Newport
Through his lawyer, Ian Kibbe has asked a Sullivan Superior Court judge to throw out the most serious charges against him: conspiracy to commit perjury and attempted perjury. The felony counts allege Kibbe falsely claimed in an affidavit that he found the weapons “in plain view” during a search. In fact, prosecutors assert, Kibbe unlawfully opened a suitcase and bag to uncover a baton and a handgun.
Kibbe subsequently submitted his affidavit in court, where a judge determined there was probable cause to arrest Christopher Ratcliffe and charge him with being a felon in possession of dangerous weapons, among other things.
Kibbe asserts that the allegedly false statements he made are not “material” to the proceedings because they weren’t capable of affecting the outcome of Ratcliffe’s probable cause hearing, according to his motion filed on July 20 by attorney Eric Wilson in the Newport courthouse.
For someone to be guilty of perjury, he or she must make a “false material statement” under oath, with “material” being defined as being capable of impacting the outcome of the court hearing, according to state law.
“The direction and the course of determining probable cause to support Ratcliffe’s arrest was not altered by the alleged false statements by the defendant,” Wilson wrote. “Excluding all alleged false statements, the existence of probable cause remained and the arrest of Ratcliffe was supported by probable cause.”
The prosecution objected to Kibbe’s motion to dismiss the perjury charges in a reply filed on Thursday.
Assistant Attorney General Geoffrey Ward said Kibbe made his “lies” in order to establish probable cause to arrest Ratcliffe and take him in front of a judge.
The judge then relied on Kibbe’s statements to make his determination of probable cause, statements Ward said were material because they were “capable of affecting the course or outcome of the proceeding,” Ward wrote.
“The defendant misrepresented the manner in which certain evidence was discovered, in an attempt to make it appear as if the evidence were discovered legally in ‘plain view’ when it was actually discovered during an unconstitutional warrantless search,” Ward continued. “In so doing, the defendant’s lies were capable of affecting the course or outcome of the criminal case against Mr. Ratcliffe.”
Reached by phone, both Wilson and Ward declined to comment on the pending matter.
Kibbe stands charged with a total of six counts. In addition to perjury, he faces two counts each of unsworn falsification and obstructing government administration. He has pleaded not guilty and remains out on bail.
Kibbe, former Claremont officer Mark Burch and State Police Trooper Eric Fosterling went to Ratcliffe’s apartment in February to arrest him for violating a protective order.
After police took Ratcliffe into custody, Kibbe allegedly re-entered Ratcliffe’s bedroom and took possession of weapons he said he and Burch found in plain view, according to an affidavit from Investigator Todd Flanagan.
After the search, Fosterling told superiors he believed Kibbe — and Burch, who later spoke to investigators under a proffer agreement — unlawfully seized items from Ratcliffe’s room.
Burch, who had been on the force less than a year, told investigators that he and Kibbe had lied in their reports, according to the affidavit. Burch hasn’t been charged in connection with the case. On Thursday, Ward, the assistant attorney general, said the investigation is ongoing.
The charges against Ratcliffe that pertained to unlawful possession of weapons have since been dismissed.
In Kibbe’s motion to dismiss, he also denies ever having sworn the affidavit in front of a justice of the peace, which could also weaken any perjury charge.
A hearing on the motion to dismiss will be held in Sullivan Superior Court on Sept. 14.
Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.