Jury instructions as to the burden of proof; Waiver; Plain error; Late endorsement of a prosecution witness; MCL 767.40a(4); Deadlocked jury instruction; M Crim JI 3.12; Hearsay; Other acts evidence; “Invited error”; Right to counsel during a photographic lineup; People v Hickman; Whether the lineup was unduly suggestive; People v Henry (After Remand)

While the trial court plainly erred when it once instructed the jury that defendant had the burden of proof as to the date of a CCW charge, the court held that, based on the instructions as a whole, this one “mistaken statement did not affect the outcome of the” trial. Further, it did not abuse its discretion in allowing the late endorsement of two police witnesses, and it did not coerce the jury into reaching a verdict by giving M Crim JI 3.12. The court found that defendant was not entitled to relief based on his claims that a police witness’s (C) testimony constituted hearsay and other acts evidence, and rejected his challenges to the admission of identification evidence. He was convicted of armed robbery, FIP of a firearm and ammunition, CCW, felonious assault, and felony-firearm. As to the erroneous burden of proof instruction, the court noted that the “trial court thoroughly instructed the jury multiple times throughout the proceedings that the prosecution had the burden to prove all elements of the charged offenses, beyond a reasonable doubt, and defendant neither had to present evidence nor prove his innocence.” In addition, the written jury instructions did not state that he “had a burden to prove that the offense occurred on a specific date; in fact, they omitted any such element regarding the offense date.” The court noted that the jury sent multiple notes to the trial court during deliberations, including one “requesting clarification on the elements of felony-firearm. There is no indication the jury was confused about the elements of carrying a concealed pistol.” As to the two police witnesses, they were both listed on the prosecution’s witness list filed about “three weeks before the start of the trial despite the fact that they were not endorsed on the witness list.” They were two of the four officers who arrested defendant and they were the only two “listed on the witness list. Presumably, defendant knew about the witnesses.” There was also no evidence that the failure to endorse them was intentional. As to C’s testimony, the trial court ordered that his hearsay statement about another robbery “be stricken from the record and the jury was instructed to disregard” it. Further, defendant elicited the other references to that prior robbery, which constituted invited error. Affirmed.