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Gibson v. Haas

United States District Court, E.D. Michigan, Southern Division

April 18, 2018

RODERICK DENNIS GIBSON, Petitioner,
v.
RANDALL HAAS, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         Roderick Dennis Gibson (“Gibson”) is a state prisoner in the custody of the Michigan Department of Corrections. On October 3, 2016, Gibson filed a petition for a writ of habeas corpus in this Court pursuant 28 U.S.C. § 2254. (See ECF #1.) In that petition, Gibson challenges his state-court convictions of three counts of first-degree murder, MICH. COMP. LAWS § 750.316, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. Following a jury trial, the state court sentenced Gibson to three concurrent terms of life imprisonment for the murder convictions and a consecutive two-year term for the firearm conviction.

         Gibson raises four claims in his petition: (1) the trial court erred when it failed to declare a mistrial after a police officer testified that he interviewed a previously undisclosed eyewitness; (2) the prosecution violated a discovery order when it failed to provide police activity logs to defense counsel; (3) the prosecution committed misconduct when it vouched for the credibility of the prosecution's star eyewitness; and (4) Gibson's trial counsel was ineffective when he failed to object to the misconduct of the prosecution. (See id.)

         The Court has reviewed Gibson's petition and concludes that his claims are without merit. Therefore, the Court DENIES the petition. The Court will also deny Gibson a certificate of appealability. However, it will grant him permission to appeal in forma pauperis.

         I

         A

         The charges against Gibson arose from allegations that he and two other men shot to death three men who were sitting in a parked car on a residential street in Detroit. Duane Thomas, Jermar Gibson (“Jemar”), and Omar Johnson (“Omar”) were also charged with various offenses arising out of this incident.

         The prosecutor's star witness was Cleophus Pye. Pye testified that he and the co-defendants were life-long friends, and he considered them to be members of his family.

         According to Pye, during the afternoon of June 4, 2011, Gibson arrived at Pye's house and asked Pye to move his car from the street, telling Pye, “It's about to go down.” (ECF #9-11 at Pg. ID 820.) About an hour later, as Pye was standing outside with Gibson, Thomas, Jermar, and two other neighbors, Pye overheard Jermar talking on his cell phone. Jermar told the person he was speaking with, “I'm on the block, ” and then Jermar told Thomas that “they on they way.” (Id. at Pg. ID 826-28.) Jermar then walked into the middle of the street and signaled to a car that was driving towards them. (See id. at Pg. ID 832.) Jermar told Thomas, “that's him, he pulling up.” (Id. at Pg. ID 833.)

         The car stopped behind Pye's vehicle. Pye walked towards it and saw that three men were seated inside. The front seat passenger had a handgun between his legs. Pye heard gunshots and turned to see Gibson firing an AK-47 into the air. Meanwhile, Thomas moved to the driver's side window, pulled out a revolver, and shot the driver in the back of the head. Gibson approached the front passenger window and fired the AK-47 into the car. Pye heard Thomas yell at Gibson, “you shot me, ” and Thomas stumbled away from the vehicle. (Id. at Pg. ID 850.) Gibson continued to shoot into the passenger window.

         Omar, who is Gibson's uncle, approached Gibson and took the AK-47 from him. Gibson then climbed into the driver's seat of the car, pushed the body of the driver over, and drove the car away. Omar returned a few minutes later with a broom and swept broken glass from the street and picked up shell casings. Pye noticed that Thomas was lying in the street, and so he called 9-1-1.

         When Detroit Police Officers responded to the scene, they found Thomas lying on the ground with a gunshot wound. About a block away, officers found a car containing the bodies of the three victims, later identified as Curtis Burnett, Gary Owens, and Shemar Johnson. Officers recovered broken automobile glass and spent shell casings in the street near Omar's residence. Blood droplets and a piece of human flesh were found in the street and on the sidewalk. Inside Omar's residence, officers recovered unspent 7.62mm rounds, similar to some of the spent casings found in the street.

         A few days after the shooting, Pye met with Detroit Police Officer Derrick Mayes and gave a statement implicating Gibson, Thomas, and Jermar. Omar later informed Pye that Jermar had owed money to one of the victims, and that Gibson had initially fired shots into the air to warn him to get away from the vehicle. Pye testified that Gibson called him several times after the shooting and offered to pay him $5, 000 to tell the police that Gibson was not present at the scene. Pye thereafter move Evidence gathered at the scene corroborated some of Pye's eyewitness account. Forensic examiners were able to match a few of the casings found at the scene with slugs found in the vehicle, and the various calibers of the casings indicated more than one weapon was used. Broken automobile glass found at the location where Pye said that the shooting occurred matched the victims' vehicle, and some of the blood found in the street was matched to co-defendant Thomas. In addition, cell phone records indicated that shortly before the shooting, and during the time-frame testified to by Pye, phone calls were made between Jermar and victim Gary Owens. Finally, the prosecution presented evidence that based on the location of the cell towers used for those calls, Jermar was in the general vicinity of the incident at the time of the shooting.

         Two Detroit Police Officers also testified at trial. Officer Johnell White testified that during the early part of the investigation, after he received information regarding a possible eyewitness, he proceeded to a nearby grocery store. White then testified as follows:

Q: All right. And do you recall the reason why you went to that grocery store?
A: We went there to meet a possible witness to the shooting.
Q: Alright. And did you in fact meet someone when you went to that grocery store?
A: Yes, we did.

(ECF #9-15 at Pg. ID 1455.) Before White testified any further, defense counsel asked for a sidebar and proceedings were concluded for the day.

         The following morning, defense attorneys for the all the defendants moved (1) to exclude any testimony about what the eyewitness might have told Officer White and (2) for a mistrial. The trial court ruled that Officer White could not testify as to any statements made by the witness on hearsay grounds, but it denied the motion for mistrial:

This is the Court's ruling. I'm ready to rule. I find that based - First of all, just to make it very clear, no evidence will be admitted from Officer Johnell White as it relates to the identity, the substance of the discussion he had with the anonymous person, period. I don't want any reference at all to Officer White's meeting with an anonymous person. And I do that for two reasons; number one, I really do feel that there was a duty on [the prosecutor's] part in light of the fact that there was a written statement from this officer, and because of the fact, Ms. Stanford, that you received information yesterday, that you could - you should have, I believe, supplemented that information that you received at noon to the defense counsel. And I think with all that has been said - this is not a remedy, necessarily, in response to what I consider to have been an obligation that you had to disclose ...

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