Newport
Kibbe’s attorney, Eric Wilson, and Assistant Attorney General Geoff Ward argued their points on Friday during a hearing on a motion to dismiss Kibbe’s conspiracy to commit perjury and attempted perjury charges.
Those charges allege Kibbe falsely claimed in an affidavit that he found weapons “in plain view” during a search of a convicted felon’s bedroom in Claremont in February.
However, Kibbe didn’t see those weapons in plain view — he unlawfully opened a suitcase and a bag to find a baton and handgun in Christopher Ratcliffe’s room, something he then lied about in his official report, prosecutors allege.
Ratcliffe subsequently was charged with being a felon in possession of dangerous weapons, among other things.
Kibbe, former Claremont officer Mark Burch and State Police Trooper Eric Fosterling went to Ratcliffe’s apartment 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 the 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.
Wilson said the allegedly false statements Kibbe made are not “material” to the proceedings because they weren’t capable of affecting the outcome of Ratcliffe’s probable cause hearing.
For someone to be guilty of perjury, he must make a “false material statement” under oath, with “material” being defined as being capable of impacting the outcome of the court hearing.
Regardless of Kibbe’s alleged lies, Wilson said, there still would have been probable cause to arrest Ratcliffe.
Ward disagreed, saying Kibbe lied to establish probable cause to arrest Ratcliffe.
The judge then relied on those statements to find probable cause and charge Ratcliffe, Ward said.
It is unclear when Tucker will issue his ruling. Kibbe faces four other charges: two counts each of unsworn falsification and obstructing government administration.
He has pleaded not guilty and is slated to head to trial later this year.