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Day 3: Testimony continues in Kirby murder trial

Morning Journal/Deanne Johnson Ed Lulla, a special agent from the Ohio Bureau of Investigations, points to an area of a map of Melinda Todd’s home where he gathered crime scene evidence the day of the murder in 2012.

LISBON — Investigators continued to lay out the case against Kevin Kirby for jurors in Common Pleas Court on the third day of testimony before Judge Megan Bickerton on Thursday.

Kirby, 46, of Lisbon, is charged with two counts of aggravated murder in the bludgeoning death of Melinda Todd in her Salem Township home in 2012, one count of attempted murder for injuries caused to her grandson, Cole Reed, and one count of tampering with evidence.

Deputy Jeff Haugh, who was a sergeant detective with the Columbiana County Sheriff’s Office, concluded his evidence from Wednesday, talking about how Kirby’s story changed between the first, second and third time he was interviewed by detectives. Haugh said there were about 16 inconsistencies with Kirby’s first statement, which he continued to change to fit the new information investigators had found.

The only thing that did not change was Kirby’s insistence he did not leave Lisbon the day of the murder, even when Haugh said investigators found his phone hit off of a phone tower just south of Todd’s home on state Route 45 and Salmar Drive on Monday, Dec. 3, 2012, the afternoon of the murder. One was a missed call from Aaron’s Rental at 12:18 p.m. that day, which was the company Kirby had rented his television through. The other was from his friend, Mike Gargano, at 12:25 p.m.

Gargano would later take the stand on Thursday and tell the jury about how he and his girlfriend had invited Kirby over for dinner the night before Todd’s murder. Gargano knew Kirby was out of work. They gave him $30 or $40 for “gas and smokes” and set up an interview for him the next day with a friend at TruCut. Gargano said Kirby told him he went to the interview, but later he learned he did not show up for it.

On Dec. 8, a day after deputies were at Kirby’s house, Gargano said Kirby showed up at his home. It was a cold and rainy day and Kirby was wrapped in a blanket and shaky. Gargano said Kirby asked them to take him to St. Elizabeth’s Hospital. Gargano said Lisbon is a small town and he knew deputies had been to Kirby’s house the night before.

“I thought he had hit rock bottom,” Gargano said. “If you have an addiction or not on the right medications, if you are banging on my door and asking me to check you in, I would call that rock bottom.”

When questioned by defense attorneys, Gargano said he asked Kirby if he wanted to talk about things on the way to the hospital, but he never admitted to murdering Todd or harming Reed.

Jurors also heard testimony on Thursday from three people working with the Ohio Bureau of Criminal Investigations. Then-Special Agent Ed Lulla showed the jury photos of the crime scene he took while he processed it. He explained the different types of blood spatter, the pool of blood where investigators believe Reed had lay for sometime after he was struck twice in the head with a hammer and skull fragments found on the carpeting.

Although a large amount of blood was found in the home, blood was not found in Kirby’s vehicle. Only a very small spot on the button on the driver’s door that puts down a window was linked to Todd through DNA. However, in the hundreds of cases Lulla has investigated, he said everyone is unique and a large amount of blood in the home does not mean a large amount in a vehicle. Instead he said the blood may have only been on the front of the defendant, absorbed by the fabric and dried. It could be on a defendant’s hands, but wiped off or washed off before they get into the vehicle. He said no blood was found in either the kitchen or bathroom sink at Todd’s home.

Two DNA analysts through BCI, Emily Feldenkris and Hallie Dreyer, went through all the envelopes and packages of evidence they swabbed and tested for DNA. Both investigators had Todd, Reed and Kirby’s DNA to compare those swabs to and while some places around and on Todd’s body, clothing and home tested positive for possible male DNA, some of it was linked to Reed and others were inconclusive or unsuitable for comparison.

Defense attorney Paul Conn questioned whether investigators were given the DNA of Eric Gudak to analyze the samples against. Both women said they were not.

Gudak’s name came up in testimony on Wednesday as someone who had contacted authorities about being at Todd’s home, but was ruled out as a suspect by investigators.

Jurors also heard brief testimony from John Heim, Todd’s stepfather. His testimony came through a deposition taken in July in case he was unable to testify during the trial due to some of his health concerns. Assistant County Prosecutor Steve Yacovone said Heim was recently exposed to someone with COVID-19 and was quarantining on Thursday.

Heim, who lives near the courthouse in Lisbon, testified he went to McDonalds the morning of the murder and dropped off a Happy Meal for Reed and water for Todd. She reportedly told him she was sick and asked him to just leave the items on the steps and not come into the house. He went to Adele’s Restaurant on the outskirts of Salem for a late breakfast or early lunch and when he drove back past the house, Heim testified he saw a green SUV he did not recognize in Todd’s driveway. He did not stop by.

Heim’s time frame for this trip to McDonalds, Todd’s home, Adele’s Restaurant and back differed during his testimony, leading defense attorney James Wise to question if Heim was really not sure what time he went.

There was another delay on Thursday, when jurors returned from their lunch break at 1 p.m. only to be asked to return at 2 p.m. due to one of the attorneys having a family emergency. The case was suspended for nearly a week following jury selection due to a possible COVID-19 exposure concern to one of the attorneys involved.

Testimony is scheduled to resume this morning.

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