People of Michigan v. Dawan Pierce Thurmond ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 19, 2019
Plaintiff-Appellee,
v No. 339324
Ingham Circuit Court
DAWAN PIERCE THURMOND, LC No. 16-000454-FH
Defendant-Appellant.
Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.
PER CURIAM.
Defendant, Dawan Thurmond, appeals as of right his jury trial conviction of carrying a
concealed weapon (CCW), MCL 750.227(2).1 Because there are no errors warranting reversal,
we affirm.
I. BASIC FACTS
During an investigation of a large fight that broke out in a parking lot outside a bar,
Thurmond was identified as having pointed a gun at one of the participants in the fight. Police
approached Thurmond, who was leaning into the passenger side of a vehicle. A gun registered to
Thurmond, and matching the description given by the victim, was found in the vehicle. A loaded
magazine for the gun was found in the glove compartment. Police subsequently determined that
Thurmond’s concealed pistol license had expired.
II. PROSECUTORIAL MISCONDUCT
A. STANDARD OF REVIEW
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The jury acquitted Thurmond of charges of assault with a dangerous weapon, MCL 750.82, and
possession of a firearm during the commission of a felony, MCL 750.227b.
Thurmond argues that the prosecutor mischaracterized the evidence, vouched for the
credibility of the prosecution witnesses, and presented irrelevant and misleading photographs of
Thurmond that were taken from his Facebook page. This Court “review[s] de novo claims of
prosecutorial misconduct to determine whether defendant was denied a fair and impartial trial.”
People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). However, Thurmond
failed to object to some of the alleged instances of prosecutorial misconduct. Unpreserved errors
are reviewed for plain error affecting substantial rights. Id. In such cases, “[r]eversal is
warranted only when plain error resulted in the conviction of an actually innocent defendant or
seriously affected the fairness, integrity, or public reputation of judicial proceedings, independent
of defendant’s innocence.” Id. at 448-449. This Court will not reverse “where a curative
instruction could have alleviated any prejudicial effect . . . .” Id. at 449.
B. ANALYSIS
“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “A defendant’s
opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than
the defendant’s guilt or innocence.” Id. at 63-64. “Issues of prosecutorial misconduct are
decided case by case, and this Court must examine the entire record and evaluate a prosecutor’s
remarks in context.” Id. at 64.
Thurmond’s first claim of prosecutorial misconduct relates to the prosecutor's decision to
present two photographs of him to the jury. The first photograph depicted Thurmond smoking.
The victim testified that the person who pointed a gun at him was wearing black, square-framed
glasses. Although Thurmond argues that the photograph was being used to attack his character
by suggesting to the jury that he smoked cannabis, viewed in context, the photograph was
relevant to show that Thurmond wore glasses similar to those described by the victim. Thus, it
was relevant to his identity. See MRE 401 (stating that evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence”). Accordingly, the
prosecutor did not commit misconduct by presenting this photograph to the jury.
Thurmond next contends that the prosecutor improperly sought admission of a
photograph that depicted him pointing a gun at a camera. At trial, Thurmond testified that he
never flaunted his gun or pointed it at anyone. The prosecutor presented the photograph of
Thurmond pointing the gun to refute that testimony. Therefore, in context, the photograph was
relevant to an issue at trial: Thurmond’s credibility, and the prosecutor did not commit
misconduct by presenting it as evidence. See Ackerman, 257 Mich App at 448 (stating that a
“prosecutor’s good-faith effort to admit evidence does not constitute misconduct”).
Next, Thurmond asserted that the prosecutor improperly vouched for the credibility of
her witnesses by arguing during rebuttal argument that Thurmond and his friend, Michael
Alexander, were the only individuals who lied to the jury during their testimony. It is improper
for a prosecutor to vouch for a witness’s credibility by implying that he or she “has some special
knowledge concerning a witness’ truthfulness.” People v Jackson (On Reconsideration), 313
Mich App 409, 426; 884 NW2d 297 (2015) (quotation marks and citation omitted). However, in
his closing argument Thurmond argued that the police witnesses were all lying. “A prosecutor
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may fairly respond to an issue raised by the defendant,” including issues of credibility argued in
closing remarks. People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). Moreover,
prosecutors are generally “accorded great latitude regarding their arguments and conduct.”
People v Cooper, 309 Mich App 74, 91; 867 NW2d 452 (2015) (quotation marks and citation
omitted). “[A] prosecutor may comment on his own witnesses’ credibility during closing
argument, especially when there is conflicting evidence and the question of the defendant’s guilt
depends on which witnesses the jury believes.” Jackson, 313 Mich App at 426 (quotation marks
and citation omitted). Consequently, in this case, the prosecutor did not commit misconduct by
commenting on the credibility of her witnesses after Thurmond argued that all of the
prosecutor’s witnesses were lying.
Finally, Thurmond argues that the prosecutor impermissibly argued facts not in evidence
during her closing remarks. It is impermissible for a prosecutor to make factual arguments to the
jury that are unsupported by the evidence admitted at trial. People v Unger, 278 Mich App 210,
241; 749 NW2d 272 (2008). However, prosecutors are typically “free to argue the evidence and
all reasonable inferences from the evidence as it relates to their theory of the case.” Id. at 236.
The prosecutor argued:
What you can use is the testimony and the evidence that you heard is to infer in
your mind what was happening on that night. And what you can believe or
attempt to wrap your mind around what was happening is Michael Alexander
came out of the [bar] that night. He and his friends, specifically one of the
Reynolds brothers, got into an altercation in the parking lot, and that altercation
would have occurred with the victim . . . . And as a response, Defendant, who is
sitting in the car at the time, saw that his friend . . . .
The prosecutor’s remarks were supported by the evidence. During her cross-examination of
Thurmond, the prosecutor asked about a legal document containing a description of the offense.
In that document, Thurmond stated that his friend “Jared Reynolds was returning back to the
parking lot and was attacked by a group.” Thurmond acknowledged that the legal document was
submitted on his behalf and contained an electronic signature, but he denied that it was his
“written” signature. Thurmond stated instead that his godmother, who did not have all the facts,
drafted the document, based on information gained from his friend Alexander. Despite
Thurmond’s denial of knowing the contents of the legal document bearing his electronic
signature, the prosecutor was free to argue that his statement in the document was, in fact, a true
statement of how the event unfolded, including that one of his friends got into a fight. Therefore,
the prosecutor’s remarks were supported by record evidence.
Moreover, even assuming arguendo that the remarks were not completely supported, this
portion of the prosecutor’s argument pertained to the charges of assault with a dangerous weapon
and possession of a firearm during the commission of a felony. Thurmond was acquitted of
those charges. Consequently, to the extent that the comments could have prejudiced his defense,
a curative instruction would have alleviated any prejudicial effect caused by the argument.
Ackerman, 257 Mich App at 449. Reversal is not required.
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Affirmed.
/s/ Michael J. Kelly
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra
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