June 17 01:11 AM

Verdict: GUILTY

Jury convicts Capac man on three counts of attempted murder in April 16 shooting

October 22, 2008
PORT HURON — It took jurors close to two days to hand down a guilty verdict in the attempted murder trial of Capac resident Donald Burke.

The group of four men and eight women reviewed a great deal of the prosecution's evidence, including taped interviews of the 50 year-old defendant and a recorded phone conversation between Burke and his wife. Only hours before returning with the verdict on Monday afternoon, they requested the written transcript of that phone conversation.

Burke was accused of firing shots with the intent to kill at Chief Raymond Hawks, Deputy Tim O'Boyle and tow truck driver Mike Thorpe on April 16 outside of his William G. Drive home with a .22 caliber rifle, injuring Hawks and O'Boyle.

Despite his testimony and assertions of memory loss, a jury of four men and eight women on Monday found Donald Burke guilty on three counts of attempted murder. photo by Maria Brown.

Burke will be sentenced by Judge Daniel Kelly on Nov. 20. Conviction on attempted murder can carry up to life in prison.

"The jurors spent a lot of time making sure they were coming to the right decision," Prosecutor Mike Wendling said on Monday.

The jury began deliberations on Thursday afternoon. Earlier in the day, Burke had taken the witness stand to claim he had no memory of the shooting or many of the events that followed, including the Sept. 18 Walker hearing when Kelly ruled that his statements to police were admissable.

As for the events leading up to the shooting, Burke said the morning of April 16 was uneventful. Around noon he drove his Pontiac Firebird to a friend's house west of town and on his return home saw a Capac police cruiser stopped on Mill St. in front of the Mussey Twp. Fire Hall. Burke said at the time he was unemployed but previously worked as a machine builder and spent his free time working on cars.

He then got behind the wheel of his Chevrolet Malibu, saw the police car a second time in the neighborhood and thought "they're playing games with me," Burke said from the stand, referring to the police. He denied swerving at the police car as Hawks claimed in his testimony earlier that week.

Burke then returned home and went in search of a bumper jack since he wanted to change the muffler on his Firebird. Burke said he never heard a knock at the door and only realized the police car had pulled into his driveway when he walked into his living room and glanced out the front window.

The next thing he remembered was seeing someone standing outside the police car, running back into his house from the front porch, proceeding out his back door and heading toward the fire hall on Mill Street before finding a pickup truck at Pirrone's Produce where he laid down in and tried to fall asleep.

Following his arrest, Burke said he eventually underwent triple bypass surgery and a subsequent operation due to an infection. During his hospitalization, Burke says he doesn't recall speaking with police officers.The previous week, two taped interviews between Burke and Detective David Patterson were entered into evidence.

During cross examination by Wendling, Burke claimed he hadn't shot the rifle since he was a teenager. He characterized most of his interaction with Hawks as "pleasant."

The previous day, Hawks told a different story of the day's events. He said he'd received several calls from Burke's neighbor, Kathryn Dalessandro, about the noise and reckless driving Burke was exhibiting—a common complaint Hawks said he and other officers responded to.

Hawks said he saw Burke on two occasions that morning but Burke wasn't doing anything to deserve a ticket. Just as he was ready to clock out for the day at 2 p.m., Dalessandro called Hawks again saying Burke was driving recklessly. On his way back to Burke's home, Hawks said the defendant ran him off the road.

Burke sped back to his home and would not answer repeated knocks at his front door, Hawks said. He suspected Burke might be intoxicated and decided to tow Burke's car, Hawks testified.

Ten minutes passed before Thorpe arrived on scene. Hawks said he got out of his car to speak to Thorpe, heard a door open and turned to see Burke with a gun in his hands. The first bullet fired entered Hawks' right arm and passed through into his abdomen.

"It knocked me down," Hawks said. "I was praying for the shots to stop."

As for the police department's relationship with Burke, Hawks said "we went out of our way to be nice to Mr. Burke." Hawks said he believed Burke had violent tendencies, something he surmised from non-verbal cues like the look in his eyes and his intimidating handshake.

After Hawks, Mike Thorpe took the stand, recalling he was on scene only minutes before shots rang out. Out of his truck's mirrors, Thorpe said he could see Burke standing on the porch with a long rifle, with his eye to the gun's sight "aiming like he was out deer hunting."

Two of a total of nine bullets shot that day ended up in the body of the tow truck's cab, aimed at Thorpe's head, the prosecution contended.

When he and neighbors weren't able to get the wounded Hawks away from the scene in his patrol car, they managed to get him on the back of his tow truck.

"If I can't move it with my hands, I move it with my wrecker," Thorpe said.

Deputy O'Boyle also recounted his memory of the day. Like Thorpe, he was not on scene for long before two shots went through his cruiser windshield. In fact, he didn't even have a chance to put his patrol car in park, he said. After the first shot, he ducked and was hit in the head with the second. He was between 30-50 yards of Burke's driveway.

"I put (the car) in reverse, opened my door and was trying to get out of the car. My eyes and nose were watering and my legs wouldn't move so I rolled out onto the pavement," O'Boyle said.

From the corner of William G. and Charles St., O'Boyle managed to regain his strength and train his sights and gun on Burke's front door and radioed communications to Central Dispatch.

"I thought he was reloading...I thought we were going to have another shootout," O'Boyle said. He stayed in that position, gun aimed, until more backup arrived.

"I thought the back of my head was gone...I thought I was dying."

He discovered that he had a "hole on the top of my head," he said, which required a few staples.

In his closing statements, Burke's attorney, Frederick Lepley, asked jurors to keep an open mind and accused neighbors and Hawks of trying to catch Burke doing something wrong to incite violence from his client.

"He's not being charged with being a lousy neighbor," Lepley said.

If his client meant to kill his targets, wouldn't he have gone back into the house to reload his gun, Lepley offered.

"If you meant to kill, you'd take your time," he said.

Jurors were given the option of convicting Burke on lesser charges including assault with intent to do great bodily harm less than murder, but Wendling pushed for the original charges.

"The defendant does not get the benefit...for missing," Wendling said.

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