By Fiona Davis
SACRAMENTO, CA – In a preliminary hearing held in Sacramento County Superior Court this Wednesday, a heated exchange broke out between the defense and presiding judge, as the defense attorney accused the judge of “predetermining” his ruling in favor of the prosecution.
“I don’t think the court should predetermine its decision-making now … I think it’s inappropriate for the court to have already made up its mind,” private Defense Attorney Kelly Lynn Babineau told the court.
Tabitha Markle has been charged with six felony counts related to the unlawful possession of firearms. With a felony record in a separate unknown case, the defendant is prohibited from owning, purchasing, or possessing any firearms.
Markle has pleaded not guilty to all charges.
On Wednesday, during Markle’s preliminary hearing, Deputy District Attorney Kitty Tetrault called Israel Montreuil, a deputy sheriff in Sacramento County, to testify.
When questioned by the prosecution, Montreuil stated that he had been dispatched to Markle’s home in mid-January of this year, where he assisted in a search of the residence that she shared with her 20-year-old son.
In one bedroom of the house, Montreuil found several handguns, as well as ammunition cans. Deputy Montreuil then briefly questioned Markle, who stated that, “she owned [the firearms] and would take responsibility for everything.”
During the deputy sheriff’s testimony, Montreuil requested on several occasions to review his notes from the case in order to refresh his recollection, so much so that DDA Tetrault paused her questioning to remind him that he could not directly read from his report while testifying.
In response to Montreui’ls consistent use of his notes, defense attorney Babineau began her cross-examination of the deputy sheriff with questions meant to examine “the credibility of the officer, and his ability to recall.”
When the prosecution objected to this line of questioning, stating that it was irrelevant to the case at hand, Babineau requested to make “just a brief record” without the witness present.
Once the officer was no longer present, the defense attorney reasoned that “the only thing that the court has to establish reasonable suspicion in a preliminary hearing is judging the credibility of the witnesses.”
“This officer has repeatedly stated he doesn’t recall things. He’s had to refresh his recollection on almost every fact he has testified to,” Babineau stated emphatically. “I think it goes to the quality of the investigation and the court’s analysis.”
During this discussion, Babineau also explicitly argued that the firearms found at the residence were the property or possession of the defendant’s son, and the items were exclusively found in his bedroom.
“I will tell the court that the witness that I intend on calling is the son who lived in the bedroom, and is going to claim ownership of the guns,” Babineau stated.
Despite the defense’s arguments, Judge Stephen Acquisto, who oversaw Markle’s preliminary hearing, sustained DDA Tetrault’s initial objection.
He told Babineau, for the purposes and standards of a preliminary hearing, he was “not really weighing credibility so much,” but instead looking for “evidence that would establish the elements of these various charges.”
Judge Acquisto also noted that, even if the son’s testimony appeared to be “very credible,” and did indicate the firearms were his, he felt that that evidence would not be enough to rule in favor of the defense.
“I’ll tell you right now, you’re still free to present (the) son … I would still hold you to answer,” he said directly to Markle. “Because there’s also evidence that it’s your house, and that you took responsibility for those firearms … even if your son testifies in the way I just outlined, that’s not going to really affect my ruling today.”
In response, Babineau openly criticized the judge’s statements, arguing that Judge Acquisto, by preemptively stating that the defense’s evidence was “not going to really affect” his ruling, had effectively and inappropriately predetermined the outcome of the hearing.
“I’m really disturbed by what the court just said, because you’ve just indicated that you’re predetermined before you’ve even heard all the evidence, how you’re going to rule in this hearing. That is a problem,” Babineau told the court.
“That actually violates [my] client’s right to a fair hearing, because the court is not willing to consider all of the evidence,” she continued.
The defense attorney also disagreed with the judge’s understanding of credibility for the purposes of a preliminary hearing, telling him ,“My job is to demonstrate to the court that (the witness) is not credible. Your job is to weigh the credibility of the witnesses.”
Judge Acquisto adamantly denied Babineau’s assertions.
“That’s not really true from my perspective … I’m going to listen to all the evidence,” he told the defense attorney. “You’re free to call that witness. But just a mere reputation of what the officer’s testifying … by another defense witness, let alone the son of the defendant, would not be enough by itself.”
Before the officer was called back into court, Babineau reiterated her frustration with the judge’s comments, and indicated that she intended to report and document what had occurred.
“We could continue this discussion … but I can tell from the court’s statements that nothing that I say is going to convince you that your statements were inappropriate, right?” she stated.
“I appreciate the court being candid with me … we can proceed with the hearing, and I’ll file the appropriate motions afterwards.” she added conclusively.
Following this heated exchange, the officer’s testimony was eventually concluded, and the defendant’s son was called to testify. He told the court that the bedroom where the weaponry had been found had “always been [his]” and “everything in there is [his].”
He also noted that his mother had not known about the firearms until the day of her arrest, stating “I didn’t tell her anything… I felt that it was better for the household if not everyone knew.”
In his final ruling, Judge Acquisto noted that, while “the evidence shows that this particular room was (the son’s) room,” he was not convinced that the defendant did not know about the firearms, or that she had not been in possession of the items in question.
With this, the judge ruled that there was sufficient cause to hold the defendant to answer to all counts.
Markle is scheduled for trial Jan 19.
