Ineffective assistance of counsel; Failure to challenge a juror’s empanelment; People v Unger; Admission of other acts evidence under MCL 768.27b; Separation of powers; People v Mack

The court rejected defendant’s claim that defense counsel was ineffective for failing to challenge a juror’s empanelment, and found that his MCL 768.27b argument failed under the Michigan Supreme Court’s decision in Mack. Thus, it affirmed his convictions of third-degree child abuse, fourth-degree child abuse, and domestic violence, second offense. He argued that defense counsel was ineffective for not challenging the empanelment of a juror (Juror 12) who had experienced child abuse 53 years earlier. Before “Juror 12 was voir dired, defense counsel exercised all five of his peremptory challenges and successfully moved for two jurors to be excused for cause on the basis that they were biased in favor of the prosecution.” Juror 12 informed the trial court that he was a child abuse victim. While he “stated that his past experience with child abuse could possibly affect his ability to impartially hear the children’s testimonies in this case, he clearly indicated that: (1) he could ‘pretty well judge with common sense,’ and (2) his past experiences would not make him more likely to find defendant guilty if he was ‘in the middle of the road . . . .’” When defense counsel was asked if he “had any challenges for cause, he stated, ‘I think the juror actually gave the standard every juror would do.’” The court concluded he “thoroughly analyzed and voir dired each juror that was empaneled in this case, as evidenced by his use of all five peremptory challenges as well as two successful motions to excuse jurors for cause. Defense counsel was clearly aware of how to excuse a juror for cause, yet he chose not to do so in this instance.” The court noted that it will not substitute its “‘judgment for that of defendant’s counsel, nor will we use the benefit of hindsight to assess counsel’s performance.’” Defendant also argued the admission of other acts evidence from his ex-wife “about an incident of domestic violence that occurred between them in 2018” violated the separation of powers and made his trial unfair. The Supreme Court decided the same issue in Mack, permitting evidence of a “defendant’s commission of other domestic violence acts where, as here, defendant is accused of an offense involving domestic violence.”