Jury instructions; Specific unanimity instruction; People v Cooks; Waiver; Ineffective assistance of counsel; Domestic violence; MCL 750.81(2); Continuous course of conduct; Felonious assault; MCL 750.82

The court held that defendant waived his instructional-error claim and was not denied the effective assistance of counsel by counsel’s failure to request a specific unanimity instruction for the domestic-violence charge. He was convicted of misdemeanor domestic violence after testimony showed that, during an argument with his longtime girlfriend, he hit her hip with a vehicle, shoved her out of the vehicle, and ran over her ankle. On appeal, the court first held that defendant waived the direct instructional claim because counsel objected only to the prosecutor’s unanimity argument on the felonious-assault charge, the trial court gave a curative instruction on that count, and counsel affirmatively approved the final instructions. The court explained that “‘[w]aiver extinguishes any error, leaving nothing for this Court to review.’” The court next held that counsel was not ineffective for failing to seek a specific unanimity instruction on domestic violence because, under Cooks, such an instruction is required only when the acts are “materially distinct” or there is reason to believe the jurors may be confused or disagree about the factual basis for guilt. The court found no such confusion because the jury’s questions showed it was “stuck” on the intent element of felonious assault, not on the actus reus of either charge. The court also held that the domestic-violence acts were not materially distinct because they occurred in the same brief encounter, while the vehicle “never stopped moving,” making the acts “tantamount to a continuous course of conduct.” Because the instruction was not required, counsel was not ineffective for failing to request it. Affirmed.