Ineffective assistance of counsel; Failure to request jury instructions on duress; People v Lemons; Operating while intoxicated (OWI); Driving while license was suspended, revoked, or denied (DWLS); Effect of expressly approving the jury instructions

The court held that (1) a duress jury instruction would have been proper, (2) defense “counsel’s representation fell below an objective standard of reasonableness” for failing to request it, and (3) it was at least reasonably probable “an acquittal could have resulted for one or more of the remaining” charges defendant-Espino faced. Thus, the court reversed his OWI causing death and DWLS causing death convictions and remanded for a new trial. After finding the issue of whether “the trial court plainly erred by failing to” give the duress instruction was waived, the court considered whether counsel was ineffective for failing to request it. Espino told police that after his girlfriend and one of her co-workers (J) had an altercation, he went to confront J. According to a member of J’s “family, Espino struck first, attacking the family member. Although four members of [J’s] 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.” However, the court found “this record establishes a prima facie case of duress.” Testimony made it “clear that within minutes, Espino is out-numbered and out-matched. At least two of the four pursuing [J’s] family members were well over 200 pounds. According to Espino’s initial reports to police, he was jumped by four members of [J’s] 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 [he] was experiencing threatening conduct that was sufficient to both objectively and subjectively create the fear of death or serious bodily harm.” There was also some testimony that he “got into the vehicle and ‘stepped on the gas to get away from everybody.’ In other words, there is prima facie evidence that [he] committed” unlawful acts (OWI, DWLS) “in order to escape a great harm—great bodily injury or death.” The court noted that whether the threat to his “person arose because of his fault or negligence is a question that should have been posed to the jury.” It concluded “a duress instruction would have been read and counsel’s failure to request one was objectively unreasonable.” Further, noting that Espino was acquitted of leaving the scene of an accident causing death, it found there was “a reasonable likelihood that the outcome of his trial would have been different if the jury had received” the instruction.