People of Michigan v. Lauro Espino ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 30, 2024
Plaintiff-Appellee, 10:50 AM
v No. 363814
Van Buren Circuit Court
LAURO ESPINO, LC No. 2020-022758-FH
Defendant-Appellant.
Before: SWARTZLE, P.J., and K. F. KELLY and YOUNG, JJ.
K. F. 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
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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 NW2d 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 NW2d 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 NW2d 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 NW2d 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
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Mich 324, 245-246; 562 NW2d 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
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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.
/s/ Kirsten Frank Kelly
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