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UNPUBLISHED
October 15, 2009
Plaintiff-Appellee,
v
No. 272369
Wayne Circuit Court
LC No. 06-004272-01
ROOSEVELT THEODORE WATTS, JR.,
Defendant-Appellant.
AFTER REMAND
Before: Borrello, P.J., and Gleicher and Shapiro, JJ.
PER CURIAM.
Defendant appealed 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. We previously
ruled that the trial court failed to make a determination on the record regarding the probative
value of evidence of defendant’s prior armed robbery conviction and whether the probative value
of the evidence outweighed the prejudicial effect, concluded that this error was not harmless, and
reversed defendant’s conviction.1
Thereafter, we denied the prosecutor’s motion for
reconsideration.2 The prosecutor then sought leave to appeal in our Supreme Court; in lieu of
granting leave, our Supreme Court vacated our judgment and remanded the matter to this Court,
concluding that “[r]eversal of the defendant’s convictions is not the proper remedy for the trial
court’s failure to articulate its reasons for admitting a prior conviction for impeachment on the
record . . . .”3 In addition, our Supreme Court ordered this Court to “remand this case to the
Wayne Circuit Court with directions to make a record of its decision to permit impeachment of
the defendant with an armed robbery conviction.” In compliance with our Supreme Court’s
order, we issued an order remanding the matter to the trial court and retaining jurisdiction over
1
People v Watts, unpublished opinion per curiam of the Court of Appeals, issued March 25,
2008 (Docket No. 272369) (Schuette, J., dissenting).
2
People v Watts, unpublished order of the Court of Appeals, entered May 2, 2008 (Docket No.
272369).
3
People v Watts, 482 Mich 980; 755 NW2d 188 (2008).
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the matter.4 The trial court issued a written opinion regarding its findings and ruled that
evidence of defendant’s prior armed robbery conviction was properly admitted as impeachment
evidence under MRE 609. For the reasons set forth in this opinion, we affirm.
We outlined the facts of this case in our previous opinion:
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 [sic] 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 crossexamination, 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. [People v Watts,
unpublished opinion per curiam of the Court of Appeals, issued March 25, 2008
(Docket No. 272369) (Schuette, J., dissenting), slip op at 1.]
I. Trial Court’s Opinion On Remand
In concluding on remand that evidence of defendant’s prior armed robbery conviction
was properly admitted, the trial court first considered whether the age of defendant’s armed
robbery conviction precluded its admission under MRE 609(c). Although defendant was
convicted in 1992, the trial court concluded that the evidence was not inadmissible on this basis
because defendant did not establish that more than ten years had passed since he was released
from the confinement imposed for the conviction, and because the conviction was not devoid of
probative value:
As to the age of the armed robbery conviction, the conviction took place in
1992 and the alleged offense in the instant case took place in 2006. Although
almost 14 years had passed since defendant’s conviction for armed robbery, MRE
609(c) prohibits a witness from being impeached with a conviction if more than
10 years have passed from the date of the conviction or from the date the witness
was released from the confinement imposed for the conviction. Defendant did not
4
People v Watts, unpublished order of the Court of Appeals, entered October 29, 2008 (Docket
No. 272369).
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establish that more than 10 years had passed since he was released from
confinement for the armed robbery conviction. Thus, the prosecution was not
prohibited on that basis from impeaching defendant with the armed robbery
conviction. Further, although a significant amount of time had passed since the
conviction itself, it was not so remote as to have no probative value.
The trial court next weighed the probative value of the evidence against its prejudicial
effect and concluded that the armed robbery conviction was relevant to the question of
defendant’s credibility and not unfairly prejudicial:
The Court also finds that the armed robbery conviction was probative of
defendant’s veracity. With regard to armed robbery, the Court of Appeals has
stated that it “contains an element of theft and it is our view that a person who is
willing to deprive others of their property is likely to be a person who does not tell
the truth.” [People v] Minor, [170 Mich App 731, 736; 429 NW2d 229 (1988)].
Credibility was an important issue in this case, where there were no eyewitnesses
to the shooting, witnesses testified that defendant was the only other person in the
home when the shooting occurred, and defendant claimed that an unknown,
masked gunman was the shooter. The armed robbery conviction went to
defendant’s ability to testify truthfully about his role in the shooting.
On the issue of prejudice, the Court finds that the armed robbery
conviction was not so similar to the charged offense of first-degree premeditated
murder as to be unduly prejudicial. The Court notes that admission of the
conviction was somewhat prejudicial to the defendant because the prosecution’s
underlying theory was that defendant’s ultimate goal in shooting the victim was to
obtain more drugs. However, in the instant case, defendant was not charged with
armed robbery, but first-degree premeditated murder. The dissimilarity between
armed robbery and first-degree premeditated murder reduces the prejudicial
effect. See People v Daniels, 192 Mich App 658, 671; 482 NW2d 176 (199[2])
(finding that the prejudice is minimal because there is no similarity between
murder and armed robbery). The Court finds that there was not a high risk that
the jury would convict defendant of murder because it knew he was convicted of
armed robbery 16 years earlier.
Lastly, the trial court determined that the importance of defendant’s testimony to the
decisional process did not militate for or against admission of the evidence:
Finally, this Court must determine the importance of defendant’s
testimony to the decisional process. The Court finds that this factor is evenly
balanced and does not lean one way or the other toward either exclusion or
admission of the evidence. As previously noted, there were no eyewitnesses to
the shooting, so no witness could testify definitively that defendant shot the
victim. Further, defendant’s testimony in this case was not crucial because
defense counsel was able to attack the credibility of and effectively impeach the
witnesses against defendant with their prior inconsistent statements regarding the
events leading up to and after the shooting.
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The trial court summarized its reasoning:
In conclusion, an analysis of the factors that this Court was required to
evaluate in determining whether to admit the impeachment evidence results in
three factors favoring admission and one factor being neutral. On this basis, the
Court concludes that the probative value of the armed robbery conviction
outweighed any resulting prejudice, and that evidence of defendant’s armed
robbery conviction was properly admitted as impeachment evidence under MRE
609.
II. Analysis
A. Admissibility of Defendant’s Prior Conviction under MRE 609
Defendant argues that the trial court abused its discretion in allowing the prosecutor to
impeach him with evidence of his prior armed robbery conviction. “This Court reviews for an
abuse of discretion a trial court’s determination whether a prior conviction involving a theft
component may be used to impeach a defendant.” People v Meshell, 265 Mich App 616, 634;
696 NW2d 754 (2005). An abuse of discretion occurs only when the trial court’s decision falls
outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476
Mich 372, 388; 719 NW2d 809 (2006). A trial court abuses its discretion when it admits
evidence that is inadmissible as matter of law. People v Katt, 468 Mich 272, 278; 662 NW2d 12
(2003). “[A] trial court’s decision on a close evidentiary question ordinarily cannot be an abuse
of discretion.” People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002).
MRE 609 permits the impeachment of a witness’s credibility with evidence of a prior
conviction if certain criteria are satisfied. The court rule provides in pertinent part:
(a) General Rule. For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall not be admitted
unless the evidence has been elicited from the witness or established by public
record during cross examination, and
***
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or
death under the law under which the witness was convicted, and
(B) the court determines 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 its prejudicial effect.
(b) Determining Probative Value and Prejudicial Effect. For purposes of the
probative value determination required by subrule (a)(2)(B), the court shall
consider only the age of the conviction and the degree to which a conviction of
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the crime is indicative of veracity. If a determination of prejudicial effect is
required, the court shall consider only the conviction’s similarity to the charged
offense and the possible effects on the decisional process if admitting the
evidence causes the defendant to elect not to testify. The court must articulate, on
the record, the analysis of each factor.
“In determining whether evidence is probative, the questions to be asked relate to the
degree to which the crime in question is indicative of veracity and the vintage of the prior
conviction.” People v Minor, 170 Mich App 731, 735; 429 NW2d 229 (1988). The armed
robbery conviction was probative of defendant’s veracity. Although armed robbery contains an
element of theft, it is primarily an assaultive crime; therefore, it has less probative value on the
issue of credibility than other theft crimes. People v Daniels, 192 Mich App 658, 671; 482
NW2d 176 (1992). However, armed robbery is “minimally probative of defendant’s
credibility[,]” and evidence of a prior armed robbery conviction is “properly admissible if the
probative value outweighs the prejudicial effect.” Meshell, supra at 636. Although defendant’s
prior armed robbery conviction satisfies the time limit in MRE 609(c), the age or vintage of the
prior conviction reduced its probative value. However, we agree with the trial court that “it was
not so remote as to have no probative value.”
In sum, we conclude that both elements in the “probative” analysis favor admissibility of
defendant’s prior armed robbery conviction. Although the age of the prior conviction reduced its
probative value, it retained some probative value. Furthermore, armed robbery, albeit primarily
an assaultive crime, contains an element of theft. Thus, we conclude that defendant’s armed
robbery conviction is at least somewhat probative of his credibility.
“On the issue of prejudice we are required to review the issues of whether the proposed
conviction sought to be admitted in evidence is similar to the charged offense and the importance
of the defendant’s testimony to the decisional process.” Minor, supra at 736. In this case,
defendant was not charged with armed robbery, so the similarity of the armed robbery conviction
to the charged offense does not favor admissibility. See Daniels, supra at 671 (“there is no
similarity between murder and armed robbery”). However, as defendant argues, the prosecutor
theorized that defendant killed the victim in order to rob him of his money and drugs. In this
sense, then, defendant’s prior armed robbery conviction was similar not to the charged offense,
but to the prosecutor’s theory at trial of the offenses committed by defendant. Arguably, then,
this element of the “prejudice” analysis favors admissibility. On the other hand, the concern
with prior conviction evidence, that a defendant will be convicted simply because of his bad
character, is arguably lessened in this case because the trial court instructed the jury that
defendant’s prior “conviction is not evidence that the defendant committed the alleged crime in
this case” and that it could consider the evidence of defendant’s prior conviction only with
respect to defendant’s truthfulness. Although the effectiveness of limiting instructions regarding
prior convictions is questionable, People v Allen, 429 Mich 558, 571-581; 420 NW2d 499
(1988), we note that “jurors are presumed to follow their instructions.” People v Graves, 458
Mich 476, 486; 581 NW2d 229 (1998).
While the first element of the “prejudice” analysis arguably favors inadmissibility, the
second element of the “prejudice” analysis, the effect of admitting such evidence on the
defendant’s decision to testify, favors admission of the evidence. Admission of the evidence had
no bearing on defendant’s decision to testify and did not cause defendant not to testify. Daniels,
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supra at 671. Because defendant testified at trial, this case does not implicate concerns regarding
the effect on the decisional process if defendant decides not to testify because of fear of
impeachment by prior convictions.
Because of the age of defendant’s prior conviction, and the similarity of the prior
conviction, not to any charged offense, but to the prosecutor’s theory at trial, this case presents a
close question regarding the admissibility of defendant’s prior armed robbery conviction.
Ultimately, however, we conclude that both elements of the “probative” analysis favor admitting
the evidence, albeit only minimally. We further conclude that the element of the “prejudice”
analysis regarding defendant’s decision to testify also favors admissibility. Only the similarity
element of the “prejudice” analysis arguably favors inadmissibility. As stated previously, a trial
court’s decision on a close evidentiary question generally cannot be an abuse of discretion.
Hine, supra at 250. After carefully reviewing the trial court’s decision, made on remand,
regarding the admissibility of defendant’s prior armed robbery conviction for impeachment
purposes, we cannot conclude that the trial court’s decision is outside the range of reasonable and
principled outcomes. Maldonado, supra at 388.
B. Sufficiency of the Evidence
Defendant claims there was insufficient evidence to support his conviction. This Court
reviews claims of insufficient evidence de novo. People v Cline, 276 Mich App 634, 642; 741
NW2d 563 (2007). This Court reviews a challenge to the sufficiency of the evidence by viewing
the evidence in a light most favorable to the prosecution, and determining whether a rational trier
of fact could find that the essential elements of the crime were proven beyond a reasonable
doubt. Id.
The only element of the crimes that defendant challenges is his identity as the shooter.
Identity is always an essential element of any crime. People v Oliphant, 399 Mich 472, 489; 250
NW2d 443 (1976). Viewing the evidence in a light most favorable to the prosecution, there was
sufficient evidence that defendant shot the victim. Witness testimony can provide sufficient
evidence to justify a conviction. See People v Malone, 193 Mich App 366, 372; 483 NW2d 470
(1992), aff’d 445 Mich 369 (1994). In this case, defendant admitted he was present at the time
of the shooting. Tracy Turner, who was present in the home when the victim was shot, testified
that after she heard the gunshot, a man wearing a blue coat like defendant’s coat lifted the victim
from the doorway of her bedroom. Turner recognized defendant’s voice telling her to keep her
head down. Defendant had gunshot residue on his face and hands. Therefore, physical evidence
also permits the inference that defendant was the shooter. Furthermore, the police found
defendant near crack cocaine and with money in his pocket; the victim was found without crack
cocaine or money. Viewing all permissible inferences from the evidence in the light most
favorable to the prosecution, the evidence was sufficient to establish beyond a reasonable doubt
defendant’s identity as the shooter.
Defendant argues that the testimony of the prosecution witnesses who identified
defendant as the shooter was incredible. “Questions of credibility are left to the trier of fact and
will not be resolved anew by this Court.” People v Avant, 235 Mich App 499, 506; 597 NW2d
864 (1999). Defendant’s argument in this regard is without merit.
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Affirmed.
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
/s/ Douglas B. Shapiro
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