PEOPLE OF MI V VILLARD T BOGARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 8, 2009
Plaintiff-Appellee,
v
No. 282393
Allegan Circuit Court
LC No. 06-014928-FC
VILLARD T. BOGARD,
Defendant-Appellant.
Before: Zahra, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Defendant appeals by right his jury convictions of three counts of criminal sexual
conduct in the first degree, MCL 750.520b(1)(b).1 We affirm.
Defendant’s convictions arose from repeated instances of sexual contact between
defendant and the then 14-year-old complainant, while defendant was residing with the
complainant and her mother. Defendant denied that he had sexual contact with the victim.
Defendant first maintains that the trial court erred when it presented the following
instruction, which was based on CJI2d 4.4:
There has been some evidence that the defendant left the State of
Michigan after being charged with a crime and this matter was pending trial.
This evidence does not prove guilt. A person may run or hide for innocent
reasons, such as panic, mistake, or fear. However, a person may also run or hide
because of a consciousness of guilt.
You must decide whether the evidence is true, and, if true, whether it
shows that the defendant had a guilty state of mind.
1
Defendant was acquitted of a charge of extortion, MCL 750.213.
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A party waives review of the propriety of jury instructions when he approves the
instructions at trial. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002). Here, trial
counsel twice approved of the instructions as given. Defendant has waived review of the
propriety of the flight instruction.
Defendant also argues that trial counsel rendered ineffective assistance by failing to
object to the flight instruction. We disagree.
In order to preserve the issue of ineffective assistance of counsel, a defendant must move
for a new trial or a Ginther hearing, People v Ginther, 390 Mich 436, 443; 212 NW2d 922
(1973), before the trial court. People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005). If
the defendant fails to preserve the issue, appellate review is “limited to mistakes apparent on the
record.” Id. “If the record does not contain sufficient detail to support defendant’s ineffective
assistance claim, then he has effectively waived the issue.” People v Davis, 250 Mich App 357,
368; 649 NW2d 94 (2002). Because defendant did not move for a new trial or a Ginther hearing
on this ground before the trial court, our review of his ineffective assistance claim is limited to
mistakes apparent on the record.2 “Whether a person has been denied effective assistance of
counsel is a mixed question of fact and constitutional law. A court first must find the facts, and
then must decide whether those facts constitute a violation of the defendant’s constitutional right
to effective assistance of counsel.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). We review questions of constitutional law de novo. Id.
“Effective assistance of counsel is presumed, and [a] defendant bears a heavy burden of
proving otherwise.” People v McGhee, 268 Mich App 600, 625; 709 NW2d 595 (2005). “In
order to overcome this presumption, defendant must first show that counsel’s performance was
deficient as measured against an objective standard of reasonableness under the circumstances
and according to prevailing professional norms.” Id. “Second, defendant must show that the
deficiency was so prejudicial that he was deprived of a fair trial such that there is a reasonable
probability that but for counsel’s unprofessional errors the trial outcome would have been
different.” Id.
Here, trial counsel’s decision to not challenge the flight instruction fell well within the
realm of reasonable trial strategy. The police officer who interviewed complainant testified that
defendant left Michigan in October of 2006, after his preliminary examination. The officer later
received information from complainant about defendant’s location. He stated that defendant was
“found in Florida and brought back” in May of 2007.
Defendant testified that he was released from jail. He alleged that he asked about the fact
that he had charges pending against him, but was told that he was free to leave.3 Defendant
thought that the charges had been dropped. He then moved to Florida. He initially maintained
that he returned to Michigan voluntarily, but later admitted that he waived extradition in Florida.
2
Defendant moved in this Court to remand for a Ginther hearing, but this Court denied the
motion.
3
The parties agree that defendant was released from jail by mistake.
-2-
Given this evidence, as well as the prosecutor’s questioning of defendant as to whether
his sudden move to Florida was due to consciousness of guilt, and his own repeated denials, trial
counsel’s decision to not object to the instruction was objectively reasonable. While the
instruction indicated that flight could reflect consciousness of guilt, it also stated that such
evidence did not prove guilt and that a person might leave the state for innocent reasons. This
fell squarely within defendant’s claim that he believed that the charges against him had been
dropped when he was inadvertently released from jail. Trial counsel reasonably could have
concluded that the jury might view the instruction as providing a rationale to find that
defendant’s conduct was not necessarily indicative of guilt, and that this outweighed any
negative inferences arising from the rather obvious fact that flight could also reflect
consciousness of guilt. Defendant has not shown that trial counsel provided ineffective
assistance.
Defendant also argues that trial counsel provided ineffective assistance by failing to call
two witnesses listed on defendant’s witness list. Defendant asserts that these witnesses would
have supplied testimony that directly contradicted the claims made by complainant.
Decisions as to whether to call witnesses are presumed to be matters of trial strategy.
People v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997). A defendant has the burden of
establishing the factual predicate for his claim of ineffective assistance of counsel. People v
Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Here, defendant has failed to attach any offer of
proof or any affidavits sworn by the proposed witnesses. Defendant has failed to demonstrate
that the witnesses would have been available to testify at trial and that they would have offered
exculpatory testimony. Under these circumstances, defendant has failed to rebut the presumption
of sound trial strategy accorded trial counsel’s decision to not subpoena the witnesses.
Affirmed.
/s/ Brian K. Zahra
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
-3-
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