                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 10, 2017
                Plaintiff-Appellee,

v                                                                    No. 332598
                                                                     Oakland Circuit Court
SAMMY JOSEPH HALL,                                                   LC No. 2015-254520-FC

                Defendant-Appellant.


Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

     Defendant appeals as of right his jury convictions of first-degree premeditated murder,
MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. We affirm.

        Defendant argues that he was denied the right to a fair trial because one of the jurors,
Juror 2, knew that he was not allowed to perform independent research but still looked up
information online and told other jury members that the gun used to murder the victim in this
case was stolen from Georgia. Defendant argues that the jurors should not have gone forward to
deliberations having “such inflammatory information infusing [their] minds,” and that this
information had an impact on the jurors’ decision. However, during trial, defense counsel
specifically agreed with the trial court’s decision to remove Juror 2 and allow the rest of the jury
to proceed to deliberation. Thus, any error was affirmatively waived, i.e., it was extinguished.
See People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000).

        Defendant also argues that he was denied the effective assistance of counsel because his
attorney did not move for a mistrial based on the misconduct of Juror 2. We disagree. Because a
Ginther1 hearing was not conducted, defendant’s claim of ineffective assistance of counsel is
limited to errors apparent on the record.

       To establish an ineffective assistance of counsel claim, a defendant must show that his
counsel’s performance fell below an objective standard of reasonableness and there is a


1
    People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973).


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reasonable probability that, but for counsel’s error, the result would have been different. People
v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Counsel is presumed to have
afforded effective assistance, and the defendant bears the heavy burden of proving otherwise.
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).

        Defense counsel has wide discretion regarding strategy at trial “because counsel may be
required to take calculated risks to win a case.” People v Heft, 299 Mich App 69, 83; 829 NW2d
266 (2012). This Court will not substitute its judgment for that of trial counsel concerning
matters of trial strategy. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009)
(citation omitted). The fact that a trial strategy fails to work does not mean that its use
constitutes ineffective assistance of counsel. People v Petri, 279 Mich App 407, 412; 760 NW2d
882 (2008).       Rather, “[t]o show that defense counsel’s performance was objectively
unreasonable, the defendant must overcome the strong presumption that defense counsel’s
decisions constituted sound trial strategy.” Heft, 299 Mich App at 83.

        After each juror was questioned individually regarding whether they heard Juror 2’s
comment, and all responded that it would not affect their ability to render an impartial decision,
defense counsel provided a full explanation of his decision not to move for a mistrial on the
record:

               I think that in – in lieu of a motion for mistrial, based on the statements
       that these people made this afternoon, I’m confident that they were truthful, but I
       know also that juror number two is not truthful when he talked to this court.

                                             * * *

               But I – I am saying that the balance of the people who answer the
       questions that were put to them this afternoon, that they were truthful and they’ve
       said that they could set things aside. And I’ve compared this to cases where
       there’s high publicity pre-trial, and – and I asked questions along those lines about
       have you heard anything about this, and the bottom line question is always
       whether that information would have an impact on their ability to be fair, or,
       could they set that aside and base their decisions solely upon the evidence, and –
       and when a person answers in that way there’s no reason not to accept them as a
       juror, and given the answers of these people I’m satisfied that we can go forward
       and I’m not making a motion for a mistrial.

              And I think that if there’s any appellate review of this, if this comes up, I
       want to make it clear that I made a decision based with confidence on the truthful
       statements given by every juror but juror number two. But also, that his false
       statements informed my confidence in the others because they contradicted about
       – or what he had indicated – what he told the court, that he did hear about – or he
       learned about it long ago and he just happened to remember it, and these people
       have made it pretty clear that he looked it up contrary to the court’s instruction on
       that Monday night.

               So, with all of that, I’m satisfied that we can move forward.

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        Defense counsel’s decision not to move for a mistrial was a matter of sound trial strategy
and defendant has not shown that counsel’s performance fell below an objective standard of
reasonableness. Defense counsel provided his reasoning on the record, concluding that the jury
could proceed after Juror 2 was removed, and the rest of the jurors stated that hearing Juror 2’s
comments would not affect their ability to decide this case based only on the evidence presented.
Both defense counsel and the prosecutor requested a special jury instruction that any statement
by a juror was not evidence and should be disregarded and the trial court gave such instruction to
the jury. A mistrial should only be granted when the prejudicial effect of an error cannot be
cured another way, People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008), and, here, the
special jury instruction cured any error. See People v Abraham, 256 Mich App 265, 279; 662
NW2d 836 (2003). “As a general rule, juries are presumed to follow their instructions.” People
v Mette, 243 Mich App 318, 330-331; 621 NW2d 713 (2000). Thus, defendant has not
established that his counsel’s decision not to move for a mistrial fell below an objective standard
of reasonableness and there is a reasonable probability that, but for the error, the result would
have been different. See Jordan, 275 Mich App at 667.

       Affirmed.



                                                            /s/ Henry William Saad
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Thomas C. Cameron




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