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April 3, 2013

Judge delays ruling on Facebook threat charges

Testimony concludes as defense attorneys, investigators debate evidence

By Brian Louwers
C & G Staff Writer

WARREN — Were “disgusting” statements directed at Warren police just the morbid wishes of disgruntled young men, or legitimate threats they had the guns to carry out?

District Court Judge Matthew Sabaugh was left to ponder that question and others after testimony ended April 2 in a preliminary examination for Richard William Walker, 18, of Warren, and Brandon Davis, 20, of Center Line.

The judge said he would rule April 11 on whether Walker and Davis will stand trial on a list of charges that includes a threat-of-terrorism allegation with a maximum sentence of 20 years in prison.

Both men were arrested in January after a tip led Warren police to investigate a series of comments allegedly posted to Facebook. They were also charged with using a computer to commit a crime, resisting arrest and possessing an illegal shortened rifle.

Warren police and Macomb prosecutors said Walker allegedly used Facebook to call for “tru soldiers” to “kill more cops,” and that Davis posted, “We really need more cop killers like for real,” sometime after Warren police towed Walker’s car following a traffic stop in mid-January.

Images allegedly captured from their Facebook pages showed Walker and Davis posing with weapons and masks, along with expletives aimed at the police and a photo of Davis with the words “cop killer” on his arm. The words were still written in ink on his bicep when the men were arrested Jan. 18.

Police raided Walker’s home on Ford Avenue that day and reportedly recovered a cache of six guns including semiautomatic rifles, a shotgun and a handgun, and about 200 rounds of ammunition.

Investigators also seized two cellphones and a computer, and later turned the devices over to forensic investigators with the Macomb County Sheriff’s Office.

Deputy Tom Geml testified that he used specialized software to extract data from a Samsung cellphone that police linked to Walker. Geml said eight photos of interest to police found on the phone were taken by a device of the same model, but that metadata — which he described as “data about data” — attached to the images could not tie them to a specific phone. He also said the data did not include information about where or when the photos were taken.

Warren Police Sgt. John Barnes later testified that he was the officer in charge of the case who interviewed Walker first and then Davis shortly after their arrest Jan. 18.

Barnes said both men admitted to posting the statements about the police on Facebook, but that both said they weren’t serious.

“I asked him (Walker) if he was a terrorist and he informed me that he wasn’t,” Barnes said. “I then referred to Facebook postings, threats that he had made. He said that he wasn’t posting those because he was a terrorist, that they were just screwing around.”

Barnes said he got a similar response from Davis when he interviewed him about the alleged postings.

“I asked him what terrorist cell he belonged to,” Barnes said. “He seemed to be a little surprised by that. He said, ‘I’m no terrorist.’ I asked him why he posted those threats to kill police officers on Facebook and he said that he was just screwing around also, that he wasn’t going to kill anybody, I believe those were his exact words.”

But Assistant Macomb County Prosecuting Attorney Derek Miller told the court the statements had to be taken seriously based on the totality of the evidence and that the “subjective intent doesn’t matter.”

“It’s inciting violence. It’s inciting disgusting, inhumane acts that cannot be tolerated,” Miller said. “We live in a world, in today’s day and age, we cannot sit idly by.

“There’s so much here, your honor, that ties all of this together,” Miller said.

Defense attorneys Brian Selburn, representing Walker, and Warren McAlpine, representing Davis, made repeated objections during testimony, questioning even the most basic elements of the charges including who made the statements and where the statements were made.

“We’ve been grappling with the where and when, as to the photos. There’s been no conclusive evidence or testimony from any of the witnesses that the prosecution has put before the court as to where or when the photos occurred,” McAlpine said. “There’s nothing to link my client to any threats. They cannot provide that evidence because they don’t have it, judge. To bind him over on what at best is shaky circumstantial evidence, I think would go below the probable cause standard.”

Selburn said, “There’s so many different issues here, I’m kind of at a loss to start.”

 He added, “There’s no threat saying I’m going to do this. The stuff that’s on there is disgusting. In America, people have a right to say disgusting things.

“There’s no call to arms here, ‘We’re calling people to move to Warren so we can declare war on the cops.’ It doesn’t say that.”

Sabaugh permitted the prosecutor and both attorneys to present lengthy closing arguments after testimony concluded. The judge also posed his own questions about the testimony and the charges.

One question focused on the weapons charge related to the illegal shortened rifle. Detective Cpl. Charles Rushton testified about the execution of a search warrant at Walker’s home on Ford south of Nine Mile and east of Van Dyke where the guns were found.

Rushton said the rifle measured 24 inches long when it was seized with its stock removed. That’s 2 inches shorter than what is legal in Michigan.

However, Selburn argued that the rifle’s stock was found nearby, and that it could have been removed for some useful purpose, such as cleaning the weapon.

Rushton disagreed.

It didn’t appear in several of those photos they were cleaning the weapon,” Rushton said.

The judge also questioned the origin of the photos.

“I don’t know when these were taken. I don’t know if this occurred in the city of Warren or in Alpena,” Sabaugh said.

The judge ordered a hearing scheduled for 10:30 a.m. April 11 to rule on whether Walker and Davis should stand trial on the charges in Macomb County Circuit Court. No further testimony was expected and lawyers were not asked to submit briefs ahead of the hearing, but Sabaugh said he would permit Selburn and McAlpine to make additional motions.

Walker and Davis remained held in the Macomb County Jail on bonds totaling $550,000 each.