PEOPLE OF MI V LAMONT TRAVOIS DAWSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 25, 1997
Plaintiff-Appellee,
v
No. 181467
Calhoun Circuit Court
LC No. 94-001536-FC
LAMONT TRAVOIS DAWSON,
Defendant-Appellant.
Before: Gribbs, P.J., and Markey and T.G. Kavanagh,* JJ.
PER CURIAM.
After the death of a seventeen-year-old boy, defendant was charged with first-degree murder,
MCL 750.316; MSA 28.548, use of a firearm in the commission of a felony, MCL 750.227b; MSA
28.424(2), and carrying a concealed weapon, MCL 750.227; MSA 28.424. A jury found defendant
guilty of first-degree murder and felony-firearm. The trial court sentenced defendant to life
imprisonment without parole for the first-degree murder conviction and two years’ consecutive
imprisonment for the felony-firearm conviction. Defendant appeals as of right from his convictions and
sentences. We affirm.
Defendant asserts that the trial court erred in denying his motion for a new trial based upon the
prosecution’s failure to inform defendant that one of the prosecution’s witnesses, Tremaine Watson, had
felonious assault charges pending against him in the same county when he testified at defendant’s trial.
Defendant contends that this omission precluded him from cross-examining this witness to establish the
witness’s bias, interest, and motive in testifying, i.e., to receive favorable treatment from the prosecution
with respect to the other pending charge. We review the trial court’s denial of defendant’s motion for
new trial for a clear abuse of discretion, i.e., whether an unbiased person reviewing the evidence would
conclude that no justification or excuse existed for the trial court’s ruling. People v Herbert (On
Reconsideration), 444 Mich 466, 477; 511 NW2d 654 (1993); see People v McAlister, 203 Mich
App 495, 505; 513 NW2d 431 (1994). We find no abuse of discretion.
* Former Supreme Court justice, sitting on the Court of Appeals by assignment.
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In People v Yarbrough, 183 Mich App 163, 164-165; 454 NW2d 419 (1990), this Court
stated:
[T]he general rule more appropriately stated is that evidence of arrests not resulting in
convictions is inadmissible to impeach the credibility of a witness. Nonetheless, we
believe that an exception to that rule exists where, as here, the evidence is being offered
to show the witness’s interest in the matter, his bias or prejudice, or his motive to testify
falsely because that witness has charges pending against him which arose out of the
same incident for which defendant is on trial.
In denying defendant’s motion, the trial court reviewed this Court’s opinion in People v Torrez, 90
Mich App 120, 124-125; 282 NW2d 252 (1979), where we held that the prosecutor’s failure to
disclose pending perjury charges against the key witness, which charges “certainly related to the
trustworthiness of [the informant-witness’s] testimony,” required that defendant receive a new trial. This
Court in Torrez, supra at 123, adopted the rule set forth in Brady v Maryland, 373 US 83, 87; 83 S
Ct 1194; 10 L Ed 2d 215 (1963), that a defendant’s due process rights are violated if the prosecution
suppresses evidence favorable to an accused if the evidence is “material either to guilt or to punishment”
and the defendant makes a request for the information. The trial court in the case at bar applied the
three Brady factors: (1) the prosecution’s suppression of the evidence after a defense request; (2) the
favorable character of the evidence; and (3) the materiality of the evidence. People v Browning, 104
Mich App 741, 768-769; 306 NW2d 326 (1981). We believe that the evidence of Watson’s
felonious assault charge, unlike the perjury charge against the key informant-witness in Torrez, supra,
was not material.
Unlike the testimony of the key informant-witness who carried out the drug deal, Watson’s
testimony was not material to defendant’s guilt. Rather, Watson testified along with several other
corroborating eye witnesses in support of the victim’s statement that defendant shot him. An abundance
of physical evidence existed to contradict defendant’s claim of self-defense. Further, the fact that Kara
Johnson, the victim’s cousin, and Watson testified in a similar fashion with respect to the events they
witnessed while sitting in Johnson’s car during the shooting weakens defendant’s assertion that Watson
altered his testimony or that Watson, but not Johnson, was a key witness. Finally, this is not an instance
where Watson was part of the crime and could have received leniency with respect to another crime in
exchange for his participation in the crime and testimony at trial, as in Torrez, supra. Thus, we find no
abuse of discretion in the trial court’s finding that Watson was not a key witness and that the fact that
Watson could have lied on the stand was too attenuated for purposes of finding that the evidence was
favorable to defendant or material to defendant’s guilt.
Even assuming that the trial court erred in finding no Brady violation, we find that the error was
harmless. People v Mack, 218 Mich App 359, 364-365; 554 NW2d 324 (1996).1 A harmless-error
analysis is a two-step process when constitutional issues such as due process and the right to cross
examination are involved. Id. at 364. First, we must determine whether the error is harmless beyond a
reasonable doubt, i.e., whether the error had no effect on the verdict. Second, we must determine
whether the error was so offensive to the maintenance of a sound judicial system that it can never be
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regarded as harmless, i.e., the error was deliberately injected by the prosecutor, it deprived defendant
of a fundamental element of the adversarial process, or if it was particularly persuasive or inflammatory.
Id.. citing People v Minor, 213 Mich App 682, 685-686; 541 NW2d 576 (1995).
Here, we conclude that the evidence supporting defendant’s convictions was overwhelming.
Mack, supra. Several witnesses and the victim identified defendant as the attacker, and defendant
admitted to the police that he shot the victim in self-defense. The prosecution also submitted
uncontroverted physical evidence to rebut defendant’s self-defense theory. “Accordingly, any error that
restricted defendant’s ability to impeach the witness[] could not have affected the verdict, and thus was
harmless beyond a reasonable doubt.” Id. Also, although the prosecutor failed to inform defendant of
the pending charges against Watson, the omission was not intentional in light of defendant’s request for
“[a]ny and all copies of the Criminal History and/or convictions of the witnesses who will be called to
testify at trial” (emphasis added). “Further, the error cannot be said to have been particularly
persuasive or inflammatory because, as noted, the evidence against defendant was great, and the error
resulted in subtraction of testimony rather than its addition.” Id. at 365. Accordingly, the error was
harmless and reversal is not required.
With respect to defendant’s myriad claims of prosecutorial misconduct, we find that defendant
failed to object to almost all of the asserted misconduct. Because defense counsel failed to object to
certain alleged improprieties, we will not review these issues on appeal absent a miscarriage of justice,
which will not be found because the prejudicial effect of the prosecutor’s comments could have been
countered by a timely curative instruction. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557
(1994); People v Rivera, 216 Mich App 648; 651-652; 550 NW2d 593 (1996).
With respect to the properly preserved allegations of misconduct or the improper introduction
of evidence, we find no error. Defendant objected to the prosecutor’s statements that could lead the
jury to believe that he had to call all res gestae witnesses, thereby positioning itself as the “champion of
truth,” and to the prosecutor’s failure to call as res gestae witnesses the individuals that the police
witness mentioned during direct examination. With respect to the first claimed error, we find no
miscarriage of justice that denied defendant a fair trial. People v LeGrone, 205 Mich App 77, 82-83;
517 NW2d 270 (1994). The prosecutor’s remarks that he has to take his witnesses as he finds them,
with their faults, did not violate MCL 767.40a; MSA 28.980(1) or the prosecutor’s responsibility to
exercise due diligence in identifying, locating and producing res gestae witnesses. People v DeMeyers,
183 Mich App 286, 291; 454 NW2d 202 (1990). Rather, the comment was made in response to
defendant’s attack on witness Tommy Upton’s credibility in light of Upton’s criminal record. With
respect to the second claimed error, defendant waived the issue by not moving for a new trial on the
basis that the prosecution’s failure to produce these witnesses resulted in prejudice to defendant.
People v Jackson, 178 Mich App 62, 66; 443 NW2d 423 (1989).
Regarding the admission of evidence regarding the kind of neighborhood in which the shooting
took place, we find that the trial court did not abuse its discretion in admitting the officer’s testimony that
the neighborhood was predominantly minority and known for substantial drug activity and “felony
firearms.” McAlister, supra at 505. Defendant merely contends this information was irrelevant and
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improperly implied the existence of a gangland killing, despite the stipulation that the parties entered
regarding the frequency of weapons being fired in that area and defendant’s admission to Detective
Adams that the victim was a gang member.
Finally, in the absence of any cumulative error, defendant’s claim that the prosecutor’s
misconduct was pervasive and intentional cannot prevail.
Affirmed.
/s/ Roman S. Gribbs
/s/ Jane E. Markey
Justice Thomas G. Kavanagh did not participate.
1
In Mack, supra, this Court found that the trial court erred in failing to allow defendant access to the
criminal histories of the prosecution’s witnesses available through the Law Enforcement Information
Network (LEIN), but found the error to be harmless.
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