Michigan Supreme Court Lansing, Michigan

Marilyn Kelly, Chief Justice

Michael F. Cavanag h
Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway, J ustices 

# 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 consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

K ELLY , 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 o ffensive to sound judicial process that they cannot be regard ed 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 admitte d at least five hearsay statem ents 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 allowe d the prosecution to introduce, over defendant’s objection, a video recording in wh ich 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2 People v Gibbs , unpublished opinion per curiam of the Court of Appeals, issued September 9, 2008 (Docket No. 274003), at 2.2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 allo wed the witness to testify directly about the conversation, erroneously ruling that the c onversation constituted a prior inconsistent statement. 4

Not only did the judge allow this c onsiderable, inadmissi ble evidence, the prosecutor intentionally used it extensively. The Court of Appeals concluded that there was prosecutorial misco nduct. It stated:

[D]espite . . . clear evidence esta blishing that the prosecution knew of the limited use of [Louella] Bibbins ’s prior inconsistent statements, the prosecution repeatedly argued the inco nsistent statements as substantive evidence of defendant’s guilt. In its closing statemen t, 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. Mose ng 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 th e 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 th e 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, knowi ng that the evidence had been improperly
admitted. 6 The Court of Appeals determined th e 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 tr ial. 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 claime d that error is harmless, two inquires are pertinent. First, is the erro r 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 thei r violation cannot be fully assessed.” 9

In Robinson, this Court found that the pros ecutor’s deliberate injection of “improper evidence and the trial court’s ac quiescence in it are such affront to the

5 Id. at 4-5.

6 After the court improperly overruled defe ndant’s objection to the telephone call, it stated the jury likely n eeded a cautionary instruction that a prior inconsistent statement is not substantive evidence. The prosecutor re sponded that the cour t was “‘absolutely
correct.’” Id . at 4. Then, when th e 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 cour t’s nonconstitutional error in admitting evidence is not grou nds for reversal. An exception exists if, after an examination of the entire cause, it affirmativel y 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 unde rmines 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 Mi chigan Supreme Cour t, 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 th at 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 mu st serve within
constitutional limitations or else be declared void. Mi nor errors which clearly can be held not to have affected the result may be mollified by this statutory provision, but errors which de prive an accused of the right of due process of law cannot be composed thereb y to the detriment of an accused. The responsibility of mainta ining 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 th e 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 impr operly admitted in this case was very powerful. Moreover, the use of nonsubstantive evid ence as substantiv e evidence ensured defendant’s conviction. It appears that the prosecutor introduced the inadmissible hearsay to show that defendan t was a brutish, controlling ma n who, by virtue of his bad character, was likely the murdere r. There was no reason to in troduce the prior statements about the telephone conversatio n except to use them substa ntively 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 shou ld not allow a prosecutor to succeed in abusing the justice system by hidi ng behind a shield emblazoned with the
words “Harmless Error.” I woul d grant leave to consider wh ether, 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 (19 39) (emphasis added in Robinson ).