United States District Court, E.D. Michigan, Southern Division
AMENDED 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
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE
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.
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.)
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.
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.
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.
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.)
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.
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.
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
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
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
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.
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 ...