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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 2, 2021
Plaintiff-Appellee,
v No. 352328
Oakland Circuit Court
CHRISTOPHER JOSEPH BERAK, LC No. 2018-266276-FC
Defendant-Appellant.
Before: LETICA, P.J., and SERVITTO and M. J. KELLY, JJ.
PER CURIAM.
Defendant, Christopher Berak, appeals as of right his jury trial convictions for first-degree
premeditated murder, MCL 750.316(1)(a), and first-degree murder of a peace officer, MCL
750.316(1)(c). The trial court sentenced Berak to life imprisonment without the possibility of
parole on both counts. We affirm, but remand for the trial court to correct the judgment of sentence
to indicate a single conviction and sentence for first-degree murder under alternate theories.
I. BASIC FACTS
This case arises from the death of Eric Overall, a deputy with the Oakland County Sheriff’s
Office, on the morning of November 23, 2017. At the time, Overall was assisting Lapeer County
sheriff’s deputies in their attempt to stop Berak, who was driving his vehicle. Overall’s death was
witnessed by numerous officers, captured on video by two dashcam surveillance systems, and
Berak was arrested immediately after he struck Overall with his vehicle. Thus, the primary issue
before the jury was whether Berak possessed the requisite intent, premeditation, and deliberation
to be found guilty of premeditated murder and murder of a peace officer.
II. DOUBLE JEOPARDY
A. STANDARD OF REVIEW
Berak argues that his convictions of first-degree premediated murder and murder of a peace
officer violate double jeopardy because only one person was killed. Although the issue was not
raised below, Berak and the prosecution both rely on People v Colon, 250 Mich App 59, 62; 644
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NW2d 790 (2002) for the proposition that because double-jeopardy claims involve a “significant
constitutional question,” there is no preservation requirement. However, as we explained in
People v Matuszak, 263 Mich App 42, 47 n 1; 687 NW2d 342 (2004), the Colon opinion did not
set forth “a complete statement of the more limited standard of review applicable to unpreserved
constitutional issues” that was set forth by our Supreme Court in People v Carines, 460 Mich 750;
597 NW2d 130 (1999). Thus, “[w]e review for plain error unpreserved claims that a defendant’s
double jeopardy rights have been violated.” Matuszak, 263 Mich App at 47; see also People v
Meshell, 265 Mich App 616, 628; 696 NW2d 754 (2005) (accord). Under plain-error review, the
defendant must show (1) an error occurred, (2) the error is clear or obvious, and (3) the plain error
affected the defendant’s substantial rights, i.e., it affected the outcome of the lower court
proceedings. Id. “Reversal is appropriate only if the plain error resulted in the conviction of an
innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.” Id.
B. ANALYSIS
Berak was charged with and convicted of premediated murder and murder of a peace
officer. Both charges and convictions arose from the death of a single victim. As a result, Berak’s
multiple convictions violate double jeopardy. See People v Clark, 243 Mich App 424, 429; 622
NW2d 344 (2000) (“Multiple murder convictions arising from the death of a single victim violate
double jeopardy.”) and People v Williams, 265 Mich App 68, 72; 692 NW2d 722 (2005) (accord).
When a defendant is convicted of and sentenced for multiple counts of murder under different
theories, “the appropriate remedy to protect defendant’s rights against double jeopardy is to modify
defendant’s judgment of conviction and sentence to specify that defendant’s conviction is for one
count and one sentence of first-degree murder supported by two theories . . . .” People v Bigelow,
229 Mich App 218, 220; 581 NW2d 744 (1998). Therefore, we remand for the trial court to correct
Berak’s judgment of sentence to reflect a single conviction and sentence for first-degree murder
under the alternative theories: premeditated murder and murder of a peace officer.
III. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Berak argues that there was insufficient evidence to support his conviction of first-degree
murder. Because, as explained above, Berak’s judgment of sentence must be corrected to reflect
that he was convicted of a single count of first-degree murder supported by two theories, we will
consider whether there was sufficient evidence to sustain his conviction under both theories. We
review de novo a defendant’s argument that insufficient evidence was presented to sustain his or
her conviction. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). We review
the evidence in the light most favorable to the prosecution to determine whether a rational trier of
fact could find the defendant guilty beyond a reasonable doubt. People v Tennyson, 487 Mich 730,
735; 790 NW2d 354 (2010). “Questions regarding the weight of the evidence and credibility of
witnesses are for the jury, and this Court must not interfere with that role even when reviewing the
sufficiency of the evidence.” People v Carll, 322 Mich App 690, 696; 915 NW2d 387 (2018).
“[C]onflicts in the evidence are resolved in favor of the prosecution.” Id. Circumstantial evidence
and any reasonable inferences that can be drawn from the evidence may be sufficient to prove the
elements of a crime. People v Abraham, 234 Mich App 640, 656–657; 599 NW2d 736 (1999).
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B. ANALYSIS
The elements of murder of a peace officer are: (1) the defendant committed a murder, (2)
the victim was a peace officer, (3) the victim was lawfully engaged in the performance of his or
her duties as a peace officer, and (4) that the defendant knew the victim was a peace officer
performing lawful duties at the time of the murder. People v Herndon, 246 Mich App 371, 385-
387; 633 NW2d 376 (2001); MCL 750.316(c). In Michigan, murder “may be first-degree
deliberate and premediated murder, second-degree murder, or felony-murder.” Herndon, 246
Mich App at 386. Thus, relevant to this case, the first element may be proved by evidence that the
defendant committed either premediated murder or second-degree murder.
Because premeditated murder is one of the theories of liability that Berak was convicted
under, we first consider whether there was sufficient evidence to show that he had the requisite
intent for premediated murder. The elements of first-degree premediated murder are “(1) the
intentional killing of a human (2) with premeditation and deliberation.” People v Bennett, 290
Mich App 465, 472; 802 NW2d 627 (2010); MCL 750.316(a). “[T]o premediate is to think about
beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem.”
People v Oros, 502 Mich 229, 240; 917 NW2d 559 (2018) (quotation marks and citation omitted).
“Premeditation and deliberation may be established by an interval of time between the initial
homicidal thought and the ultimate action, which would allow a reasonable person time to subject
the nature of his or her action to a ‘second look.” Id. at 242. Further, “[p]remeditation may be
established through evidence of (1) the prior relationship of the parties, (2) the defendant’s actions
before the killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after
the homicide.” People v Walker, 330 Mich App 378, 384; 948 NW2d 122 (2019) (quotation marks
and citation omitted). “Premeditation cannot be found where a defendant acts on a sudden
impulse[,]” but “may be established by circumstantial evidence tending to show that a defendant
had an opportunity to think about, evaluate, or take a second look at their actions.” Id. at 383
(quotation marks and citations omitted). “That is, some time span between the initial homicidal
intent and ultimate action is necessary to establish premeditation and deliberation, but it is within
the province of the fact-finder to determine whether there was sufficient time for a reasonable
person to subject his or her action to a second look.” Oros, 502 Mich at 242. Likewise, “the
deliberation essential to establish murder in the first degree need not have existed for any particular
length of time before the killing.” Id. at 243 (quotation marks and citation omitted). “The requisite
state of mind may be inferred from defendant’s conduct judged in light of the circumstances.” Id.
Viewing the evidence in the light most favorable to the prosecution, there was sufficient
evidence for the jury to find Berak intentionally killed Overall with deliberation and premeditation,
and with the knowledge that Overall was a peace officer performing his lawful duties. Although
there is nothing to suggest that Berak had a prior relationship with Overall, there is substantial
evidence that he had a prior bad relationship with law enforcement. Other-acts evidence was
admitted showing that on two occasions in 2016, he refused to comply with police commands. On
the first occasion, he drove approximately one mile before stopping and he spit at the law
enforcement officers. On the second occasion, he refused to pull over when signaled and then
resisted when the officers attempted to arrest him. Additionally, hours before Overall was killed,
a police officer pulled Berak over and ticketed him for speeding. Forty minutes later, Berak made
a recording on his phone, proclaiming:
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I am Satan, but I am also God. I am the creator. I am the voice of the
creator. I am the voice you hear. The voice you hear is the Creator who created
you. And I am here to take back what is mine, so in my laws I state that there will
be no more court systems, there will be no more anything. And yes, I can have my
phone out if I want in court. If you touch me, I will kill you. This is a message for
the court: I will kill anybody in the courtroom who touches me or approaches me
in any manner that is aggressive, or if anyone puts their hands on me, I will kill
them. I will sen—I will sentence a fireball into their—into their crown and destroy
them in front of your face. This was written by Messiah 1-1-2. I will destroy and
sentence a fireball into their crown and destroy them. Anyone who steps to me, my
son, Christopher Berak, yes, my son’s name is Christopher Berak, and yes, I am
God, just so you know. I am the voice of God. For I am Christopher Berak, I am
the voice of God. Do you understand? Or do you overstand? Because I sentence
you into Hell if you take any of these fucking charges that are charged on me for a
ticket. If you charge me for a ticket for driving on a street that you paved on my
planet, I will fucking kill you. Do you understand? I will fucking kill you if you
try to charge me for fucking driving too fast on your fucking road. First of all, I
can do whatever the fuck I want. Now, and if—if you try to approach me because
I take out my phone, I will kill you, do you understand?
Approximately four minutes later, he made a second recording:
Thirteen, thirteen, this is the thirteenth son. I have a message for
Christopher. I will destroy anyone who comes near you. I will destroy anyone in
the court who comes near you. If they approach you in an aggressive way, if they
do anything to frighten you, if they even come near you, if they touch you, I will
kill them with your hands. Do you understand? And I don’t care that you see, I’m
sick and tired of this shit. Do you understand? Fuck Satan. Okay, Satan works for
me. Thirteen love to Satan. Because Satan works for me, I will thirteen love Satan.
Do you understand? I will thirteen pain Satan, because Satan is evil. Do you
understand? I will thirteen pain Satan. And I will rise up to the thirteenth chakra
in this lifetime, because I will, and I guide Chris to nature every day. And he will
listen and go to nature because that is what he is destined to do. He is destined to
be in nature. And destined means that’s where you’re supposed to be, that’s what
was written to be. Destined. It’s—it’s—it’s what was written to happen. It was
destined for you to go to nature. It was written for you to go to nature. And you
will go to nature, Chris, tonight you will. And we’re gonna go to the court and
we’re gonna destroy them. Do you understand? I—I—I don’t—I don’t—I don’t
care that Chris sees us destroying evil, okay? I will destroy them. This is the last
straw. This is—this is it. This is it right here. I will destroy them. This is it.
He also sent a text message to a contact saved as “Brett,” saying “Don’t forget about me bro.”
Berak’s voice recordings suggest the speeding ticket was “the last straw,” and that, going forward,
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if anyone tried to touch him, ticket him, or approach him in an aggressive manner, he was going
to kill and destroy them.1
A little over an hour later, Berak appeared outside a correctional facility and indicated he
wanted to go inside. While corrections officers were attempting to discuss the matter with him,
Berak drove away and went to the adjacent parking lot for Lapeer County Sherriff’s Office. When
deputies attempted to determine why he was there, he drove away despite commands to stop.
Berak lodged expletives at officers multiple times, including yelling that “he was going to light
shit up or fire shit up.” During the 24-mile pursuit that followed, Berak drove close to the posted
speed limit and used his turn signal before changing lanes.
At the intersection of M-15 and Seymour Lake Road, however, Overall was deploying stop
sticks. When Berak approached the intersection, Overall was standing directly across the street
from his patrol vehicle, in the light from his headlights. There were two vehicles on the south side
of the intersection facing Overall with their headlights on. And Berak had his headlights on as
well. Although there was sufficient space to both stay in his lane and drive around the stop sticks,
Berak suddenly crossed the right fog line, went off the road, and hit Overall while travelling
approximately 43 miles per hour. He only braked minimally before steering his vehicle directly
toward Overall. Although the defense’s expert crash reconstructionist opined that the crash was a
reflex action, the prosecution’s expert testified that the facts of the case were not consistent with a
reflex reaction. Further, although the defense suggested that various light sources, including the
emergency lights of the vehicles pursuing Berak may have been blinding him so that he did not
see Overall, there is testimony that at least one of the officer’s following Berak could clearly see
Overall on the side of the road. Yet, conflicts in the evidence are resolved in favor of the
prosecution. Carll, 322 Mich App at 696. Thus, viewed in the proper light, Berak’s actions were
not consistent with a reflex, and Overall was visible where he was standing. There was also
evidence that after hitting Overall with his vehicle, Berak winked at a police officer. The jury
could infer that such an action was meant to taunt the officers.
In sum, taking into account all the circumstances of the killing and viewing them in the
light most favorable to the prosecutor, the jury could reasonably infer that hours before
encountering Overall on the side of the road, Berak made the decision that he was going to kill any
police officer who attempted to interfere with him. That decision was made with both
premeditation and deliberation. His appearance at the correctional facility and county sheriff’s
office allow for an inference that he instigated his interactions with law enforcement to bring about
an opportunity to kill. He then led the police on a 24-mile pursuit while maintaining complete
control of his vehicle. When he saw Overall, a police deputy, on the side of the road, he made the
decision to brake minimally, steer directly toward Overall, and strike him while traveling over 40
miles per hour. At the time, Overall was attempting to stop Berak’s vehicle by deploying stop
sticks. As Berak stated repeatedly in his voice recordings, he planned on killing anyone who tried
1
In his brief on appeal, Berak suggests that “he was not in his right state of mind” when he hit
Overall with his vehicle. However, diminished capacity is not a valid defense to murder. See
People v Carpenter, 464 Mich 223, 232-241; 627 NW2d 276 (2001).
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to approach him in an aggressive manner or who tried to touch him. On this record, there is
sufficient evidence to sustain Berak’s first-degree murder conviction under both a premediated
murder theory and a murder-of-a-peace officer theory.2
IV. OTHER-ACTS EVIDENCE
A. STANDARD OF REVIEW
Berak argues that the trial court abused its discretion by admitting evidence of two prior
interactions he had with law enforcement. A trial court’s decision to admit evidence is reviewed
for an abuse of discretion and, as such, “will not be disturbed unless that decision falls outside the
range of principled outcomes.” People v Thorpe, 504 Mich 230, 251-252; 934 NW2d 693 (2019)
(quotation marks and citation omitted). “A decision on a close evidentiary question ordinarily
cannot be an abuse of discretion.” Id. at 252 (quotation marks and citation omitted).
B. ANALYSIS
The admission of “other acts” evidence is governed by MRE 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Thus, “evidence of other crimes, wrongs, or acts is inadmissible to prove a propensity to commit
such acts.” People v Denson, 500 Mich 385, 397; 902 NW2d 306 (2017). In order for other acts
to be admissible under MRE 404(b), the proponent of the evidence must show that the other-acts
evidence has a proper purpose other than to show character, the evidence is relevant to an issue of
consequence, and the danger of unfair prejudice does not substantially outweigh the probative
2
Even if there were insufficient evidence to support the jury’s finding of premeditation and
deliberation, there was sufficient evidence to support a finding that when he killed Overall, Berak
had the intent necessary to sustain a conviction for second-degree murder. “Second-degree murder
is a general intent crime, which mandates proof that the killing was done with an intent to kill, an
intent to inflict great bodily harm, or an intent to create a very high risk of death with the knowledge
that the act probably will cause death or great bodily harm.” Herndon, 246 Mich App at 386
(quotation marks and citation omitted). Here, viewing the evidence in the light most favorable to
the prosecution, the record reflects that Berak formed the intent to kill any law enforcement officer
that interfered with him hours before he saw Overall on the side of the road. When he saw Overall,
he braked minimally, steered his vehicle directly toward him, and hit him while travelling over 40
miles per hour. The jury could infer that in doing so he intended to kill Overall.
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value. People v Steele, 283 Mich App 472, 479; 769 NW2d 256 (2009). Further, upon request,
the trial court must instruct the jury that the other-acts evidence is to be considered only for the
proper purpose for which it was admitted. People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114
(1993), amended 445 Mich 1205 (1994).
In this case, the prosecution filed a notice of intent to introduce three prior interactions that
Berak had with law enforcement. The defense opposed admission of the evidence, and, following
a hearing, the trial court determined that two of the three incidents was admissible.
The first incident occurred October 11, 2016. Two officers observed Berak fail to stop at
a red light by making a right-hand turn despite a no-turn-on-red sign. He also hit the curb with his
vehicle. The officers activated their emergency lights and siren to perform a traffic stop, but Berak
continued driving for over a mile before stopping. When an officer approached the window, Berak
initially refused a command to put his hands up. Subsequently, he resisted another officer’s effort
to remove him from his vehicle. When ordered to spit suspected marijuana out of his mouth, Berak
unsuccessfully attempted to spit the substance on one officer but successfully spit on the other.
The second incident admitted occurred on December 22, 2016. A police officer was
dispatched to a gas station due to a report of a vehicle sitting at a pump for an hour. When the
officer arrived, Berak was in his vehicle with the music playing loudly and initially refused to
respond to the officer’s efforts to speak to him. When instructed to turn down the music and turn
off his vehicle, Berak complied with the former instruction but not the latter. He also refused to
say why he was at the gas station and ultimately rolled up his window and drove away. The officer
followed Berak in his patrol vehicle and signaled him to pull over, but Berak continued until he
got to his house. At his house, Berak ran just inside of the front door but was stopped by law
enforcement officers. Although Berak resisted the officers’ attempts to arrest him by lying on his
hands, the officers ultimately succeeded in placing him in handcuffs. Although uncooperative,
Berak was not assaultive towards them.
Berak argues that the evidence of the two prior interactions was inadmissible because its
only purpose was to present him as a “bad man” who did not respect the police and who engaged
in unruly behavior when confronted by them. He contends that there was no proper purpose
because someone died in the present matter, but no one was even hurt during the prior incidents.
Instead, he argues that the only similarity between the other-acts evidence and the present matter
is that he repeatedly refused to comply with police commands. However, the prosecution argued
that the evidence was admissible to establish Berak’s motive, intent, premeditation, deliberation,
and the absence of mistake or accident. Because those are proper purposes under MRE 404(b),
we turn to the second prong of the inquiry.
Generally, all relevant evidence is admissible. MRE 402. Evidence is relevant if it “ha[s]
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.” MRE 401. As noted
above, premeditation and deliberation can be established by evidence of the prior relationship of
the parties. Walker, 330 Mich App at 384. Here, although the record does not show that Berak
and Overall had a prior relationship, Berak’s recording made clear that he was going to kill any
law enforcement officer who touched him, approached him aggressively, or tried to ticket him.
Thus, the correct prior relationship was Berak’s prior relationship with law enforcement. Thus,
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the 2016 incidents had probative value because it showed that there was a prior, hostile relationship
between Berak and law enforcement. During the 2016 incidents, he fled the police, refused
commands, and resisted arrest. Once, he spit at two law enforcement officers. Those facts have
probative force because they put Berak’s recording that the speeding ticket he received was the
“last straw,” and that, going forward, his response to law enforcement was going to be to kill or
destroy. Thus, the evidence was highly probative that when he hit Overall he intended to kill him,
had a motive to kill him, and that the killing was deliberate and premediated, rather than an
accident.
Finally, probative value of the evidence was not substantially outweighed by the danger of
unfair prejudice. See MRE 403. “Evidence is unfairly prejudicial when there exists a danger that
marginally probative evidence will be given undue or preemptive weight by the jury.” People v
Schaw, 288 Mich App 231, 237; 791 NW2d 743 (2010) (quotation marks and citation omitted;
alteration omitted). Unfair prejudice also “refers to the tendency of the proposed evidence to
adversely affect the objecting party’s position by injecting considerations extraneous to the merits
of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” People v Cameron, 291 Mich App
599, 611 ; 806 NW2d 371 (2011) (quotation marks and citation omitted). “The prosecution does
not have to use the least prejudicial evidence to make out its case.” Id. Here, the evidence was
highly probative of Berak’s motive and intent. Furthermore, Berak’s defense—that he struck
Overall by accident—enhanced the probative value of the evidence. Moreover, the trial court gave
a cautionary instruction to the jury both immediately after the testimony was given and during the
final instructions. In the instructions, the court explained the limited, permissible use of the
evidence, thereby limiting any potential for unfair prejudice. See People v Roscoe, 303 Mich App
633, 646; 846 NW2d 402 (2014) (noting that a limiting instruction “can help to alleviate any
danger of unfair prejudice, given that jurors are presumed to follow their instructions.”).
V. PROSECUTORIAL MISCONDUCT
A. STANDARD OF REVIEW
Berak next argues the prosecution improperly vouched for the credibility of a witness,
appealed to the sympathies of the jury, and referred to a fact not in evidence. “In order to preserve
an issue of prosecutorial misconduct, a defendant must contemporaneously object and request a
curative instruction.” Bennett, 290 Mich App at 475. Because Berak did not object to any of the
challenged prosecutorial conduct, these issues are unpreserved. “Unpreserved claims of
prosecutorial misconduct are reviewed for plain error affecting substantial rights.” People v
Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). We will not find error requiring reversal
due to unpreserved prosecutorial misconduct when a curative instruction could have alleviated any
prejudicial effect. People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).
B. ANALYSIS
A prosecutor’s responsibility is to not merely obtain convictions, but to seek justice.
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). As a result, “the test for
prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” Id.
Whether the prosecution committed misconduct is determined on a case-by-case basis after
examining the entire record and evaluating the prosecution’s conduct in context. Id. at 64. A
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prosecutor “is free to argue the evidence and all reasonable inferences arising from it as they relate
to his or her theory of the case.” Id. at 66. However, a “prosecutor may not vouch for the
credibility of his witnesses by suggesting that he has some special knowledge of the witnesses’
truthfulness.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). In addition, a
“prosecutor may not appeal to the jury to sympathize with the victim.” People v Unger, 278 Mich
App 210, 237; 749 NW2d 272 (2008).
During his rebuttal closing argument, the prosecutor reminded the jury that one of the
witnesses testified that he could see Overall and the object he was handling on the side of the road
despite being further away than Berak was as Berak approached Overall. The prosecutor went on:
[The witness] can still see that the object [Overall] has is hinged, and as you know
from Mr. [Roger W.] Barrette, the expert from Chicago, the professor at the
preeminent university for crash reconstruction, not only in the United States but
perhaps in the world, Mr. Barrette, who has more experience than any accident
reconstructionist or crash reconstruction [sic] I submit that you can probably find,
he tells you based upon his review and he didn’t just, like Mr. [David] Shepardson,
drive by the scene one night.
The prosecutor’s comments must be evaluated in light of the defense lawyer’s arguments. See
Seals, 285 Mich App at 22. During closing argument, the defense argued that one of the
prosecution’s experts only received accreditation through the Accreditation Commission on
Traffic Accident Reconstruction (ACTAR) after the accident whereas the defense expert had
received certification through ACTAR in 1990 and had been doing reconstruction work for “many,
many, many years.” In light of the defense arguments, the prosecutor’s decision, therefore, to
highlight the extensive expertise of its second expert witness was not improper vouching.
Berak next argues that the prosecutor improperly made repeated statements designed to
appeal to the jury’s sympathy for Overall to encourage the jury to decide the case on the basis of
emotion rather than facts. The first such statement was during the prosecutor’s opening statement,
when he noted that Overall was a peace officer and “liked his work. He was one of the—you
know, one of the good guys. You know, he was trying to help people and he was a very
experienced deputy. He had been on the job many years.” The prosecutor also noted that Overall
could not be saved after the crash despite “heroic efforts. People made great attempts because all
these deputies following behind were right there, and you’ll hear from some of the deputies how
they saw Deputy Overall on the side of the road. They saw him standing there and they saw the
Defendant strike him.” Then, while questioning Overall’s son, the prosecutor asked him to “briefly
describe your father to the ladies and gentlemen of the jury.” In response, Overall’s son testified:
Easily the best man I’ve ever met, and I know a lot of other people agree. Always
wanted to help people, wanted nothing but to make people happy and be there for
people in their time of need. He wanted to be a friend. He wanted to be just the
person people would go to whenever they had a problem and wanted to solve it, or
just needed someone to talk to, or just be a friend.
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Finally, during his closing argument, the prosecutor referred to various witnesses as “a very nice
officer,” “a nice gentleman, a hard[-]working man,” and “a very nice man” who just enlisted in the
Marines to serve our country.
The prosecutor’s references to Overall’s character in his opening statement and his open-
ended question to Overall’s son that was clearly intended to invoke character evidence were
improper. The prosecutor bore the burden of proving Overall was a peace officer, was deceased,
and that his death was the result of Berak’s actions. Thus, Overall’s character was irrelevant to
any issue before the jury, and the prosecutor’s injection of such served no purpose other than to
improperly invoke the sympathy of the jury for the victim. See Unger, 278 Mich App at 237.
Moreover, there was no compelling reason for the prosecutor to have called Overall’s son as a
witness. The son’s testimony, even without the references to his father’s character, was very
moving. He described hearing that an officer had been injured in the area where his father was
working, being unable to reach his father on the telephone, and ultimately seeing his body at the
hospital and knowing, based on the extent of the injuries, that he was dead. Testimony identifying
Overall as the peace officer who was killed could have been presented by any of the officers
present at the murder scene. That the prosecutor chose to call Overall’s son for this relatively
simple testimony and then elicited irrelevant character evidence strongly suggests the prosecutor
strategically and improperly sought to invoke the jury’s sympathy. In doing so, the prosecutor
engaged in prosecutorial misconduct.
Nevertheless, this testimony and the prosecutor’s scattered references to Overall’s
character were fairly brief. Berak’s trial was held over a 10-day period and involved 33 witnesses.
The evidence against Berak was compelling. As detailed more fully above, Berak considered a
speeding ticket to be the “last straw” and he repeatedly vocalized his intent to kill anyone who
tried to touch him, approach him in an aggressive manner, or ticket him. He then went in search
of law enforcement officers, stopping at a correctional facility and the parking lot of the local
sheriff’s office. Then after driving 24-miles while being pursued by law enforcement and while
maintaining control over his vehicle, he came to an intersection where stop sticks were being
deployed. Overall was standing on the side of the road in the light from the headlights of his own
vehicle. Berak braked minimally and then turned his vehicle to cross the fog line and strike Overall
with his vehicle while he was going over 40 miles per hour. Thus, in context, the prosecutor’s
relatively brief and improper references to Overall’s good character and to the good character of
other witnesses, did not affect the outcome of the proceedings. Moreover, a timely objection would
have not only allowed the trial court to give a contemporaneous curative instruction telling the jury
to disregard the improper comments, but it would have likely also prevented or limited additional
comments regarding the good character of Overall and of various witnesses for the prosecution.
Thus, although the prosecutor’s statements were improper, reversal is not warranted.
Finally, during his closing argument, the prosecutor reminded the jury that Berak stopped
on I-69 when a police deputy signaled him to do so, but then drove away before the stop was
completed. The prosecutor noted that as Berak began pulling away, the deputy hit his window
with his flashlight, but was unsuccessful in breaking the glass. The prosecutor then said, “Ladies
and gentlemen, that would further anger the Defendant in addition to his other building hostility
that you had heard from him earlier.” Berak argues there was no evidence in the record to support
the prosecutor’s assertion that hitting his window with a flashlight would anger him. However,
Berak’s voice recordings clearly express a deep-seated anger toward law enforcement interfering
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with him, including giving him tickets, touching him, and approaching him in a hostile manner.
Based on that, it was reasonable to infer that an officer striking the glass on his vehicle while
attempting to make him comply with a traffic stop would, in fact, anger Berak. Thus, the
prosecutor’s argument is supported by the record.
Berak lastly argues that, even if none of the above claimed errors individually deprived
him of a fair trial, the cumulative effect of such errors did. “The cumulative effect of several errors
can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would
not merit reversal, but the cumulative effect of the errors must undermine the confidence in the
reliability of the verdict before a new trial is granted.” Dobek, 274 Mich App at 106. Reversal
may be warranted where several minor errors occurred, even though none of them would be
sufficient standing alone, but those errors must nevertheless have had some prejudicial effect.
People v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001). Here, the only error was the
prosecutor’s references to Overall’s good character and to the good character of other witnesses.
Although there were repeated instances of this, all of them were fairly minor instances of
prosecutorial misconduct, and they did not deny Berak a fair trial.
Affirmed, but remanded for the trial court to correct the judgment of sentence to reflect a
single first-degree murder conviction supported by alternate theories of premediated murder and
murder of a peace officer. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Michael J. Kelly
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