PEOPLE OF MI V ROOSEVELT THEODORE WATTS JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 25, 2008
Plaintiff-Appellee,
v
No. 272369
Wayne Circuit Court
LC No. 06-004272-01
ROOSEVELT THEODORE WATTS, JR.,
Defendant-Appellant.
Before: Schuette, P.J., and Borrello and Gleicher, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of first-degree murder, MCL
750.316, possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b, and felon in possession of a firearm, MCL 750.224f. He was sentenced to concurrent
terms of life for the murder conviction and 38 to 60 months for the felon in possession
conviction and a consecutive term of five years for the felony-firearm conviction. For the
reasons set forth in this opinion, we reverse defendant’s convictions.
This case arises from the shooting death of a 15-year-old victim who at the time of the
shooting was selling crack cocaine from a house where the defendant had been smoking crack.
The victim died of a gunshot wound to the right lower chest. The three inhabitants of the house,
two of whom also had also been smoking crack, testified that they did not see the shooter but that
defendant was the only other person present in the home. Defendant was arrested hours after the
shooting and gave a statement that he was leaving the house when a masked man entered and
shot the victim. Defendant stated that he was close to the shooter when the gun was discharged.
Defendant tested positive for gunshot residue on his face and hand, and when he was arrested, a
package of crack cocaine was found in the back seat of the car where he had been a passenger.
Defendant stipulated that he had a felony conviction for purposes of the felon-in-possession
charge. Defendant testified consistently with his statement to police. On cross-examination, the
prosecutor questioned defendant about his prior armed robbery conviction. Defense counsel
objected, and a side bar was held outside the hearing of the court recorder. No ruling was made
on the record, but the prosecutor continued to ask defendant about his armed robbery conviction.
On appeal, defendant first argues that the trial court abused its discretion in admitting
evidence of his prior conviction for armed robbery. We find that the issue is preserved because
defendant’s counsel objected and the trial court clearly allowed the prosecution to question
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defendant about his conviction. We also find that the trial court erred by failing to make its
ruling on the record.
MRE 609 allows the use of prior theft convictions to impeach the credibility of a
defendant in a criminal trial. However, the trial court is required to make a determination on the
record that the evidence has a “significant probative value on the issue of credibility” and that
the probative value of the evidence outweighs the prejudicial effect. MRE 609. In People v
McDaniel, 256 Mich App 165, 168; 662 NW2d 101 (2003), this Court found that the trial court
committed error by failing to articulate its findings regarding the admissibility of the defendant’s
prior conviction on the record. The trial court in this matter also erred in failing to make its
determination on the record.
This error is a preserved, non-constitutional error subject to a harmless error analysis. Id.
This Court must therefore determine whether defendant established that it was more probable
than not that the error affected the outcome of the proceedings and resulted in a miscarriage of
justice. People v Young, 472 Mich 130, 141-142; 693 NW2d 801 (2005); People v Lukity, 460
Mich 484, 494-496; 596 NW2d 607 (1999). The error is problematic because defendant’s
credibility was extremely important to his defense and because the prior armed robbery
conviction was similar to the murder/robbery scenario the prosecutor argued occurred here. The
error is further compounded by the fact that we are devoid of a record pursuant to MRE 609 to
ascertain from the trial court its rationale for admitting the evidence.
Although defendant stipulated that he had a prior felony conviction for purposes of the
felon in possession charge, an armed robbery conviction is more damaging to credibility than an
unknown felony conviction. If it were not, MRE 609 would not differentiate between crimes of
theft and crimes of dishonesty and other felony convictions, which are not admissible.
Credibility was a significant issue in this case where two of the witnesses against defendant
admitted to using crack cocaine on the night of the shooting and one of these witnesses was a
prostitute. The testimony of the inhabitants of the crack house, who had been using crack, was
not extremely credible. This factor is complicated even further by the fact that the witnesses did
not actually see the shooting. While the prosecution argues that the physical evidence of the
gunshot residue is conclusive evidence of guilt, its presence is explained by defendant’s version
of events, in which he was standing next to the shooter when the gun was fired and then escaped.
That the shooter would allow defendant to escape is not unbelievable where defendant could not
identify the shooter because of the mask and where the shooter likely wanted to approach the
victim to obtain money and drugs. However, because the credibility issue could have gone for or
against defendant even without the jury’s knowledge of defendant’s prior conviction, defendant
did not establish, solely based on credibility, that it was more probable than not the error affected
the outcome of the proceedings.
The other factor to be considered was the similarity between the crimes. Defendant’s
prior conviction was for armed robbery, and the prosecutor asked him about the armed robbery
three times. It seems likely from the evidence presented that the motive for killing the victim
was robbery. The victim carried his money and drugs on his person, likely had both money and
drugs immediately before the shooting, and were without either at the hospital. Although
defendant was not charged with armed robbery in this matter, the evidence indicates that the
crime that occurred was armed robbery and murder.
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The combination of the prejudice to defendant and its direct impact on his credibility
coupled with the similarity between the two crimes more probably than not affected the outcome
of the proceedings, thus resulting in a miscarriage of justice. Defendant is not required to show
that it was highly probable that a miscarriage of justice occurred, only that it is more probable
than not. Lukity, supra at 495. In examining the combination of prejudices discussed above, we
find that it is more probable than not that a miscarriage of justice occurred.
In McDaniel, supra, this Court stated:
A witness’s credibility may be impeached with prior convictions, MCL 600.2159,
but only if the convictions satisfy the criteria set forth in MRE 609, which require
a determination that “the evidence has significant probative value on the issue of
credibility and, if the witness is the defendant in a criminal trial, the court further
determines that the probative value of the evidence outweighs the prejudicial
effect.” MRE 609; People v Nelson, 234 Mich App 454, 460; appeal denied, 461
Mich 919, 605 NW2d 316 (1999).
Notwithstanding the lower court’s evident familiarity with the MRE 609 analysis,
the court committed error by failing to articulate its findings on the record.
However, this, without more, does not require reversal where it appears from the
record that the court was aware of its discretion and the factors relevant to the
exercise of that discretion. People v Bell,155 Mich App 408, 411; 399 NW2d 542
(1986); People v Eggleston, 148 Mich App 494, 502-503; 384 NW2d 811 (1986).
Moreover, even if the trial court committed error in failing to articulate its specific
MRE 609 analysis, or in admitting the prior convictions, the error was harmless
and does not require reversal because defendant has not demonstrated prejudice.
People v Mateo, 453 Mich 203, 210, 212; 551 NW2d 891 (1996); Allen, supra at
612. Whether a preserved nonconstitutional error is harmless depends on the
nature of the error and its effect on the reliability of the verdict in light of the
weight of the untainted evidence. People v Whittaker, 465 Mich. 422, 427; 635
N.W.2d 687 (2001). The error is presumed harmless, and the defendant bears the
burden of showing that the error resulted in a miscarriage of justice. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); People v Lukity, 460
Mich 484, 493-494; 596 NW2d 607 (1999). Id. at 165-167. (Footnotes omitted).
Unlike this Court’s holding in McDaniel, we cannot find that there was sufficient
evidence establishing defendant’s guilt independent of the error. Therefore, we hold that
the admission of defendant’s prior conviction was not harmless error and defendant’s
convictions are reversed.
Because we reverse on this issue, we do not need to address defendant’s
remaining issue.
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Reversed.
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
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