Waiver of jury instruction challenge; Ineffective assistance of counsel; Failure to request a specific unanimity instruction; People v Chelmicki; People v Cooks; Felonious assault; People v Avant

Holding that defendant waived any jury instruction challenge and that defense counsel was not ineffective for failing to request a specific unanimity instruction, the court affirmed her felonious assault conviction. The “proposed jury instructions included a general unanimity instruction, but not a specific unanimity instruction, and the trial court twice asked defense counsel if the defense had any objections to the instructions.” Defense counsel raised an issue about circumstantial evidence, but “did not request a specific unanimity instruction, and he initialed the final instructions before the court read them to the jury. Objecting to another instruction is insufficient to preserve the special unanimity instruction on appeal.” As to her claim that defense counsel was ineffective for not requesting the instruction, she failed to show “the prosecution presented more than one act as evidence of the actus reus of her single criminal offense such that she would have been entitled to a specific unanimity instruction.” The focus of the prosecution’s evidence and argument was on a boxcutter “that defendant used to threaten” victim-H, a specific count. There was testimony that defendant later had a butcher knife, but “that occurred in response to the arrival of [H’s] husband and was directed as much at him, not at [H] alone as stated in the charging document and argued.” And in instructing the jury on the meaning of a “dangerous weapon,” the trial court only referenced the boxcutter, with “no mention of a butcher knife.” Further, the defense witnesses, including defendant, testified that she never had a weapon, and she testified that she did not threaten H or another individual. She maintained this defense on appeal. “In such circumstances, where the jury is making a credibility determination, a defendant is not entitled to a specific unanimity instruction.” Because there was insufficient evidence the instruction would have applied, defense counsel was not ineffective.