PEOPLE OF MI V BRIAN JOSEPH BOURNE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 4, 2004
Plaintiff-Appellee,
v
No. 244724
Wayne Circuit Court
LC No. 02-003107-01
BRIAN JOSEPH BOURNE,
Defendant-Appellant.
Before: Borrello, P.J., and White and Smolenski, JJ.
PER CURIAM.
Defendant was charged with alternative counts of first-degree premeditated murder, MCL
750.316(1)(a), and the murder of a police officer lawfully performing his duties, MCL
750.316(1)(c), in connection with the death of Detroit Police Officer Michael Scanlon.
Following a jury trial, he was convicted of the first-degree murder of a police officer and
sentenced to a term of life imprisonment without parole.1 He appeals as of right, and we affirm.
Defendant first argues that the circuit court incorrectly admitted irrelevant and prejudicial
testimony of his friend, Tom Gostias. Most of Gostias’s testimony pertained to statements that
defendant made regarding defendant’s hatred of and intent to kill police officers. This Court
reviews a trial court’s decision whether to admit evidence for a clear abuse of discretion. People
v Coy (After Remand), 258 Mich App 1, 3, 12; 669 NW2d 831 (2003). “‘A decision on a close
evidentiary question ordinarily cannot be an abuse of discretion.’” Id. at 13, quoting People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001).
Because defendant was charged with first-degree premeditated murder, the prosecutor
was required to establish that defendant premeditated and deliberated killing the victim. People
v Coy, 243 Mich App 283, 315; 620 NW2d 888 (2000). The testimony at issue was relevant to
the issues of premeditation and deliberation. Gostias stated that he saw defendant three to four
times a week between November 2001 and mid-February 2002. According to Gostias, during
ninety percent of these encounters, defendant expressed his hatred for and intention to harm
1
Defendant was also convicted of second-degree murder, MCL 750.317, as a lesser offense of
the first-degree premeditated murder charge, but the trial court vacated that conviction at
sentencing.
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police officers, often in graphic terms. The testimony was relevant because it made it more
probable that defendant’s February 12, 2002, stabbing of the victim during a traffic stop was a
course of action defendant had planned or thought about before engaging in it. Although Gostias
failed to provide specific dates on cross-examination, this affected the weight rather than the
admissibility of the evidence. Thus, the trial court did not err by admitting defendant’s
statements. See MRE 401; Coy, supra at 315.
Unlike People v DeRushia, 109 Mich App 419; 311 NW2d 374 (1981), cited by
defendant, defendant’s previous statements here had strong probative value because they
involved defendant’s hatred of and desire to stab, shoot, or attack police officers who pulled him
over. Given that the victim was killed under very similar circumstances to those contemplated
within defendant’s statements — after the victim pulled over defendant’s car, defendant fought
with and repeatedly stabbed the victim – their probative value outweighed any prejudicial effect.
Furthermore, defendant’s previous statements were neither isolated nor uttered distant in time
from the victim’s death. In fact, Gostias testified that defendant continued to utter such threats
repeatedly during the months immediately preceding the offense. We therefore find that the high
probative value inherent in Gostias’s testimony outweighed any prejudicial effect. See MRE
403. Consequently, we cannot conclude that the circuit court abused its discretion in admitting
the testimony. Aldrich, supra at 113.
Defendant also raises the related arguments that the circuit court incorrectly denied his
motions for a directed verdict with respect to the charges of first-degree premeditated murder and
the murder of a police officer lawfully performing his duties and that insufficient evidence
supported his convictions of second-degree murder and the murder of a police officer lawfully
performing his duties. In reviewing a criminal defendant’s challenge to the sufficiency of the
evidence, or the trial court’s denial of a motion for a directed verdict of acquittal, this Court
considers all the evidence presented in the light most favorable to the prosecution to determine
whether a reasonable juror could find the defendant’s guilt proven beyond a reasonable doubt.
People v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003); People v Nowack, 462 Mich 392,
399-400; 614 NW2d 78 (2000). Even though our standard of review of these issues is the same,
we consider them individually for purposes of this appeal.
This Court must draw all reasonable inferences and make credibility choices in support of
the jury’s verdict, and this Court should not interfere with the fact finder’s role in determining
witness credibility or the weight of the evidence. Nowack, supra at 400; People v Elkhoja, 251
Mich App 417, 442; 651 NW2d 408 (2002), vacated in part on other grounds 467 Mich 916
(2003).
To convict a defendant of first-degree premeditated murder, MCL 750.316(1)(a), the
prosecutor must establish that the defendant intentionally killed the victim and that the defendant
premeditated and deliberated the act of murder. People v Kelly, 231 Mich App 627, 642; 588
NW2d 480 (1998). To convict on a charge of second-degree murder, the prosecutor must show
that the defendant caused a death with malice and without justification or excuse. Aldrich, supra
at 123. Conviction of the murder of a police officer requires proof that (1) “the defendant
committed a murder”; (2) “the victim was a ‘peace officer or corrections officer’”; (3) at the time
of the murder, the officer was “‘lawfully engaged in the performance of any of his or her duties
as a peace officer or corrections officer’”; and (4) the defendant knew at the time of the murder
that the officer was “‘a peace officer or corrections officer engaged in the performance of his or
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her duty as a peace officer or corrections officer.’” People v Herndon, 246 Mich App 371, 385
386; 633 NW2d 376 (2001), quoting MCL 750.316(1)(c).
With respect to the first-degree premeditated murder charge, defendant challenges the
sufficiency of the evidence establishing that he premeditated and deliberated the victim’s
murder. Premeditation and deliberation may be established by evidence of (1) the prior
relationship between the defendant and the victim; (2) the defendant’s actions before the murder;
(3) the circumstances of the killing itself, including the type of weapon used and the location of
the wounds inflicted; and (4) the defendant’s conduct after the murder. People v Abraham, 234
Mich App 640, 656; 599 NW2d 736 (1999); People v Berry (On Remand), 198 Mich App 123,
128; 497 NW2d 202 (1993). Circumstantial evidence and the reasonable inferences arising
therefrom may suffice to prove the elements of a crime, and “[m]inimal circumstantial evidence
is sufficient to prove an actor’s state of mind.” People v Ortiz, 249 Mich App 297, 301; 642
NW2d 417 (2001); Abraham, supra at 656.
Defendant correctly notes that the number or location of a murder victim’s wounds taken
alone do not establish that a killing occurred in a premeditated and deliberated manner. Had this
been the only evidence introduced against the defendant, his argument may be more convincing.
However, there were a number of other factors introduced into evidence on the issue of
premeditation. For example, during the months leading up to the killing, defendant made what
Gostias estimated to be hundreds of statements regarding his hatred of and deathwish for police
officers and his desire and plan to kill or harm the next officer who stopped him, and defendant
demonstrated how he would stab the officer. Immediately before the victim was killed, the
victim conducted what several witnesses described as a routine traffic stop of defendant, during
which defendant elbowed the victim in the chest and then fled toward a backyard. The victim
gave chase and tackled defendant once, and the victim and defendant scuffled before defendant
managed to break free and run away again. The victim tackled defendant a second time, and
after another scuffle defendant stabbed the victim’s neck eight times, cutting his jugular veins,
carotid artery, and trachea, and stabbed the victim’s head and back. Each time defendant stabbed
the victim he had an opportunity to think about his actions.
Viewed in the light most favorable to the prosecution, the evidence was sufficient to
enable a rational trier of fact to find that defendant planned in advance to stab to death the next
police officer that pulled him over. Further, the evidence was sufficient for a reasonable jury to
conclude that defendant had at least one moment during which he might have reconsidered his
plan to stab the victim while fleeing from the victim who had pulled him over, during the first
scuffle with the victim, and while running from the victim a second time. Instead, though,
defendant repeatedly and fatally stabbed the victim, fled the scene, and attempted to cover up his
commission of the crime. This evidence warranted the jury to conclude that defendant
premeditated and deliberated the victim’s murder beyond a reasonable doubt. The trial court
therefore did not err in denying defendant’s motion for a directed verdict with respect to the
charge of premeditated murder. Riley, supra at 139; Nowack¸ supra at 399-400. Moreover, we
note that defendant was convicted of second degree murder, not premeditated murder.
To the extent that defendant challenges the sufficiency of the evidence supporting his
conviction of second-degree murder, the facts set forth above, when viewed in the light most
favorable to the prosecution, permit a rational factfinder to conclude beyond a reasonable doubt
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that defendant caused the victim’s death with malice, without any excuse or justification. See
Aldrich, supra at 123.
Last, defendant asserts that with respect to his conviction under MCL 750.316(1)(c), the
evidence was insufficient to establish that the victim was lawfully performing his duties when he
was killed. The victim’s death occurred within the last hour of his February 12, 2002, shift in the
Detroit Police Department’s Eighth Precinct, during which the victim had traffic stop duty in an
area of west Detroit near Six Mile Road, directly adjacent to Redford Township. The victim’s
activity log for February 12, which was found on the seat of his police car, reflected that he had
performed various traffic stops within Detroit. The victim was killed within one mile of the
Redford Township border with Detroit, and a Redford Township police officer testified that the
Detroit Police Department eventually assumed control of the investigation because the incident
began in the city of Detroit.
At the time the victim stopped defendant’s car, the sound of the muffler of defendant’s
car was, as described by many witnesses, extremely or very loud, and a police officer who
examined defendant’s car opined that the exhaust system qualified as illegally loud. Defendant
also had a half-full bottle of vodka inside his coat pocket at the time the victim stopped him.
All witnesses to the traffic stop, apart from defendant, recalled that the victim wore a
police uniform and that the police car that pulled into the driveway behind defendant either had
police markings on the outside or had turned on its flashing blue and red lights. The prosecutor
introduced testimony and photographs of the victim’s blood-soaked uniform into evidence and
presented testimony describing the traffic enforcement markings and blue and red flashing lights
on the victim’s patrol car at the time the victim was killed. Several witnesses testified that the
victim frisked or patted down defendant. Some witnesses specifically disavowed observing any
aggressive behavior by the victim aside from the victim pushing defendant’s head down onto his
car during the pat down. Geoffrey Leverenz, in whose driveway defendant’s car and the police
car parked, heard defendant refuse the victim’s request to place his hands on his car. Leverenz’s
girlfriend testified that defendant threw his elbow into the victim’s chest while the victim frisked
him. Leverenz testified that the victim had not drawn his gun when he began chasing defendant
into the yards behind Leverenz’s house and the house next door. The victim eventually tackled
and wrestled with defendant briefly before defendant again escaped and began running away. As
defendant again began to flee, the victim yelled at him to stop. The victim did not immediately
fire his weapon at defendant but tackled and wrestled with defendant a second time before
defendant repeatedly stabbed him. Defendant then drove away in the victim’s police car.
We initially observe that defendant does not contend that the victim’s traffic stop was
unlawful on the basis that the victim lacked authority to conduct a traffic stop in Redford
Township. People v Van Tubbergen, 249 Mich App 354, 364-365; 642 NW2d 368 (2002)
(explaining that insufficiently briefed issues are deemed abandoned on appeal). In light of the
testimony indicating that defendant’s car had a very loud and illegal exhaust system, that on the
evening of February 12 the victim was patrolling a precinct bordering Redford, that the victim’s
activity log documented that the victim’s other traffic stops on February 12 had taken place in
Detroit, and that the victim pulled over defendant within a mile of the Detroit border with
Redford, it is reasonable to infer that the victim heard and observed defendant’s loud vehicle
near the Detroit-Redford border and followed him a short distance into Redford to perform a
traffic stop. When an officer within his own jurisdiction observes a traffic violation, he may
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pursue the violator into a different jurisdiction to issue a ticket. See MCL 117.34 and MCL
257.726a. Thus, the jury could reasonably conclude that at the time the victim was killed, he
was a police officer lawfully performing his duties.
Defendant testified that he had no knowledge of the victim’s identity as a true police
officer and averred that the officer repeatedly bounced his head off his car for no apparent
reason.2 To the extent that defendant’s testimony and two trial witnesses’ prior statements
suggested that the victim bashed defendant’s head against the top of his car, the jury apparently
rejected this evidence. This Court will not revisit the jury’s determination concerning the
credibility of the witnesses or the weight of the evidence. Nowack, supra at 400. For the same
reason, we reject defendant’s challenge of the testimony of Leverenz, Leverenz’s girlfriend, and
Donald Nelson on the basis that they left town after the crime because the court properly
instructed the jury in this regard. Elkhoja, supra at 442.3
Affirmed.
/s/ Stephen L. Borrello
/s/ Helene N. White
/s/ Michael R. Smolenski
2
Defendant acknowledged, however, that a photograph of his face taken at the hospital showed
no bruises or marks.
3
In light of our conclusion that sufficient evidence was presented during defendant’s trial to
support the charge of first-degree premeditated murder and defendant’s conviction of the murder
of a police officer, we need not consider the merits of defendant’s argument that the evidence
introduced during his preliminary examination did not support his bindover on the first-degree
murder charges. People v Libbett, 251 Mich App 353, 357; 650 NW2d 407 (2002) (explaining
that a magistrate’s erroneous conclusion that sufficient evidence was presented at the preliminary
examination becomes harmless after the presentation at trial of sufficient evidence to convict).
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