People v. Nieto, Docket No. 9227

CourtCourt of Appeal of Michigan (US)
Citation33 Mich.App. 535,190 N.W.2d 579
Docket NumberDocket No. 9227,No. 2,2
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Juan NIETO, Defendant-Appellant
Decision Date19 May 1971

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190 N.W.2d 579
33 Mich.App. 535
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Juan NIETO, Defendant-Appellant.
Docket No. 9227.
Court of Appeals of Michigan, Division No. 2.
May 19, 1971.
Leave to Appeal Denied July 19, 1971.
Released for Publication Oct. 8, 1971.

[33 Mich.App. 536] Robert J. Baker, Baker, Durst & Engle, Adrian, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and McGREGOR, JJ.

R. B. BURNS, Judge.

After nine days of trial, a jury found defendant Juan Nieto guilty of murder in the second degree. 1

Testimony established that Juan and some of his relatives were accosted by the victim, Jesse Alvia, and some of Jesse's friends, following a nighttime wedding reception in Adrian, Michigan. This confrontation apparently stemmed from previous altercations between Jesse, and Juan and Juan's nephew. 2 After Jesse fired several shots from a pistol he fled [33 Mich.App. 537] across a street into a parking lot, with several people in pursuit. The defendant admits chasing Jesse across the street but denies that he caught and stabbed him. All of Juan's friends and relatives corroborate his story, while many of Jesse's friends contend that Juan caught Jesse and attacked him. Jesse was found a short distance from the parking lot a few minutes after the alleged attack dying or dead from fourteen stab wounds.

Some of the most incriminating testimony came from the preliminary examination testimony of Placido Villegas. Villegas was not present at the trial so the prosecution read his preliminary examination testimony to the jury. Villegas claimed to have seen Juan Nieto chasing Jesse with a knife. Although other witnesses claimed that they saw Juan chase and attack Jesse, none of these testified that Juan had a knife in his hand. Due to the nature of Jesse's death, Villegas' testimony was non-cumulative and highly incriminatory.

Defense counsel objected to the Villegas testimony on the ground that the prosecution had failed to make sufficient efforts to obtain Villegas' presence at trial. By statute, preliminary hearing testimony may be used at trial 'whenever the witness giving such testimony can not, for any reason, be produced at the trial.' 3 However, the reasons for the witness's unavailability at trial must be weighed against the defendant's constitutional right of confrontation. 4 Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. The Michigan statute must give [33 Mich.App. 538] way to the right of confrontation where a witness's absence from trial stems from the prosecution's lack of good faith efforts to secure the witness's presence. Barber v. Page, Supra. 5

The prosecutor's efforts to

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produce the witness in this case consisted of making a few telephone calls to Villegas' family 6 and delivering a subpoena for Villegas

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to the Adrian police department. The prosecutor testified that the Adrian police department sent the subpoena to the Chicago police department along with a letter requesting help in locating Villegas, who lived in Chicago, Illinois. 7

Weighed against the defendant's right of confrontation the attempts by the prosecution in this case to secure the witness's presence falls short of the good faith effort required in Barber.

The fact that Villegas may have been subject to cross-examination at the preliminary hearing does not satisfy the right to confrontation since that right also includes 'the occasion for the jury to weigh the demeanor of the witness.' Barber v. Page, Supra, 390 U.S. 725, 88 S.Ct. 1322.

[33 Mich.App. 539] At the very least, prosecuting authorities should utilize Michigan's statutory procedure to secure the attendance of sister...

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24 cases
  • People v. Harrison, Docket No. 11447
    • United States
    • Court of Appeal of Michigan (US)
    • 20 d2 Fevereiro d2 1973
    ...1 (1970). Where the witness is outside the state, statutory procedures must be invoked to procure his attendance. See People v. Nieto, 33 Mich.App. 535, 539, 190 N.W.2d 579 It was reversible error for the prosecutor to fail to endorse and call Maurice Tate as a res gestae witness. VI The fa......
  • Ellis v. Kaye-Kibbey, 1:07-cv-910.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 10 d5 Outubro d5 2008
    ...with any subpoena issued by a Michigan court, whether to produce documents or testify, is simply false. See, e.g., People v. Nieto, 33 Mich.App. 535, 190 N.W.2d 579, 581 n. 7 (1971) (a Michigan subpoena has no effect beyond its borders) [citing Ann Arbor Bank v. Weber, 338 Mich. 341, 61 N.W......
  • People v. Masters, Cr. 40950
    • United States
    • California Court of Appeals
    • 22 d4 Julho d4 1982 out-of-state witness to attend trial has been held to be violative of defendant's right of confrontation. (See People v. Nieto (1971) 33 Mich.App. 535, 190 N.W.2d 579; Ormound v. Sheriff, Clark County (1979) 95 Nev. 173, 591 P.2d 258; State v. Zellmer (1981) 100 Wis.2d 136, 301 N.W.2d 10......
  • People v. Harris, Docket No. 13191
    • United States
    • Court of Appeal of Michigan (US)
    • 26 d4 Outubro d4 1972
    ...(where the Court accepted the trial judge's instruction submitting the question of due diligence to the jury). 4 Cf. People v. Nieto, 33 Mich.App. 535, 190 N.W.2d 579 (1971) (where the Court held that the people's efforts consisting of a few telephone calls to the witness's family and deliv......
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