State v. Gibson
| Docket Number | 111440 |
| Decision Date | 20 July 2023 |
| Citation | 2023 Ohio 2481 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. KODII GIBSON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-642539-B
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano and Kevin Cafferkey, for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} This appeal arises from the deaths of Paul B. and his daughter, P.B., who were kidnapped from their home with their bodies eventually discovered in a burning vehicle. Following a jury trial, defendant-appellant, Kodii Gibson ("Gibson"), was convicted of one count each of aggravated burglary and having a weapon while under disability, and two counts each of aggravated murder, kidnapping, aggravated arson, murder, and felonious assault.[1] Gibson asks us to review the trial court's rulings on his motion to suppress Batson challenge, motions for mistrial, the admissibility of evidence, jury instructions, and Crim.R. 29 motion for acquittal. Gibson also challenges his life sentence in prison and contends that he was deprived of the effective assistance of counsel. For the reasons set forth below, we affirm.
{¶ 2} In October 2018, East Cleveland Police discovered the remains of Paul B. and P.B. (d.o.b. 01/19/04) in Paul B.'s rental vehicle, which was set on fire. Gibson and codefendant, Ronald Newberry ("Newberry"), were initially charged in November 2018 in State v. Gibson, Cuyahoga C.P. No. CR-18-634623, which was dismissed without prejudice in January 2019, at the request of plaintiff-appellee, the state of Ohio. In December 2018, Gibson, along with Newberry, Quentin Palmer, and Demarcus Sheeley ("Sheeley"), were then charged in a 15-count indictment. State v. Gibson, Cuyahoga C.P. No. CR-18-634754. In August 2019, this case was dismissed without prejudice at the request of plaintiff-appellee, the state of Ohio.
{¶ 3} Gibson, Newberry, and Sheeley were ultimately reindicted in July 2019, regarding the matter before us, in a 15-count indictment carrying the death penalty.[2] Counts 1-4 charged each of them with aggravated murder. Counts 5-6 charged them with kidnapping. Count 7 charged them with aggravated burglary. Counts 8-9 charged them with aggravated arson. Counts 10 and 12 charged them with murder. Counts 11 and 13 charged them with felonious assault. Count 14 charged Gibson with having a weapon while under disability ("HWWUD"). Count 15 charged Newberry with HWWUD.
{¶ 4} Each of Counts 1-3, 5-6, 7, and 10-11 contained a one- and three-year firearm specification. Each of Counts 1-4 contained a course of conduct specification alleging that the aggravated murders were part of a course of conduct involving the purposeful killing of two or more persons. Each of Counts 1-4 contained felony murder specifications, alleging that the aggravated murders were committed while the codefendants were committing or fleeing immediately after committing aggravated burglary, kidnapping, and aggravated arson. Count 13 contained an accelerant specification alleging that the offender used an accelerant in committing the offense.
{¶5} Trial was initially set for January 2020, but was continued several times due to ongoing discovery and the pandemic. On November 18, 2020, Gibson filed a motion to suppress. In his motion, Gibson alleged that on November 10, 2018, the day he was arrested, his attorney visited him at the East Cleveland Police Department. His attorney at that time advised the police that Gibson would not be making a statement. Two days later, East Cleveland police detectives reported Patrolman Michael Woodside ( ) gave them a Form-M, which is an interdepartmental memo. The Form-M indicated that Gibson wanted to speak with the police. Gibson was then re-mirandized and interrogated by East Cleveland Police Detective Commander Joseph Marche ("Det. Marche") and Detective Kenneth Lundy ("Det. Lundy"). This interaction and the interrogation was recorded on video tape.
{¶ 6} Gibson alleged that his statement to police should be suppressed because the police reinitiated a custodial interrogation after his attorney advised that he would not be making a statement and his statement to the police was involuntary. The state opposed, arguing that Gibson voluntarily initiated contact with the detectives and waived his Miranda rights.
{¶ 7} The matter was set for a hearing that was continued until September 9, 2021. On September 8, 2021, Gibson entered into a plea agreement with the state to a 30-year prison sentence for pleading guilty to amended counts of involuntary manslaughter with a three-year firearm specification (Counts 1 and 2) and felonious assault (Count 11 and 13). The one-year firearm specification, course of conduct specification, and felony murder specifications on Counts 1 and 2 were deleted. The one- and three-year firearm specification on Count 11 and the accelerant specification on Count 13 were also deleted. In exchange, Counts 3, 4, 5, 6, 7, 8, 9, 10, 12, and 14 were nolled, and Gibson agreed to testify against his codefendants.
{¶ 8} On October 18, 2021, the state filed an unopposed motion to withdraw the plea and advance to trial because Gibson refused to testify. The trial court granted the motion on October 20, 2021, and set the matter for trial on November 12, 2021. On November 9, 2021, the court held a hearing on Gibson's motion to suppress. Gibson's attorney at the time of the arrest testified that he was retained by Gibson's mother to represent Gibson. The first time he met Gibson was at the East Cleveland jail on November 10, 2018, which was the date of Gibson's arrest. He spoke with officers there and advised that Gibson would not be making a statement. He then spoke with Gibson and advised him to not make a statement. This interaction was captured on video and played for the court during the suppression hearing.
{¶ 9} On November 12, 2018, East Cleveland Ptl. Woodside completed a Form-M, which was addressed to Det. Lundy, Ptl. Woodside, and stated that on November 12, 2018, at approximately 1450 hours, Gibson requested to speak with detectives while he was doing a jail check. As a result, Gibson was brought to the detective bureau to speak with Det. Lundy and Det. Marche. Gibson's statement was also played for the court.
{¶ 10} In the video, Gibson can be observed telling Det. Lundy and Det. Marche that he did advise Ptl. Woodside that he wanted to speak with them and he was aware that Attorney Grant had previously advised him not to do so, but that he wanted to waive his rights and speak to the detectives without his attorney present. Gibson's Miranda rights were then read and Gibson signed a Miranda form waiving those rights. During this interview, Gibson never asked for an attorney nor did he ask to stop the interview.
{¶ 11} Gibson advised the detectives that he, Newberry, Sheeley, and a fourth male, were involved in the incident. Newberry told him that he had a "play," which is a robbery. On the evening of October 10, 2018, Gibson, Newberry, Sheeley, and the unidentified male, drove to Paul B.'s house in Bedford, Ohio intending to rob Paul B. The unidentified male was driving them in Newberry's Ford. The first time they drove by the house, they observed someone give P.B. a bag in the driveway. They left Bedford and returned to East Cleveland. When they returned to Paul B.'s house for a second time, they observed a car in the driveway. They parked the car further down the street. Eventually, Gibson, Newberry, and Sheeley exited the Ford and approached the house, while the driver remained in the vehicle. At that time, a Buick was the only vehicle in the driveway.
{¶ 12} Gibson stated that once inside, they ordered Paul B. and P.B. out of their respective bedrooms. Newberry and Sheeley had guns and were ordering Paul B. by gunpoint. They were looking for money or drugs. Paul B. told them that he did not have anything. Gibson believed Paul B. and told Newberry that there was nothing at the house and they should leave it alone. The three of them did not find any money at the house, but left with a duffle bag containing a PlayStation 4, a Gucci watch, and a Ferragamo belt.
{¶13} Paul B. told them that he had money at another house. They ordered Paul B. and P.B. out of the house. Paul B. was tied up and his face was covered with a t-shirt. He was placed in the backseat of the Buick, which was driven by Newberry. P.B. was placed in the backseat of Newberry's car, which was driven by the fourth male. P.B. was not tied up. Gibson rode in Newberry's Ford. They never drove to the other house that Paul B. mentioned, instead they drove to a house on Wadena Street in East Cleveland.
{¶14} At Wadena, there was a discussion about killing Paul B. and P.B. Gibson stated that he did not want to kill anyone. Gibson called Quiana Gilbert ("Gilbert"), who was his girlfriend at the time, and instructed her to bring him a gas can. She brought him the gas can with her friend. At some point, he walked to the store with Sheeley while the unidentified male stayed in the vehicle with P.B.
{¶15} Eventually they end up at a field near Savannah Avenue in East Cleveland where the plan was to set the car on fire. Prior to arriving at the field, they took P.B. out of Newberry's vehicle and placed her in the Buick with her father, Paul B. Gibson stated that Paul B. and P.B. were both shot prior to arriving to the field. Once at the field Newberry and Sheeley set the car on fire. Gibson and the unidentified male were waiting in Newberry's car, which was parked...
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