Jury instruction on the lesser-included offense of third-degree home invasion; MCL 768.32(1); People v. Wilder; People v. Cornell; MCL 750.110a(4); People v. Sands; MCL 750.110a(2) & (3); Prosecutorial error; People v. Thomas; People v. Bahoda; Vouching for the witnesses’ credibility & bolstering their testimony during closing arguments; Soliciting testimony from a witness as to a threatening text message that was not reported to the police; People v. Hackney; Claim that defendant’s Sixth Amendment right to a fair trial was violated by the jury empaneled because it did not represent a fair cross-section of the community; US Const., amend. VI; Const. 1963, art. 1, § 1; People v. Bryant; Ineffective assistance of counsel; Failure to object to the jury composition and selection, failure to object to prosecutorial error, and failure to diligently inquire as to the lack of effort in attempting to obtain from the phone or telecommunication company information as to the text message; Strickland v. Washington; People v. Hoag; Sentencing; Motion to remand for resentencing in light of People v. Lockridge

The court held that although the trial court erred in instructing the jury on the lesser-included offense of third-degree home invasion, the improper jury instruction did not affect the defendant’s substantial rights. Also, the prosecution did not engage in misconduct. Further, defendant failed to establish a prima facie case for violation of the Sixth Amendment’s fair-cross-section requirement as to education level or ties to law enforcement. He was not denied the effective assistance of counsel, and he was not entitled to resentencing. He was convicted of second-degree home invasion and sentenced as a second-offense habitual offender to 88 months to 22 years’ imprisonment, with credit for 259 days served. Defense counsel requested, and the jury was instructed on, the lesser offense of third-degree home invasion. He maintained that, “by providing essentially identical instructions on second-degree and third-degree home invasion, the instructions as a whole were confusing and allowed the jury to convict defendant of the higher offense” (second-degree home invasion) “on no greater proof than would sustain a conviction for the lesser offense (third-degree home invasion), thus lowering the prosecution’s burden of proof on the former.” The record indicated that defense counsel “requested that the jury be so instructed, and affirmatively approved the jury instruction as read.” The court held that although the Wilder and Sands courts were “considering the first-degree home invasion statute, its relevant language is the same as that of the second-degree home invasion statute.” It also held that the “rationale of those cases is therefore equally applicable to” second-degree home invasion, and “either a misdemeanor or felony larceny thus may serve as the predicate offense for second-degree home invasion.” Thus, where, as in this case, the predicate offense for the home invasion charge was a larceny, third-degree home invasion was a lesser-included offense of second-degree home invasion. Nonetheless, under the facts here, a rational view of the evidence did not support the giving of an instruction on third-degree home invasion. There was no record evidence that defendant entered the victim’s home to commit any crime other than a larceny. The trial court erred in giving that instruction. However, because the jury convicted him of the higher charged offense, the improper jury instruction did not affect his substantial rights. Affirmed.