Ineffective assistance of counsel; Voir dire; Failure to challenge a juror; Alleged law-enforcement bias; Prosecutorial error; Civic-duty argument; Improper opening statement; Harmless error; Jury instructions; Waived claim for failure to give elements in preliminary instructions

The court held that defendant failed to establish ineffective assistance during jury selection, the prosecutor committed nonprejudicial error by using hypothetical automobile accidents in opening statement, and defendant waived his instructional-error claim. He was convicted of operating an uninsured and unregistered vehicle after admitting that he had been driving the truck and that it was uninsured. On appeal, defendant first argued counsel should have challenged Juror 87 after the juror initially suggested police might have greater expertise concerning vehicle matters. The court found that “[t]he record does not support that claim.” After the trial court clarified that the officers were not expert witnesses, the juror stated that he would give their testimony no greater weight and could remain impartial. Thus, “the record does not support that counsel’s failure to challenge Juror Number 87 was objectively unreasonable or that there is a reasonable probability that the outcome would have been different.” Counsel also was not ineffective for declining to individually question the remaining jurors because defendant failed to show further inquiry would have revealed bias, and he did not overcome the presumption that counsel’s voir dire strategy was sound. As to the prosecutor’s opening, however, the court concluded that hypothetical scenarios asking jurors to imagine being injured by uninsured or unregistered drivers “had nothing to do with the facts the evidence would show in this case.” Their effect was “to arouse the jurors’ fears and to enlist their sense of civic duty,” making the argument “a textbook example of prosecutorial error.” But reversal was unwarranted because the jury was repeatedly instructed that counsel’s statements were not evidence and “the evidence of defendant’s guilt was overwhelming and essentially undisputed.” Finally, defense counsel expressly stated she had no objection to the preliminary jury instructions, and “[t]hat affirmative approval of the instructions waived the claim of instructional error.” Affirmed.