Flight instruction; Mich Crim JI 4.4; Admissibility of evidence of flight to support an inference of consciousness of guilt; People v Goodin; Defective verdict form; Waiver; Ineffective assistance of counsel; Failure to request a voluntary manslaughter jury instruction; “Heat of passion”; People v Yeager; Prejudice; Failure to object to a defective verdict form; Distinguishing People v Wade

The court held that defendant waived any error as to the trial court’s flight instruction or as to a defective jury form because defense counsel affirmatively approved both. It also held that he was not denied the effective assistance of counsel. He was convicted of second-degree murder, AWIGBH, and felony-firearm, arising out of his fatal shooting of the victim at a bar. On appeal, the court rejected his argument that the trial court erred when it instructed the jury on flight from the crime scene consistent with Mich Crim JI 4.4. “The record shows that defense counsel affirmatively approved the jury instructions, including the flight instruction. Therefore, defendant waived any error and he is not entitled to appellate relief.” The court also rejected his claim that his right to a jury trial was violated because of a defective verdict form. “Because defense counsel affirmatively approved the verdict form, the defense waived any error.” Finally, the court rejected his contention that his trial counsel provided him with ineffective assistance by: 1) failing to request a voluntary manslaughter instruction, and 2) failing to object to a defective verdict form. First, “the facts presented at trial did not support a voluntary manslaughter instruction.” There was “no evidence that defendant acted in a heat of passion.” Second, unlike “in Wade, the jury verdict form provided the jury the opportunity to return a not guilty verdict for both the offense charged and the lesser included offense. Therefore, the jury verdict form did not deprive defendant of the right to a jury trial.” And while the form was imperfect, it “‘fairly presented the issues to be tried and sufficiently protected the defendant’s rights.’” As such, “defense counsel’s decision to forego challenging the verdict form was reasonable and defendant has not satisfied his dual burden of establishing that counsel performed deficiently and that he was prejudiced.” Affirmed.