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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 19, 2015

v No. 319143
Kalamazoo Circuit Court THOMAS EDWARD MARTIN, LC No. 2013-000376-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Defendant Thomas Edward Martin appeals by right his conviction s of third-degree home invasion, MCL 750.110a(4), and malic ious destruction of propert y valued at more than $200 but less than $1,000, MCL 750.380(4)(a). Because we conclude there were no errors warranting relief, we affirm.

Martin first argues that his trial lawyer’s failure to investi gate the relationship between two jurors during voir dire, or objec t to the trial court’s fai lure to investigate th e jurors, amounted to ineffective assistance of counsel warranting relief. Becaus e the trial court did not hold an evidentiary hearing on Martin’s ineffective assistance claim, 1 our review is limited to errors that are apparent on the record alone. People v Gioglio (On Remand) , 296 Mich App 12, 20; 815 NW2d 589 (2012), remanded for r esentencing 493 Mich 864.

In order to establish the right to relief, Martin must show th at his trial lawyer’s acts or omissions during voir dire fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability t hat, but for his lawyer’s unprofessional conduct, the result of the proceeding would have been different. Id. at 22. When reviewing a trial lawyer’s conduct, this Court must indulge a s trong presumption that his or her conduct was within the wide range of reasonable professional co nduct. Id. Indeed, this Court

1 Martin did move for a remand to the trial court for an evident iary hearing, but this Court denied
the motion after Martin “failed to show that further factual de velopment of the record” was necessary to properly consider the appeal. See People v Martin , unpublished order of the Court of Appeals, entered June 30, 2014 (Docket No. 319143).-2- must affirmatively entertain th e range of possible reasons for the conduct and, if this Court determines that there might have been a legitimate strategic re ason for the act or omission, we must conclude that his or her conduct fell within the range of reasonable and professional
conduct. Id. at 22-23.

During voir dire, the trial cour t asked the prospective jurors whether any of them knew each other. A juror (Juror Two) indicated that she knew anothe r juror (Juror One), even though Juror One did not indicate that she knew any other juror. The trial court questioned Juror Two outside of the presence of the other jurors and she stated that she knew Juror One, that her
interaction with Juror One was “ very brief,” “very civil,” had occurred approximately one year previously, and that the inter action would not affect her delib erations. In addition, Juror Two opined that their acquaintance with Juror One was so minimal th at Juror One might not remember her, which appeared to be the case given that Juror On e did not, in fact, indicate that she knew or recognized Juror Two.

On this record, we cannot conclude that Martin’s trial lawyer’ s conduct with regard to these two jurors fell below an objective standard of reasonable ness. “The purpose of voir dire is to elicit enough information for development of a rational basi s for excluding those who are not impartial from the jury.” People v Tyburski , 445 Mich 606, 618; 518 NW 2d 441 (1994) (opinion by Mallett, J.); see also MCR 6.412(C)(1). In this case, Marti n’s lawyer learned all that was necessary to ensure that the jurors could be impartial. Given the evidence that the interaction between the jurors was so minor that Juror One might not even r emember Juror Two, Martin’s trial lawyer could reasonably con clude that further inquiry was unnecessary and that there was no cause to strike either juror. For that same reason, his law yer could reasonably determine that it was unnecessary to ask the trial court to investigate furthe r. Martin has not overcome the presumption that his lawyer’s conduct was within the range of c ompetent professional conduct. Gioglio , 296 Mich App at 22-23.

In addition, Martin has failed to establish that Juror One was partial. People v Miller

, 482 Mich 540, 550; 759 NW2d 850 (2008) (stating that it is the defendant’s burden to demonstrate that a juror was partial or, at the least, that his or her impartiality was reasonably in doubt). Juror One swore to truthfully answer all of the questi ons during voir dire, and she did not indicate during voir dire that she knew Juror Two. In addi tion, Juror One agreed to render
her verdict in accord with the trial court’s instructions and o n the basis of the evidence. She also promised to be fair and swore to try the case justly. Moreover , the jurors were instructed that they must not let prejudice influence their decisions and that each juror was required to make up her own mind about the verdict because any verdict must represe nt the individual, considered judgment of each juror. Jurors are presumed to follow their in structions. People v Petri , 279 Mich App 407, 414; 760 NW2d 882 (2008). There is no evidence t hat that either juror held a

bias or was otherwise unable to follow the trial court’s instru ctions. Martin has not shown that his trial lawyer’s failure to further investigate or object pre judiced his trial. Gioglio , 296 Mich App at 22.

Martin also argues on appeal that the trial court erred when i t instructed the jurors that they could submit questions to the witnesses and that this erro r deprived him of his constitutional right to due process. Martin’s t rial lawyer expressed satisfac tion with the preliminary jury instructions and thereby waived any objection. People v Kowalski , 489 Mich 488, 504-505; 803-3- NW2d 200 (2011). Nevertheless, even assuming that this issue w as not waived, the trial court did not plainly err by giving this instruction. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

Trial courts generally have the discretion to allow the jury t o ask questions through the court and, if it permits such questioning, the trial court must inform the jurors of the procedure to be followed. MCR 2.513(I); MCR 6.001(D); see also People v Heard , 388 Mich 182, 187-188; 200 NW2d 73 (1972). In the present case, Martin does not claim that the trial court failed to utilize a proper procedure with regard to juror questions, nor does he claim that any question submitted by a juror that was asked of a witness was improper. He only argues that the trial court generally erred by permitting the jury to submit question s to the witnesses, that this practice violates due process, and t hat as a matter of law refo rm, the practice should stop.

Our Supreme Court has already de termined that the practice of allowing jury questions serves legitimate purposes: it helps “unravel otherwise confusi ng testimony” and aids “the factfinding process.” Heard , 388 Mich at 188. Because we are bound by our Supreme Court’s determination that the practice is permissible, People v Tierney , 266 Mich App 687, 713; 703 NW2d 204 (2005), we cannot agree t hat with Martin’s contention that the practice must be reformed. In addition, Martin’s argument that the questions pe rmitted the jury to deliberate before the close of trial is unsupported because there is no ev idence in the record that the jurors began deliberating in this case before the close of the trial. Martin failed to meet his burden to furnish a record to verify the factual basis for his argument t hat the jury deliberated before the

conclusion of the case. People v Elston , 462 Mich 751, 762; 614 NW2d 595 (2000) . Finally, the trial court instructed the jurors that it was important for the m to keep an open mind and not make a decision about anything in the case until they went to the ju ry room to decide the case, and jurors are presumed to follow their instructions. Petri , 279 Mich App at 414.

There were no errors warranting relief.

Affirmed.

/s/ Michael J. Kelly /s/ William B. Murphy
/s/ Joel P. Hoekstra