People of Michigan v. Robert Luciano Uresti ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 08, 2024
Plaintiff-Appellee, 1:53 PM
v No. 365876
Wayne Circuit Court
ROBERT LUCIANO URESTI, LC No. 22-003315-01-FC
Defendant-Appellant.
Before: CAMERON, P.J., and K. F. KELLY and GARRETT, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions for armed robbery, MCL 750.529;
carrying a firearm during the commission of a felony (“felony-firearm”), MCL 750.227b; carrying
a concealed weapon (“CCW”), MCL 750.227; and fourth-degree fleeing and eluding a police
officer, MCL 257.602a(2). Defendant was sentenced to 12 to 30 years’ imprisonment for the
armed robbery conviction, five years’ imprisonment for the felony-firearm conviction, one to five
years’ imprisonment for the CCW conviction, and one to two years’ imprisonment for the fourth-
degree fleeing and eluding conviction. Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Saul Maldonado, the victim of an armed robbery at a gas station in Detroit, Michigan,
testified that, on April 17, 2022, he went to a gas station on Michigan Avenue to buy cigarettes.
As the victim was returning to his vehicle, defendant walked up behind him. The victim
recognized defendant because, on one occasion, defendant had asked him for money, and the
victim gave him $10. Outside of the gas station, defendant put a gun against the victim’s stomach
and took all of the money in his back pocket. Defendant then got on a moped and fled the scene.
He was arrested the next day after a chase through an apartment complex. Officer Michael Canada
entered the apartment and detained defendant outside of a bedroom. Defendant had a small firearm
in the waistband of his pants. Inside the apartment bedroom, Officer Canada found a blue wallet
with defendant’s driver’s license and hundreds of dollars. The wallet also contained another
identification card and a credit card that were in other people’s names.
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During trial and outside the presence of the jury, defense counsel requested that the
prosecutor produce the wallet that contained defendant’s identification and requested the contents
of the wallet be “placed into evidence.” Specifically, defense counsel requested the prosecutor
produce the evidence in order to question the ownership of the wallet and challenge the issue of
identification. Once the jury returned, the prosecutor offered the wallet and its contents, and the
court admitted the evidence. Defense counsel stated he had “[n]o objection.”
Defendant was convicted and sentenced as previously noted, and this appeal followed.
II. PROSECUTORIAL MISCONDUCT
Defendant first argues the trial prosecutor committed “prosecutorial misconduct”1 when
she introduced the contents of defendant’s wallet, which contained evidence suggesting that
defendant had committed other crimes. We disagree.
“To preserve an issue of prosecutorial misconduct, a defendant must contemporaneously
object and request a curative instruction.” People v Isrow, 339 Mich App 522, 529; 984 NW2d
528 (2021) (quotation marks and citation omitted). Here, defendant did not object when the
prosecution introduced evidence of the wallet and its contents at trial. Indeed, defendant
specifically sought the introduction of the evidence and his attorney stated he had “[n]o objection”
when it was admitted. Because of defendant’s request for introduction and his affirmative
statement of “[n]o objection,” defendant waived any challenge to the admission of the evidence or
the prosecutor’s alleged misconduct in introducing it. See People v Kowalski, 489 Mich 488, 504;
803 NW2d 200 (2011) (holding that “express and unequivocal indications” of approval at trial
constitute the waiver of a claim); see also People v Gonzalez, 256 Mich App 212, 224; 663 NW2d
499 (2003) (“Because error requiring reversal cannot be error to which the aggrieved party
contributed by plan or negligence, defendant has waived appellate review of this issue.”). Thus,
this issue has been waived, and we decline to address defendant’s claim of error.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Alternatively, defendant argues that his trial counsel was ineffective for failing to object to
the admission of the wallet and its contents as evidence. We disagree.
“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Anderson, 322 Mich App 622, 627-628; 912
NW2d 607 (2018) (quotation marks and citation omitted). “[A] trial court’s findings of fact, if
any, are reviewed for clear error, and questions of law are reviewed de novo.” Id. at 628.
1
While the term “prosecutorial misconduct” has become a term of art, the majority of claims of
error against the prosecution are “better and more fairly presented as claims of ‘prosecutorial
error,’ with only the most extreme cases rising to the level of ‘prosecutorial misconduct.’ ” People
v Jackson (On Reconsideration), 313 Mich App 409, 425 n 4; 884 NW2d 297 (2015), quoting
People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015).
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A criminal defendant’s right to counsel is guaranteed by both the United States and
Michigan Constitutions. See US Const, Am VI; Const 1963, art 1, § 20. However, for a defendant
to prevail on a claim of ineffective assistance of counsel, he must “show that (1) counsel’s
performance was below an objective standard of reasonableness and (2) a reasonable probability
[exists] that the outcome of the proceeding would have been different but for trial counsel’s errors.”
People v Head, 323 Mich App 526, 540; 917 NW2d 752 (2018) (quotation marks and citation
omitted; alteration in original). Thus, “[e]ffective assistance of counsel is presumed, and [a]
defendant bears a heavy burden of proving otherwise.” People v Johnson, 315 Mich App 163,
174; 889 NW2d 513 (2016). “[D]ecisions regarding what evidence to present, what evidence to
highlight during closing argument, whether to call witnesses, and how to question witnesses are
presumed to be matters of trial strategy.” People v Putman, 309 Mich App 240, 248; 870 NW2d
593 (2015). “This Court does not second-guess counsel on matters of trial strategy, nor does it
assess counsel’s competence with the benefit of hindsight.” People v Russell, 297 Mich App 707,
716; 825 NW2d 623 (2012).
In the proceedings below, defense counsel explicitly requested that the prosecutor “place[]
into evidence” the wallet and its contents that were found in the room searched by law
enforcement. Because identification was at issue in this case, defense counsel sought to challenge
the ownership of the wallet, and consequently, the identity of the perpetrator. In addition to
defendant’s driver’s license, the wallet contained a second driver’s license and a credit card, neither
of which were in defendant’s name. During closing argument, defense counsel argued to the jury
that the wallet did not belong to defendant, and thus, the prosecution’s argument regarding
identification was speculative.
Defense counsel’s decision to request the introduction of the wallet and its contents as
evidence—and the decision that would logically follow to not object to their admission—was
clearly a matter of trial strategy employed in order to challenge the issue of identification. Because
decisions regarding what evidence to present is presumed to be a matter of strategy, which is not
second-guessed in hindsight, see Russell, 297 Mich App at 716, defendant has failed to overcome
the presumption that his trial counsel was effective. Head, 323 Mich App at 540.
Affirmed.
/s/ Thomas C. Cameron
/s/ Kirsten Frank Kelly
/s/ Kristina Robinson Garrett
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