Motion for new trial; Warrantless search; Legitimate expectation of privacy; Erroneously admitted firearm; Harmless constitutional error; Comparative analysis; People v Soriano; Identification evidence; Accomplice instruction; M Crim JI 5.5 & 5.6; Waiver; Ineffective assistance of counsel; Whether the evidence supported instructions; Instructions inconsistent with the defense theory

The court held that the erroneous admission of a handgun recovered in a warrantless search was harmless beyond a reasonable doubt, and that defendant-Ross waived his accomplice-instruction claim and failed to establish ineffective assistance. On remand from an earlier appeal, the trial court found Ross had a legitimate expectation of privacy in the searched residence and that the handgun was erroneously admitted, but denied a new trial on harmless-error grounds. On appeal, the court held that the prosecution satisfied the harmless constitutional error standard because the remaining evidence identifying Ross as the shooter was substantial. Applying Soriano, the court asked whether the average jury would have found the prosecution’s case “significantly less persuasive” without the handgun and ballistics evidence. It concluded it would not because that evidence “did not supply the critical link identifying defendant as the shooter.” Instead, the identification came from the victim, who knew Ross and selected him from an array, and from a witness’s testimony and cell-phone evidence connecting Ross to the planned transaction. The court also held that Ross waived his accomplice-instruction claim by approving the jury instructions, and counsel was not ineffective for failing to request the instructions because the evidence did not support that the witness knowingly assisted in the offenses and they would have been inconsistent with the defense theory. Affirmed.