efforts to
produce Morales, and at no time during the trial did he ever suggest that these efforts had been anything
less than duly diligent. Two days later, Morales’ preliminary examination testimony was read into the
record without any objection from defendant Sierra. Finally, during closing arguments, counsel for
defendant Sierra argued that Morales’ testimony “under oath” at the preliminary examination
undermined the credibility of the more damaging testimony from the police officers regarding Morales’
statements after the incident. In so doing, she re-read a portion of Morales’ preliminary examination
testimony in which he stated that he was “not sure who had the gun.” Accordingly, neither the
prosecution’s due diligence (or lack thereof), nor the admissibility of Morales’ preliminary examination
testimony were ever disputed issues at trial.
In order to preserve an evidentiary issue for appellate review, a party must make a timely
objection at trial specifying the same ground as is asserted on appeal. MRE 103(a)(1); People v
Considine, 196 Mich App 160, 162; 492 NW2d 465 (1992). Absent an objection, this Court may
only take notice of plain errors affecting substantial rights. MRE 103(d). As noted above, defendant
Sierra raised no such objection in this case. In fact, the record suggests that defendant Sierra’s trial
counsel welcomed – or at the very least deemed proper – the trial court’s decision to admit the
evidence. She did not object to its admission, but instead made beneficial use of it during her closing
argument. Therefore, it would be improper to allow defendant to assign error to the trial court’s
decision to admit Morales’ preliminary examination testimony into evidence. A defendant should not be
allowed to assign error on appeal to something his own counsel deemed proper at trial, because to do
so would allow the defendant to harbor error as an appellate parachute. See, e.g., People v Green,
228 Mich App 684, 691; 580 NW2d 444 (1998); cf. People v Harris, 127 Mich App 538, 543-544;
339 NW2d 45 (1983).
The purpose of appellate preservation requirements is to induce litigants to do everything they
can in the trial court to prevent error, eliminate its prejudice, or at least create a record of the error and
its prejudice. E.g. People v Taylor, 195 Mich App 57, 60; 489 NW2d 99 (1992); see also People v
Grant, 445 Mich 535, 551; 5290 NW2d 123 (1994). Thus, an appellant generally bears the burden
of furnishing the reviewing court with a record that “verifies the basis of any argument on which reversal
or other claim for appellate relief is predicated.” Petraszewsky v Keeth (On Remand), 201 Mich App
535, 540; 506 NW2d 890 (1993); see also People v Kowalski, 230 Mich App 464, 488; ___
NW2d ___ (1998) (Corrigan, C.J., concurring). Here, without the benefit of a due diligence hearing
and findings of fact from the trial court, the issue is unpreserved because we cannot discern the extent of
the prosecution’s efforts, if any, to locate Morales prior to trial. Cf. People v Lee, 391 Mich 618,
626-627; 218 NW2d 655 (1974); Winters, supra at 729. Perhaps if defendant Sierra had requested
a formal due diligence hearing in conjunction with an objection to the admission of Morales’ preliminary
examination testimony, the prosecutor would have been able to create a sufficient factual record.
However, in the absence of such a request, the prosecutor’s brief unchallenged response to the trial
court’s informal inquiry provides an inadequate basis for review.
It bears noting that defendant’s newly-minted allegation of error contains a constitutional
dimension. See People v Burwick, 450 Mich 281, 290 n 12; 537 NW2d 813 (1995). Important
constitutional questions may be raised on appeal for the first time and considered by the appellate court
when the alleged error could have been decisive to the outcome. See, e.g., Grant, supra at 547;
People v Johnson, 215 Mich App 658, 669; 547 NW2d 65 (1996). However, this Court is not
required to review all unpreserved allegations of constitutional error. See, e.g., Winters, supra at 729;
People v Hogan, 225 Mich App 431, 437-438; 571 NW2d 737 (1997). With respect to the
particular allegation of error first raised in this appeal, review by this Court would be inappropriate for
all of the reasons stated above. Hence, we decline to address the merits of defendant Sierra’s
Finally, even if we were inclined to consider the merits of defendant Sierra’s argument, we could
not do so, because we believe that the admission of Morales’ preliminary examination testimony, if
indeed it was unpreserved error, could not have been decisive to the outcome of this case. See, e.g.,
Grant, supra at 547, 553. Police officers McWatters and Boone, the officers who spoke with
Morales after the incident, testified at trial in relative detail about Morales’ description of the shooting
and the events leading up to it. According to these officers, Morales emphatically identified defendant
Sierra as having a gun and being one of the persons who shot out of the van. By comparison, the
transcript of Morales’ preliminary examination testimony was much less descriptive and much less
incriminating. Although Morales tentatively identified defendant Sierra as being one of four persons in
the brown van when it passed by his house at a time prior to the shooting, he could not confirm that
defendant Sierra ever had a gun, or that defendant Sierra was even in the van at the time of the shooting.
Consequently, the transcript of Morales’ preliminary examination testimony was cumulative of (and
much less compelling than) the police officers’ testimony. Therefore, we conclude that even if the
admission of Morales’ preliminary examination testimony constituted error, it could not have been
decisive to the outcome of this case. Cf. People v Solomon (Amended Opinion), 220 Mich App 527,
531; 560 NW2d 651 (1996); People v Crawford, 187 Mich App 344, 353; 467 NW2d 818 (1991);
People v Dixon, 161 Mich App 388, 396; 411 NW2d 760 (1987). Our conclusion is bolstered by
the fact that defendant Sierra’s own attorney relied heavily on the evidence during her closing argument.
Finally, we reject defendant Sierra’s claim that his sentences for the assault convictions were
disproportionate. Defendant Sierra’s sentences were within the guidelines. A sentence imposed within
an applicable sentencing guideline range is presumptively neither excessively severe nor unfairly
disparate. People v Kennebrew, 220 Mich App 601, 609; 560 NW2d 354 (1996). Nevertheless, a
sentence within a guidelines range can conceivably violate proportionality in unusual circumstances.
People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990). Defendant claims that his fifteen-year
minimum sentences for the assault with intent to kill convictions were disproportionately severe because
he has no prior criminal convictions and he has a good work history. However, this Court has held that
a defendant’s employment and lack of criminal history are not unusual circumstances which overcome
the presumption. People v Daniel, 207 Mich App 47, 54; 523 Nw2d 830 (1994). Moreover,
defendant Sierra opened fire on a porch where approximately five individuals were located, and
succeeded in seriously injuring one of those individuals. As noted by the trial court during sentencing,
defendant Sierra’s actions demonstrated a total disregard for life and were the type of behavior that
“absolutely terrorizes the community.” The trial court did not abuse its discretion when it imposed
defendant Sierra’s sentences.
Docket No. 197537
Defendant Esquivel first argues that the prosecutor did not present sufficient evidence that he
intended to kill either victim. We disagree. When determining whether sufficient evidence has been
presented to sustain a conviction, the court must view the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could have found that the essential elements of
the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d
748 (1992), amended 441 Mich 1201 (1992).
In order to prove the crime of assault with intent to commit murder, the prosecution must prove
the following elements: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would
make the killing murder. People v Hoffman, 225 Mich 103, 111; 570 NW2d 146 (1997). The intent
to kill may be proven by inference from any facts in evidence. Id.
Taken in a light most favorable to the prosecution, there was sufficient evidence to sustain
defendant Esquivel’s convictions of assault with intent to commit murder. The evidence showed that
approximately five persons were on the front porch of a house when a blue car drove by. Someone in
the car asked, “Where are the Latin Kings?” Later, the occupants of the blue car drove by in a brown
van. Someone in the van shouted, “Sur Trece,”3 and several gunshots were fired at the house. It was
determined by the police that at least two different guns were used and eight to fifteen shots were fired
at the house. The gunshots hit the house and porch and vehicles parked on the street. While Morales
was able to escape any injury, Villanueva was shot once in the arm and the bullet traveled across his
chest and struck his other arm. Morales identified both defendants as being in the van at the time of the
shooting.4 The fact that neither complainant was shot in a “vital organ” is not dispositive as defendant
Esquivel contends. Accordingly, we hold that there was sufficient evidence presented and the
reasonable inference drawn from that evidence could lead the jury to find that defendant Esquivel
intended to kill the complainants.
Defendant Esquivel next argues that the trial court applied the wrong standard of review in
deciding his motion for new trial based on the great weight of the evidence. We disagree. A trial court
may grant a motion for new trial based on the great weight of the evidence only if the evidence
preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict
to stand. People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998). We review the trial
court’s decision for an abuse of discretion. See, e.g., People v Torres (On Remand), 222 Mich App
411, 415; 564 NW2d 149 (1997).
Following his conviction, defendant Esquivel moved for a new trial, claiming that the jury’s
verdict was against the great weight of the evidence because there was no evidence of an intent to kill.
The trial court issued an order denying defendant’s motion because “the evidence at trial was sufficient
to prove each element of the offenses of which defendant herein was convicted.” In the motion for new
trial, defendant only contended that the evidence was insufficient to prove actual intent to kill. The trial
court correctly ruled that there was sufficient evidence of defendant Esquivel’s intent to kill.
Accordingly, the trial court did not apply the wrong standard of review, or abuse its discretion.
/s/ Hilda R. Gage
/s/ Maureen P. Reilly
Pursuant to MCR 7.215(H) the Winters decision is controlling authority. We note that a different
holding regarding this issue set forth in People v Miller, 208 Mich App 495; 528 NW2d 819 (1995),
was ordered “to have no precedential force or effect.” 450 Mich 955 (1995).
We disagree with the dissent’s contention that statements of identification are not admissible as
substantive evidence if they do not meet the requirements of MRE 801(d)(1)(C). By its terms, MRE
801(d) merely states that certain prior statements of identification are “not hearsay.” It does not
provide that out-of-court statements of identification are otherwise inadmissible, and the dissent cites no
persuasive legal authority for this proposition. We also note that the dissent’s Confrontation Clause
concerns are alleviated by the fact that Morales’ out-of-court statements were admissible pursuant to a
firmly-rooted exception to the hearsay rule. See People v Poole, 444 Mich 151, 162-163; 506
NW2d 505 (1993), citing Ohio v Roberts, 448 US 56, 66; 100 S Ct 2531; 65 L Ed 2d 597 (1980);
see also Idaho v Wright, 497 US 805, 827; 110 S Ct 3139; 111 L Ed 2d 638 (1990).
“Sur trece” is Spanish for “South thirteen” and represents a gang name.
We note that defendant Esquivel does not challenge the introduction of Morales’ identification
testimony or the preliminary examination testimony on appeal despite the fact that Morales did not
testify at trial.