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.
JANSEN, J. (concurring in part and dissenting in part).
I concur with the majority that defendant Esquivel’s convictions must be affirmed for the reasons
set forth by the majority in docket no. 197537.
I respectfully dissent in docket no. 197536. I believe that it was error requiring reversal for the
trial court to allow the police officers to testify as to Morales’ identification testimony and to admit
Morales’ preliminary examination testimony where Morales was not produced by the prosecutor at trial.
The error was not harmless. I would reverse defendant Sierra’s convictions and remand for a new trial.
Defendant Sierra contends that the trial court’s decision to admit testimony of the police officers
that Morales, who did not testify at trial, identified Sierra as one of the perpetrators was erroneous. A
trial court’s determination of an evidentiary issue is generally reviewed for an abuse of discretion.
People v Adair, 452 Mich 473, 485; 550 NW2d 505 (1996).
The trial court permitted the police officers to testify at trial, over the objections of both
defendants, that Morales gave a description of the perpetrators about twenty to thirty minutes after the
drive-by shooting while at the hospital with Villanueva. The description given at the hospital matched
defendant Sierra. The trial court also permitted the officers to testify that, about thirty minutes after the
incident, Morales identified defendant Sierra as one of the perpetrators during the on-the-scene
identification. The trial court further permitted a detective to testify to a photographic lineup at which
Morales identified defendants as the perpetrators. The trial court ruled that the identification testimony
given at the hospital and at the arrest scene was permissible pursuant to MRE 803(1) (present sense
impression), MRE 803(2) (excited utterance), MRE 803(24) (other exceptions), or MRE 804(b)(6)
(other exceptions where declarant unavailable).
I would hold that the trial court abused its discretion in permitting the testimony concerning
Morales’ identification of defendant Sierra at the hospital, the identification of defendant Sierra as being
one of the people in the van at the on-the-scene identification, and the photographic lineup testimony.
Identification testimony is governed by MRE 801(d)(1)(C) which provides that a statement is not
hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and
the statement is one of identification of a person made after perceiving the person. The trial court noted,
correctly, that the police officers could not testify to Morales’ identification testimony at trial pursuant to
this court rule because Morales did not testify at trial and was not subject to cross-examination.
In an effort to allow the third-party identification testimony, the trial court admitted it under
MRE 803(1), 803(2), 803(24), and 804(a)(6). The majority affirms the trial court’s ruling on the basis
of MRE 803(2) (excited utterance). However, because identification testimony is specifically governed
by MRE 801(d)(1)(C), and because the terms of the hearsay exceptions relied on by the trial court do
not apply, I find that the third-party identification testimony was erroneously admitted in this case.
Before the adoption of the Michigan Rules of Evidence in 1978, third-party testimony
concerning an out-of-court identification statement was generally limited to rebuttal testimony tending to
impeach the testimony of the identifying witness, or testimony of the circumstances surrounding the
identification. People v Sanford, 402 Mich 460, 489; 265 NW2d 1 (1978). Further before the
adoption of MRE 801(d)(1)(C), third-party testimony of a nontestifying witness’ identification statement
would have been inadmissible. People v Hallaway, 389 Mich 265, 276; 205 NW2d 451 (1973)
(“Certainly, if Brown [an identifying witness] had not been a witness [at trial], it would have been clearly
inadmissible for the officer to relate Brown’s extra-judicial description of the robber.”) Now, in light of
MRE 801(d)(1)(C), third-party testimony of an out-of-court statement of identification is substantive
nonhearsay evidence if the identifier testifies at trial and is subject to cross-examination. People v
Malone, 445 Mich 369, 377; 518 NW2d 418 (1994). Recently, this Court in People v Sykes, 229
Mich App 254, 266-267; 582 NW2d 197 (1998), succinctly stated that the “rule in Michigan under
MRE 801(d)(1)(C), as enunciated in Malone . . . is that third-party testimony of an out-of-court
statement of identification by an identifier/declarant is substantive nonhearsay evidence—and is
admissible even if it goes beyond the simple facts and circumstances of the prior out-of-court statement
of identification—if the identifier/declarant testifies and is subject to cross-examination.”
In the present case, Morales did not testify at trial and was not subject to cross-examination.
His out-of-court identification testimony, therefore, could not have been admitted through the testimony
of the police officers. Moreover, it was error to rely on the other hearsay exception rules. Morales’
identification statements did not describe or explain an event or condition made while perceiving the
event or condition or immediately thereafter, compare MRE 803(1), nor did the identification statements
relate to a startling event or condition made while Morales was under the stress of excitement caused by
the event or condition, compare MRE 803(2). MRE 801(24) and MRE 804(a)(6) are also clearly
inapplicable because the prosecutor did not make known to defendant in advance of trial that the
identification testimony would be admitted at trial through the police officers.
Identification testimony is governed by a specific rule of evidence because the ramifications of
identification testimony implicate the Confrontation Clause. US Const, Am VI; see also United States
v Owens, 484 US 554; 108 S Ct 838; 98 L Ed 2d 951 (1988). There is a difference between a
witness testifying, “That’s the person that shot at me,” and “A brown van drove by and several
gunshots were fired from it.” Under these circumstances, the identification statement directly implicates
the defendant while the latter statement is merely one of narration describing the event or condition.
Therefore, the rule of evidence specifically requires that the declarant testify at trial and be subject to
cross-examination to satisfy such right-to-confrontation concerns. Therefore, Morales’ identification
testimony could only be admitted through third-party testimony if Morales testified at trial and was
subject to cross-examination. Although any statement regarding the events of the shooting could have
been admitted under the excited utterance exception to the hearsay rule, the statements of identification
could not be included under the excited utterance rule.
This error cannot be deemed harmless and the Confrontation Clause concerns are evident
where Morales, at his preliminary examination testimony, could not confirm whether these defendants
were in the van at the time of the shooting or whether they fired the guns, but a police officer testified at
trial that Morales identified defendants as the men who had the guns. Without the opportunity to cross
examine Morales at trial, the question whether Morales positively identified these defendants as the
shooters, and the circumstances surrounding the identification, such as lighting and the fact that Morales
was intoxicated at the time, could not be explored at trial. Thus, defendant Sierra was clearly
prejudiced where the police officers testimony of Morales’ identification statements was more detailed
and incriminating than that testified by Morales at the preliminary examination and than contained in the
Accordingly, I would hold that it was error for the trial court to permit the police officers to
testify to Morales’ identification of defendant Sierra as one of the perpetrators where Morales did not
testify at trial and was not subject to cross-examination.
Defendant Sierra also contends that the trial court erred in permitting the prosecutor to admit
Morales’ preliminary examination testimony where Morales did not testify at trial. Specifically,
defendant Sierra argues that the prosecutor did not use due diligence in attempting to produce Morales
for trial, and that the preliminary examination testimony should not have been admitted. I agree.
First, I disagree with the majority that this issue is not preserved for appellate review. At trial,
defendant objected to the admission of Morales’ identification testimony as being inadmissible hearsay.
The first time there is an indication in the trial transcript that Morales would not testify at trial was on
May 7, 1996, the fourth day of trial. The trial court questioned the prosecutor regarding Morales’
whereabouts and the efforts to locate him. The prosecutor responded that Morales was missing. The
prosecutor suspected, but was not certain, that Morales, an illegal Mexican immigrant, had attempted to
return to his family in Mexico, but was detained by the border patrol. Although the prosecutor was
aware before trial that Morales was missing, it was not until May 6, 1996, the third day of trial, that the
prosecutor asked the police to contact Morales’ employer to determine if the employer had any recent
information concerning Morales’ whereabouts. The employer then contacted Morales’ family in
Mexico, and the employer learned that Morales had been “picked up” by the border patrol and was
being held “somewhere.” The employer had additional information that Morales might be in the New
On this lead, the prosecutor had Detective Grable contact the border patrol in the New Orleans
area and officials indicated to Detective Grable that there were approximately one hundred thousand
illegal aliens in the United States being held in custody and that there was a two-month process before it
could be determined if Morales was indeed being held as an illegal immigrant. The prosecutor further
indicated to the trial court that “we have absolutely no information, other than the suspected belief of his
family that he is in fact being held somewhere, presumably as an illegal alien.” The trial court permitted
Morales’ hearsay identification statements to be admitted, finding that it would not be unfair to utilize the
statements “in light of the absence of this witness, the efforts to find him, and the fact that it simply,
under the circumstances, is not going to be possible to locate him.”
Here, the trial court specifically inquired of the prosecutor of Morales’ whereabouts and the
efforts to locate him. The trial court ultimately concluded that the efforts to locate Morales were
sufficient and that, under the circumstances, it was not going to be possible to locate Morales.
Moreover, the question whether the prosecutor exercised due diligence before using prior testimony at
trial is one of constitutional dimension because it implicates a defendant’s right to confrontation.1 See
People v Burwick, 450 Mich 281, 290, n 12; 537 NW2d 813 (1995); People v Dye, 431 Mich 58,
64-65; 427 NW2d 501 (1988); People v Conner, 182 Mich App 674, 680-681; 452 NW2d 877
(1990). Appellate courts will consider claims of constitutional error for the first time on appeal when the
alleged error could have been decisive of the outcome. People v Grant, 445 Mich 535, 547; 520
NW2d 123 (1994). Because defendant Sierra has presented a significant constitutional issue on appeal
that could have been decisive of the outcome and that warranted discussion in the trial court, it has not
A transcript of prior testimony may be offered in evidence upon a showing that the witness is
unavailable and that the testimony bears satisfactory indicia of reliability. Dye, supra, p 65; Conner,
supra, pp 680-681. In order to establish the witness’ unavailability, the proponent must prove that a
diligent, good-faith effort was made to obtain the witness’ presence at trial. Dye, supra, p 66; Conner,
supra, p 681; MRE 804(a)(5). Our Supreme Court has recently readdressed the issue of due diligence
in People v Bean, 457 Mich 677; 580 NW2d 390 (1998).
The test for whether a witness is “unavailable” as envisioned by MRE 804(a)(5)
is that the prosecution must have made a diligent good-faith effort in its attempt to locate
a witness for trial. The test is one of reasonableness and depends on the facts and
circumstances of each case, i.e., whether diligent good-faith efforts were made to
procure the testimony, not whether more stringent efforts would have produced it. . . .
The trial court’s determination will not be disturbed on appeal unless a clear abuse of
discretion is shown. [Bean, supra, p 684.]
In Bean, one police sergeant and two police investigators attempted to contact the missing
witness. The police sergeant made several telephone calls, described as “unsuccessful,” and the two
investigators went to known addresses of the missing witness, but were not able to produce him for trial.
One investigator also checked the Wayne County and Oakland County jails. Our Supreme Court held
that this was not a case in which the police did nothing to attempt to locate the missing witness, but
neither did they exercise due diligence. Id., p 689. It was specifically noted that the police did not
engage in efforts to attempt to locate the missing witness in the area to which he (and his mother) had
apparently moved, which was out of state. Id., pp 689-690.
Similarly, I find that the prosecution in this case did not exercise due diligence to locate Morales.
In fact, the police in Bean did more to attempt to locate the missing witness than the police did in the
present case. Here, the prosecution had a specific lead regarding Morales’ location. One telephone
call made by the detective to attempt to locate Morales’ whereabouts does not constitute diligent good
faith efforts to locate the key prosecution witness in this case. Further, there was no indication that the
prosecutor attempted to locate Morales in the Grand Rapids area, nor did the detective even telephone
Morales’ family in Mexico. The prosecutor’s failure to begin searching for Morales earlier also
precludes a finding of due diligence. The prosecutor certainly knew, in light of the scarcity of other
witnesses against defendant, that Morales was an important witness. Yet, even though the prosecutor
was aware before trial that Morales was missing, the prosecutor neglected to even commence any
search effort until days after trial began. Due diligence requires that the prosecutor make some effort
before trial to ensure Morales’ availability to testify as the star witness against defendant Sierra. See
People v James (After Remand), 192 Mich App 568, 571-572; 481 NW2d 715 (1992) (no due
diligence where prosecutor made no effort to locate witness until first day of trial).
Accordingly, the prosecutor did not use diligent good-faith efforts to locate and produce
Morales for trial. See, e.g., Bean, supra, pp 685-690; Dye, supra, (opinions of Levin, J., and Archer,
J.); People v Pearson, 404 Mich 698, 717; 273 NW2d 856 (1979); People v McIntosh, 389 Mich
82, 86-87; 204 NW2d 135 (1973); James, supra, pp 571-572.
These errors in permitting the police officers to testify to Morales’ identification statements of
defendant Sierra and in permitting the prosecutor to introduce Morales’ preliminary examination
testimony without exercising due diligence to produce him at trial cannot be considered harmless. See
Bean, supra, p 690. Morales was the only witness who provided any kind of identification testimony
with respect to who was in the brown van at the time of the shooting. No other witnesses, including
those who were present at the shooting, could identify anyone who was in the van at the time of the
shooting. Further, as noted by counsel at trial, the preliminary examination transcript did not explore
some of the identification issues that the police officers testified to at trial. Defendant had no opportunity
to cross-examine Morales regarding his identification of him at trial. Moreover, Morales was
intoxicated at the time of the shooting,2 he stated at the preliminary examination that the van had tinted
windows with the front window rolled down, only parking lights were on, there were no streetlights on
where the van stopped (and it was midnight), and that four people were in the van but he did not see
who had the guns. Thus, Morales’ identification testimony would certainly have been subject to attack
Because there was no properly admitted evidence at trial linking defendant Sierra to the
shooting, the errors in this case in admitting the third-party identification testimony and the preliminary
examination testimony of Morales cannot be deemed harmless and defendant Sierra is entitled to a new
/s/ Kathleen Jansen
This constitutional obligation derives from the Confrontation Clause of the Sixth Amendment of the
United States Constitution and § 20 of article 1 of the Michigan Constitution of 1963.
At the preliminary examination, Morales testified that he had consumed a case or a case and a half of
beer during the course of the day. A police officer also testified that he could smell alcohol on Morales’
breath at the hospital after the shooting.