Ineffective assistance of counsel; Failure to use remaining peremptory challenges; Failure to call expert witnesses as to the forensic protocol & the side effects of Singulair; Failure to move to strike a police witness’s testimony; Whether the trial court should have sua sponte stricken that testimony; Denial of defense counsel’s request to define “sexual conduct”; People v Lemons

The court held that defendant-Smith “was not denied his constitutional right to a fair trial, his trial defense counsel was not ineffective, and the trial court did not abuse its discretion in denying defense counsel’s request for a” jury instruction defining sexual conduct. Thus, it affirmed Smith’s CSC I and II convictions. He was charged with multiple counts involving two children. His convictions concerned only one (ES); the jury acquitted him of the other charges. As to his claim that his trial counsel was ineffective for not using remaining peremptory challenges and allowing certain jurors (3. 115, and 122) to remain on the jury, the court concluded that the “failure to dismiss Jurors 115 and 122 could have been strategy[.]” Juror 115 disclosed that she had been the victim of sexual assault, and Juror 122 stated that family members had been victims of sexual assault. But both “swore that they could try the case justly.” The court noted that case law requires it “to presume jurors follow their instructions,” and to “accept their oath of impartiality as true.” In contrast, it doubted “that allowing Juror 3 to serve on the jury was sound trial strategy. Juror 3 disclosed her step-daughter was sex-trafficked for five years[.]” When asked whether she could separate the facts of this case and follow the trial court’s instructions, she “responded ‘I believe so.’ Stating ‘I believe so’ is different than stating a firm ‘yes’ when asked whether one can be fair and impartial.” But the court found there was “no reasonable probability that if Juror 3 or any other juror was dismissed, the outcome of Smith’s trial would have been different.” It noted that his supplemental brief offered “no substantive argument that the outcome” would have been altered. And “the record contains evidence of the opposite, that the jury carefully considered the facts and the law and rendered a fair and impartial verdict.” Among other things, “the jury did not wholesale find Smith guilty on every count.” As to the ineffective assistance claims related to defendant’s assertion “the forensic interview protocol was not followed during ES’s forensic interview,” the court found that it appeared the police detective (D) did follow the protocol. Thus, “defense counsel was not ineffective for failing to move to strike [D’s] testimony, and the trial court could not have plainly erred by failing to sua sponte strike” it.