Opinion
363814
10-30-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LAURO ESPINO, Defendant-Appellant.
UNPUBLISHED
Van Buren Circuit Court LC No. 2020-022758-FH
Before: Brock A. Swartzle, P.J., and K. F. KELLY and Adrienne N. Young, JJ.
PER CURIAM.
Lauro Espino was convicted after a jury trial of operating while intoxicated causing death (OWI causing death), MCL 257.625(4)(a); and driving while his license was suspended, revoked, or denied, causing death (DWLS causing death), MCL 257.904(4), and acquitted of a third charge. The trial court sentenced Espino to serve 72 months to 15 years' imprisonment for both convictions. Espino now appeals by right, arguing that the trial court failed to properly instruct the jury as to the affirmative defenses of duress and self-defense, and that defense counsel violated his right to effective assistance of counsel by failing to request such instructions. For the reasons set forth in this opinion, we reverse and remand for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
Espino's girlfriend and Jesus de la Rosa had some sort of altercation at work. According to Espino, Jesus assaulted his girlfriend. Sometime after he learned of the assault, Espino and a passenger drove a white pick-up truck to the de la Rosa residence. A neighbor of the de la Rosa's saw the white pick-up truck park at about 10:00pm. The neighbor walked outside to see what was going on.
Juan Gonzalez Hernandez, a member of the de la Rosa family, testified that Espino and his passenger confronted Jesus' father, Hugo, and hit him with "something, an object, not just fists and feet." According to Hernandez, he, Hugo, Jesus, and one other family member pursued Espino and his passenger. In his statements to police, Espino confirms that four people pursued him to his car. Espino, however, told police that as soon as he had arrived at the de la Rosa residence, those same family members jumped him and he fled. The neighbor estimated that the time Espino left his truck to the time he returned was a matter of minutes.
Hernandez testified that he grabbed the passenger door and tried to open it while Jesus stood on the running board of the driver's side and tried to open that. The neighbor testified to seeing two individuals grab onto the driver's side of the truck. Espino hit the gas. The truck sped off and hit several tall bushes, some trees, and hit a nearby telephone pole so hard the light fixture came off the top and crashed to the ground, causing the light to go out. Espino described this to police as a "high speed" departure, "cutting through yards" to get away from the people who jumped him. The neighbors called the police. Espino left the scene in his damaged pick-up truck.
At about 10:30pm that same evening, Van Buren County Sheriff's Deputy Daniel Rowse was on routine patrol when he observed a white pick-up truck speeding. Deputy Rowse pursued the truck but only momentarily, as dispatch sent him to another location in the opposite direction. Soon after changing directions, someone jumped out of some shrubbery on roadside and flagged down Deputy Rowse. In mostly Spanish, the person asked for help and led the Deputy to a telephone pole. There were ten to fifteen bystanders present and next to the pole, unmoving in the grass, was Jesus. A large prybar lay next to him. A baseball bat was also recovered nearby. A floor jack handle was found at the scene and then went missing. It was later discovered in the possession of a member of the de la Rosa family. Jesus' head was covered in blood, his teeth were out-of-place, and his cheek had a hole through it. Jesus had no pulse and was later pronounced dead.
According to bystanders at the scene, Jesus had been hanging on the side of a vehicle when the vehicle hit the telephone pole, large shrubbery and a large tree. Jesus fell off at some point, causing the injuries. The vehicle was described as a white pick-up truck with a ladder, a description that matched the vehicle Deputy Rowse had earlier seen speeding.
Meanwhile, two other deputies had pulled over the speeding white truck, and, having received information that the driver and passenger may be involved in the telephone pole accident, also placed the individuals under arrest. The pick-up truck had extensive damage to the front, a missing driver's side mirror, brush in the tire wells, a flat rear tire, and extensive blood spatter. Two cell phones were recovered from the truck. The driver was identified as Espino.
Espino was bleeding from his right ear. Following the traffic stop, Espino was transported to the hospital to treat his laceration. Espino's blood alcohol level was measured at 0.110 grams per 100 milliliters of blood, exceeding the legal limit for operating a motor vehicle, and Espino was driving without a valid driver's license.
Espino had a two-day jury trial. The prosecutor summarized the facts in closing as
[Espino] [w]ent over to the house of Jesus de la Rosa looking for a fight. When the fight didn't go his way, and the fight pursued him, he tried to flee to get away from that fight, and, in doing so, he killed Jesus de la Rosa.
Defense counsel echoed that statement in closing, and emphasized that Espino "took off running to save his own life." Defense counsel agreed to the instructions provided by the trial court; neither a duress instruction nor a self-defense instruction was provided. The jury convicted Espino on two charges-operating while license is suspended and revoked causing death and operating while intoxicated causing death-and acquitted on a third-fleeing the scene of a fatal accident.
Espino appealed his convictions, moved for a new trial arguing that defense counsel was ineffective for not requesting that the jury be instructed as to the affirmative defenses of duress and self-defense, and requested an evidentiary hearing pursuant to People v Ginther, 390 Mich. 436; 212 N.W.2d 992 (1973). The trial court denied Espino's motion for an evidentiary hearing and denied him a new trial. Espino now appeals his convictions. Believing an evidentiary hearing to be unnecessary to further develop the record, we instead reverse and remand for a new trial.
II. WAIVER BY TRIAL COUNSEL
Espino argues that the trial court plainly erred by failing to instruct the jury on the affirmative defense of duress because he was being chased by multiple people who may have had a dangerous weapon, and therefore, he chose to drive away, killing Jesus in the process, in order to avoid being harmed by Jesus' family. Espino also argues that, although his actions were not intentional, he was still entitled to a jury instruction as to self-defense because the doctrine of selfdefense is not limited to assaultive crimes.
"To preserve an instructional issue for appeal, a defendant must object to the instruction before the jury deliberates." People v Gonzalez, 256 Mich.App. 212, 225; 663 N.W.2d 499 (2003). See also MCR 2.512(C). After both sides rested, the trial court noted on the record that it had gone over the proposed instructions with counsel, and it asked, "Any objections to the instructions as I intend to provide them, Counsel?" Defense counsel answered, "No, Judge." After reading the instructions to the jury, the trial court again asked the parties, "Counsel, any objections to my final instructions?" Defense counsel again answered, "No, Judge." By expressly approving the instructions, defense counsel has waived this issue. See People v Lueth, 253 Mich.App. 670, 688; 660 N.W.2d 322 (2002), citing People v Carter, 462 Mich. 206, 215; 612 N.W.2d 144 (2000). Thus, we can only address the lack of particular jury instructions through an ineffective assistance of counsel analysis.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Espino also argues that defense counsel was ineffective for not requesting instructions regarding duress and self-defense. We agree as to the duress defense and as a result, refrain from addressing self-defense.
"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law. A judge first must find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). Espino moved for a new trial, which the trial court denied. Espino also moved for a remand in this Court, which this Court denied. Therefore, our "review of this issue is limited to mistakes apparent on the record." People v Jackson, 292 Mich.App. 583, 600; 808 N.W.2d 541 (2011).
People v Espino, unpublished order of the Court of Appeals, entered February 28, 2024 (Docket No. 363814).
In People v Armstrong, 490 Mich. 281, 289-290; 806 N.W.2d 676 (2011), the Michigan Supreme Court stated:
A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel. First, the defendant must show that counsel's performance fell below an objective standard of reasonableness. In doing so, the defendant must overcome the strong presumption that counsel's assistance constituted sound trial strategy. Second, the defendant must show that, but for counsel's deficient performance, a different result would have been reasonably probable. [See also Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984).]
"A criminal defendant has the right to have a properly instructed jury consider the evidence against him." People v Mills, 450 Mich. 61, 80; 537 N.W.2d 909 (1995). "[T]he trial court is required to instruct the jury concerning the law applicable to the case and fully and fairly present the case to the jury in an understandable manner." Id.
A. COUNSEL SHOULD HAVE REQUESTED A DURESS INSTRUCTION
Duress is a "common-law affirmative defense" that "does not negate any offense element but, rather, excuses the offense." People v Gafken, 510 Mich. 503, 511; 990 N.W.2d 826 (2022) (quotation marks and citation omitted). "The rationale of the defense of duress is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person." Id. (quotation marks and citation omitted). "[B]efore a defendant is entitled to an instruction on the defense of duress, he must establish a prima facie case" of the elements of duress. People v Lemons, 454 Mich. 234, 248; 562 N.W.2d 447 (1997) (quotation marks and citation omitted). The elements of duress require that the threatening conduct was sufficient to both objectively and subjectively create the fear of death or serious bodily harm at the time of the act, causing the defendant to commit the act to avoid the threat. Id. at 247. However, "the threat must have arisen without the negligence or fault of the person who insists upon it as a defense." Id. (quotation marks and citation omitted).
In the present case, Espino told officers that he went to confront Jesus in response to Jesus' altercation with Espino's girlfriend earlier in the day. According to a member of the de la Rosa family, Espino struck first, attacking the family member. Although four members of the de la Rosa family pursued Espino, there is no testimony as to their possessing any weapon and an observing neighbor believed one family member hanging on to Espino's truck struck the truck with a sandal.
Nevertheless, we believe this record establishes a prima facie case of duress. Through testimony, it is made clear that within minutes, Espino is out-numbered and out-matched. At least two of the four pursuing de la Rosa family members were well over 200 pounds. According to Espino's initial reports to police, he was jumped by four members of the de la Rosa family and some had weapons, including a metal pipe. That and a baseball bat were recovered at the accident scene.
In short, the record establishes that Espino was experiencing threatening conduct that was sufficient to both objectively and subjectively create the fear of death or serious bodily harm. There is likewise some testimony that Espino got into the vehicle and "stepped on the gas to get away from everybody." In other words, there is prima facie evidence that Espino committed an unlawful act (driving while intoxicated, driving without a license) in order to escape a great harm- great bodily injury or death. Admittedly, there is also evidence that Espino's intent was to protect his vehicle, not his person, but that does not detract from the prima facie case of duress presented.
We reiterate the holding from our Supreme Court that to present a prima facie case of duress, the accused need only provide evidence that
A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm.Lemons, 454 Mich. at 247. Notably, whether Espino was negligent or not in causing these circumstances is not an element requisite to getting a duress instruction. Espino is correct when he asserts that whether he was negligent or at fault is a question for the jury.
Use note 1 for the Model Criminal Jury Instruction for duress addresses this very issue and provides an optional addition to the duress instruction "where there is some evidence that the defendant found himself in the position of having to commit the crime through his own fault or negligence." Notably, M Crim JI 7.6 also states that "Michigan law is unclear on whether a defendant can claim duress only where the defendant is completely free of fault" but our reading of Lemons dictates otherwise. And while we do not deny that Espino had some role in bringing about the circumstances that ultimately proved threatening to his person, we doubt that the Michigan Supreme Court contemplated the unlawful driving to a location, even if to pick a fight, as the type of negligence that negates the ability to claim duress. Albeit in the context of selfdefense, our Supreme Court has already stated that an individual may be engaged in wrongful conduct in the first instance and still avail themselves of an affirmative defense if the wrongful conduct is "independent of the assault" which is life-threatening. People v Townes, 391 Mich. 578, 592-593; 218 N.W.2d 136 (1974). We reiterate, whether the threat to Espino's person arose because of his fault or negligence is a question that should have been posed to the jury.
M Crim JI 7.6(2)(e): Five, the situation did not arise because of the defendant's fault or negligence.
Having found that the duress instruction would have been proper here, we find that counsel's representation fell below an objective standard of reasonableness in failing to request the same.
As an initial matter, defense counsel did not contest that Espino was intoxicated and without a license when he did drive erratically, thereby almost ensuring a guilty verdict barring any affirmative defense. A person is guilty of OWI causing death if that person, whether licensed or not, operates a motor vehicle while intoxicated and, by the operation of that motor vehicle, causes the death of another person. MCL 257.625(4)(a). A person is guilty of DWLS causing death if that person has never applied for a driver's license, he or she operates a vehicle, and by operation of that motor vehicle, he or she causes the death of another person. MCL 257.904(4). Instead, defense counsel essentially argued that Espino operated his vehicle under duress without requesting a duress instruction. During opening statements, defense counsel described a "chaotic scene" where after the de la Rosa family "split [Espino's] head open" he was "running for his life" and the family was chasing him. Espino drove "haphazardly" due to the family members attached to his car and causing further disturbance. In closing, defense counsel argued Espino took off to save his own life. In other words, defense counsel "presented evidence and arguments leading the jury to an acquittal . . . only to deprive jurors of a judge-given map to reach that destination." People v Leffew, 508 Mich. 625, 646; 975 N.W.2d 896 (2022). Had the jurors had a such a map, there is a reasonable likelihood of a different outcome.
B. HAD THE DURESS INSTRUCTION BEEN READ, THERE IS A REASONABLE LIKELIHOOD OF A DIFFERENT OUTCOME
Here, a duress instruction would have been read and counsel's failure to request one was objectively unreasonable. To obtain any relief though, Espino must show that it is reasonably likely that he would achieve a different outcome at trial had the duress instruction been provided.
To that end, we highlight an important observation made by Espino. Espino was acquitted of his third charge-leaving the scene of an accident causing death. The instruction provided to the jury with respect to that charge included that leaving such a scene was justified where "there was a reasonable and honest belief that remaining at the scene would result in further harm." Therefore, the verdict in the present case indicates that the jury may have understood Espino to be at risk of serious harm had he stayed at the scene where his vehicle hit a telephone pole. This so closely resembles the elements of duress that we agree it to be at least reasonably probable that an acquittal could have resulted for one or more of the remaining two charges Espino faced.
After all, "a reasonable probability need not rise to the level of making it more likely than not that the outcome would have been different. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." People v Grant, 470 Mich. 477, 486; 684 N.W.2d 686 (2004)
Because Espino received ineffective assistance of counsel and there is a reasonable likelihood that the outcome of his trial would have been different if the jury had received a duress instruction, we reverse and remand for a new trial. Given this relief, we decline to address whether the same would be afforded for counsel's failure to request a self-defense instruction. We do not retain jurisdiction.
Kirsten Frank Kelly (concurring in part and dissenting in part).
I agree with the majority's conclusion that defendant waived any claim of instructional error when his trial attorney approved the lower court's jury instructions. However, in my view, it is not a close question whether defendant was deprived the effective assistance of counsel because a duress instruction was not requested by his attorney. Defendant became angry after his girlfriend told him that the victim assaulted her at work. As a result, defendant not only went to the victim's house looking for a fight, the uncontradicted testimony was that he violently started one in an apparent act of retribution. When it became clear defendant was going to lose that fight, he fled and killed the victim with his car. Because defendant cannot carry his heavy burden to show that the outcome of the trial would have been different had the instruction been given, I would affirm defendant's convictions, and I respectfully dissent from the majority's conclusion that defendant is entitled to a new trial.
I. BASIC FACTS AND PROCEDURAL HISTORY
On August 21, 2020, the victim and Gloria Ortega-defendant's girlfriend-got into an altercation at a pepper plantation where the victim, Ortega, and defendant worked. Defendant told law enforcement that the victim assaulted his girlfriend and he went to the victim's house with a friend to confront the victim. A neighbor testified that he saw two individuals park and leave their vehicle, a white truck, with the engine on. Juan Gonzalez Hernandez, the uncle of the victim by marriage, stated that he saw defendant's white pickup truck parked that night and that he saw defendant and another individual hitting another one of the victim's uncles, Hugo de la Rosa, with a pipe or a bat. Hernandez testified that he, his wife, the victim's father, and the victim chased after defendant because they did not want him to escape.
The neighbor testified that he later saw the two individuals-defendant and his friend- running back to their truck. As the two got back into their truck and shut the doors, three individuals, including the victim, caught up to them and began hitting the truck with their sandals. Hernandez testified that he went to the passenger side of defendant's truck, and the victim went to the driver's side, hanging onto the truck on the outside of the door. The truck started moving "fast" as defendant "stepped on the gas." As defendant was driving away, the truck drove over some large shrubs and then hit a telephone pole. Defendant fled the scene, and the victim was subsequently found deceased and lying on the ground.
After defendant was convicted, he moved for a new trial, arguing that his trial attorney was ineffective for not requesting jury instructions related to duress and self-defense. The trial court denied the motion, stating, as relevant here, that defendant
has not established that trial counsel's failure to request a duress instruction fell below an objective standard of reasonableness, or undermine[d] confidence in the trial. The defense of duress is not available when the threatening conduct that compelled a defendant's criminal act arose due to the negligence or fault of the defendant.
I agree with the trial court.
II. STANDARDS OF REVIEW
"A claim of ineffective assistance of counsel is a mixed question of law and fact." People v Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008). "A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." Id.
III. ANALYSIS
"To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the 'counsel' guaranteed by the Sixth Amendment." People v Cooper, 309 Mich.App. 74, 80; 8677 N.W.2d 452 (2015) (quotation marks and citations omitted). "Whether defense counsel's performance was deficient is measured against an objective standard of reasonableness." People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009). Thus, "[t]o succeed on a claim of ineffective assistance of counsel, the defendant must show that, but for an error by counsel, the result of the proceedings would have been different, and that the proceedings were fundamentally unfair or unreliable." Petri, 279 Mich.App. at 410. "Trial counsel is responsible for preparing, investigating, and presenting all substantial defenses." People v Chapo, 283 Mich.App. 360, 371; 770 N.W.2d 68 (2009). "A substantial defense is one that might have made a difference in the outcome of the trial." Id. (quotation marks and citation omitted).
The affirmative defense of duress "is a common-law affirmative defense" that "is applicable in situations where the crime committed avoids a greater harm." People v Lemons, 454 Mich. 324, 245-246; 562 N.W.2d 447 (1997). "The rationale of the defense of duress is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person." Id. at 246 (quotation marks and citation omitted). "In order to properly raise the defense, the defendant has the burden of producing some evidence from which the jury can conclude that the essential elements of duress are present." Id. (quotation marks and citation omitted). Thus, the defendant must produce "some evidence" of the following:
A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm. [Id. at 247 (footnote omitted).]
In Lemons, the Michigan Supreme Court further clarified that "[t]he threatening conduct or act of compulsion must be present, imminent, and impending, that a threat of future injury is not enough, and that the threat must have arisen without the negligence or fault of the person who insists upon it as a defense." Id. (quotation marks and citation omitted; citation cleaned up and emphasis added).
The majority concludes that defendant is entitled to a new trial because, in their view, the outcome of the trial would have been different had the instruction been given. This is because "the jury may have understood Espino to be at risk of serious harm had he stayed at the scene where his vehicle hit a telephone pole." People v Espino, unpublished per curiam opinion of the Court of Appeals, issued __ (Docket No. 363814), p 10. While the speculation regarding what the jury believed may be true-it may not-I respectfully disagree that it is relevant to the determination of whether the jury believed that defendant was negligent or at fault for causing the death to occur in the first place.
According to defendant, his girlfriend was assaulted at work. Instead of either party calling the police, defendant and his friend drove to the victim's house with the intention of causing physical harm. And there is no dispute among the witness testimony that defendant instigated the altercation by beating the victim's uncle with a pipe or bat. Only when it became clear to defendant that the victim and his family were going to defend their family member from serious harm did defendant attempt to extricate himself from the situation. Under this set of facts, I have little trouble concluding that there was not a reasonable probability that the jury would have concluded that defendant was neither negligent nor at fault for causing the very threat from which he was attempting to flee.
The majority incorrectly relies on the jury's decision to acquit defendant on the charge of leaving the scene of an accident causing death. This is a mistake because to decide defendant's culpability for that crime, the jury was never asked to determine whether defendant was negligent or at fault for the accident that he later fled from. See MCL 257.617 (stating that a driver who is "involved in an accident" is required to remain at the scene). Had the jury been asked to make such a determination, I have little doubt that the jury would have concluded that defendant, at minimum, was negligent in causing the accident when he drove over the shrubs and struck the pole. Moreover, the two issues are conceptually distinct. Defendant's criminal culpability related to his decision to go to the victim's house and violently beat the victim's uncle with blunt force is, for purposes of this analysis, completely unrelated to whether the jury believed defendant's continued presence at the scene would result in further harm. As a result, I cannot conclude that defendant was deprived the effective assistance of counsel, and I respectfully dissent.