Jury instructions & verdict form; Waived issues; Ineffective assistance of counsel; Failure to object to the instructions & jury verdict form

Holding that defendant-Carter-Carr “waived any issues with his jury instructions and verdict form and . . . failed to demonstrate his counsel was ineffective[,]” the court affirmed his CSC I convictions and sentences. The court disagreed in both respects with Carter-Carr’s claims that (1) “the trial court coerced a jury verdict by failing to fulfill the jury’s request for a transcript of [the complainant, twelve-year-old-]MN’s testimony and (2) the jury verdict form was improper and he was entitled to a new trial.” Carter-Carr argued his challenge to the trial “court’s response to juror questions [was] an unpreserved constitutional issue and should be reviewed for plain error affecting his substantial rights.” The court held that “in this case, defense counsel did not fail to object to challenged jury instructions as given. Rather, defense counsel here expressly approved the trial court’s instructions in response to the jury’s questions on day three of trial by answering ‘yes’ when asked if satisfied with both instructions. ‘This constitutes a waiver that extinguishes any error. Thus, this case does not concern unpreserved error where no timely objection was made.’” The court held that because “Carter-Carr waived, as opposed to forfeited, his rights, there is no error to review.” It concluded that these “alleged errors can only be considered in the context of an ineffective assistance of counsel claim, which we do later in this opinion.” It found that as “with the first issue, defense counsel expressly approved the jury instructions and verdict form as given[.]” The court concluded that this “express approval also constituted waiver, extinguishing any error in the instructions and verdict form as given.” The court only considered “the alleged error with the jury verdict form in the context of an ineffective assistance of counsel claim.” It determined that defense “counsel’s failure to object to the trial court’s response to the jury’s request to review MN’s testimony arguably was objectively unreasonable.” On this record, the court could not “conclude the trial court coerced a jury verdict and thus cannot find counsel’s representation unreasonable in failing to object to the jury instructions.” Finally, as to “the jury verdict form as potential ineffective assistance of counsel[,]” the court held that read together, the trial court’s CSC I “instruction and corresponding [CSC I] options on Carter-Carr’s verdict form fairly presented the issues to be tried and sufficiently protected [his] rights.” He did not show “that if defense counsel asked for the verdict form to conform to M Crim JI 3.32, the result of the proceedings would have been different.”