Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

April 3, 2009 

137609 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v SC: 137609 

 COA: 274003 

Ingham CC: 04-001541-FC 

PAUL DAVID GIBBS, 

Defendant-Appellant. 

_________________________________________/ 

 On order of the Court, the application for leave to appeal the September 9, 2008 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

 KELLY, C.J. (dissenting). 

 I would grant leave to appeal. This may be a case where the erroneous admission 

of evidence and the misuse of evidence were so offensive to sound judicial process that 

they cannot be regarded as harmless. 

 Admittedly, the appearance of defendant’s guilt was strong, and the jury found 

him guilty of first-degree premeditated murder.1

 However, in the course of the trial, the 

court improperly admitted at least five hearsay statements damaging to defendant. 

Included was the statement that, before her death, the victim believed that defendant had 

attempted to kill her.2

 

 The trial court also improperly allowed the prosecution to introduce, over 

defendant’s objection, a video recording in which a witness recounted that defendant had 

 

1

 MCL 750.316(1)(a). 

2 People v Gibbs, unpublished opinion per curiam of the Court of Appeals, issued 

September 9, 2008 (Docket No. 274003), at 2. 
2

told her that the victim was dead. The witness claimed that defendant had predicted that 

he would get “pinned” for her death.3

 The trial court then allowed the witness to testify 

directly about the conversation, erroneously ruling that the conversation constituted a 

prior inconsistent statement.4

 Not only did the judge allow this considerable, inadmissible evidence, the 

prosecutor intentionally used it extensively. The Court of Appeals concluded that there 

was prosecutorial misconduct. It stated: 

 [D]espite . . . clear evidence establishing that the prosecution knew 

of the limited use of [Louella] Bibbins’s prior inconsistent statements, the 

prosecution repeatedly argued the inconsistent statements as substantive 

evidence of defendant’s guilt. In its closing statement, the prosecution made 

the following comments: 

. . . And, Paul Gibbs told Louella Bibbins, Tammie is dead, 

and they’re going to pin it on me; six hours, five hours before 

her body was found. . . . 

* * * 

. . . No one else knew she was dead before her body was 

found. . . . 

* * * 

 At about 1:00 o’clock eastern time the cellphone he’s using hits a 

cell tower in South Bend, Indiana [with the call to Louella Bibbins]; 6:35, 

6:40 p.m. that same day, Mr. Moseng and Ms. Stornello call the police [to 

report finding a body]. He knew she was dead before she was found. It’s 

that important. It’s important enough that he calls Louella Bibbins to lie 

about it. That’s how important it is. 

* * * 

 Another quick example, the East Lansing interview with Louella and 

Donald Gibbs, when she was explaining the details of that call to Officer 

[Scott] Despins, he made a note it’s on the tape. This was just prior to 5:55 

p.m., a full 40 to 45 minutes before Mr. Moseng and Ms. Stornello had 

even called the police yet. So, at the time she was talking, she didn’t know 

how important it was, so she told the truth. 

 

3 Gibbs, supra at 3. 

4 Id. 
3

 In its rebuttal closing argument, the prosecution again stated that 

defendant “knew she was dead before she was found.”[5]

The prosecutor made these statements, knowing that the evidence had been improperly 

admitted.6

 The Court of Appeals determined the errors “extremely significant,” but 

affirmed the conviction because it concluded, more probably than not, that the errors 

were not outcome determinative.7

 When the error and misconduct are so many and great as here, it is difficult for an 

appellate court to presume what a jury would have done had the errors not occurred. It 

also raises serious questions about the point at which it can no longer be said that a 

defendant was afforded a fair trial. This presents problems for appellate courts that seek 

not to second-guess jury verdicts. The Court in People v Robinson attempted to provide 

guidance when it stated: “Where it is claimed that error is harmless, two inquires are 

pertinent. First, is the error so offensive to the maintenance of a sound judicial process 

that it never can be regarded as harmless? Second, if not so basic, can we declare a belief 

that the error was harmless beyond a reasonable doubt?”8

 The purpose of the first inquiry 

“is to deter prosecutorial misconduct and to safeguard those individual rights which are 

so fundamental that the impact of their violation cannot be fully assessed.”9

 

 In Robinson, this Court found that the prosecutor’s deliberate injection of 

“improper evidence and the trial court’s acquiescence in it are such affront to the

 

5 Id. at 4-5.

6

 After the court improperly overruled defendant’s objection to the telephone call, it 

stated the jury likely needed a cautionary instruction that a prior inconsistent statement is 

not substantive evidence. The prosecutor responded that the court was “‘absolutely 

correct.’” Id. at 4. Then, when the court made it clear that the videotape was for 

impeachment purposes only, the prosecutor replied, “‘That’s true your honor.’” Id. 

7 Id. at 7. Under the harmless error analysis, a trial court’s nonconstitutional error in 

admitting evidence is not grounds for reversal. An exception exists if, after an 

examination of the entire cause, it affirmatively appears more probable that not that the 

error was outcome determinative. People v Lukity, 460 Mich 484, 495-496 (1999). An 

error is outcome determinative if it undermines the reliability of the verdict. People v 

Whittaker, 465 Mich 422, 427 (2001). 

8 People v Robinson, 386 Mich 551, 563 (1972) (citations omitted). 

9 People v Christensen, 64 Mich App 23, 33 (1975). 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

April 3, 2009 

0331 

 

4

integrity of the trial process that we will not countenance it.”10 In so ruling, this Court 

quoted People v Bigge: 

 That statutory provision is not a cure-all for it must serve within 

constitutional limitations or else be declared void. Minor errors which 

clearly can be held not to have affected the result may be mollified by this 

statutory provision, but errors which deprive an accused of the right of due 

process of law cannot be composed thereby to the detriment of an accused. 

The responsibility of maintaining the right of fair trial and due process of 

law is placed with the judicial branch and cannot be otherwise by 

legislative permission. We are not concerned with the guilt or innocence of 

the accused, for we are not triers of the facts and must apply the law to the 

case as tried. The statement was inexcusable, wholly without warrant of 

law, planted irremovable impression and rendered defendant a victim of the 

error. The prosecutor, by such statement of intended proof of defendant's 

guilt, brought an effect so probable, so inadmissible, and so prejudicial as 

to constitute irreparable error.[11]

 The tainted evidence improperly admitted in this case was very powerful. 

Moreover, the use of nonsubstantive evidence as substantive evidence ensured 

defendant’s conviction. It appears that the prosecutor introduced the inadmissible 

hearsay to show that defendant was a brutish, controlling man who, by virtue of his bad 

character, was likely the murderer. There was no reason to introduce the prior statements 

about the telephone conversation except to use them substantively to show defendant’s 

guilt. The prosecutor repeatedly used these statements as substantive evidence knowing 

it was improper to do so. 

 Where the evidence of guilt is strong, this Court should not allow a prosecutor to 

succeed in abusing the justice system by hiding behind a shield emblazoned with the 

words “Harmless Error.” I would grant leave to consider whether, in this case, this 

Court, should condone as harmless error the prosecutor’s deliberate injection of 

inadmissible evidence and misuse of nonsubstantive prejudicial evidence. 

 

10 Robinson, 386 Mich at 563. 

11 Id., quoting People v Bigge, 288 Mich 417, 421 (1939) (emphasis added in Robinson).