GUILTY NH - AH, 14, North Conway, 9 October 2013 - #14

[Montjoy]

Unless there is some type of video/photo evidence or a child in the womb or items disposed in the trash with DNA (sorry ew), then there really would be no way for the state to build a rape case. If they did file charges without evidence they would surely lose IMO. My guess is that there is no evidence.

That is simply untrue. You're forgetting about witness testimony.

 

[Max17]

I'm sure LE has swiped all objects and surfaces in the trailer and container for DNA evidence. Testing and compiling a 'big picture' of forensic evidence takes some time.

If Abby's DNA/strands of hair/fingerprints were found in one or more of the container compartements, that would be IMO compelling evidence even without her witness testimony.

:moo:

 

[CarolinaMoon]

This case is only days old. The victim, Abby, has a lot to tell LE and psychologists before the whole story will become clear. Kudos to the defense who, at the arraignment, mad a fuss and bother about lack of evidence. Normally, at arraignment, the charges are made and bond set. The fact is, this is only the beginning of evidence collection. The defense attorney knows full well he isn't going to get discovery until after a probable cause hearing/grand jury indictment. That will take at a minimum, 30 days. He isn't entitled to it anytime sooner.

This is LE's time to keep things close to the vest. It's when samples are sent out for DNA testing. This is the time to collect every hair fiber for testing. Heavens know how much searching will be necessary.

Abby has been severely traumatized and it may take a long time for her to tell a cohesive version of her experiences.

The defense attorney is trying to rush the investigation, IMHO, so that it becomes sloppy. I don't believe LE will allow that to happen.

As for moving the mobile home and container, the land does not belong to Kibby. Eventually, the owner will foreclose (he's losing money) and remove them himself. Makes sense to preserve the structures in a controlled environment. The idea of a 6-foot, chain-link fence (possibly with barbed wire on top) surrounding the property with armed LE round the clock just doesn't make sense to me. Would you want to live next to that?

 

[mary from nh]

good morning all. I have been reading some interesting things lately and now my mind is a little boggled.........am still learning to post links to forums so please bear with me...on that note i would just like to add to the conversation with some little tidbits of information i have come across. i will try to post links to these things as i go along......again.........good morning from New Hampshire.....

 

[mary from nh]

https://www.google.com/url?sa=t&rct...moDQBQ&usg=AFQjCNGCvc_2HFT16sSG9GzKmu6CZwJeTw I hope that this link works, one of the things that i have found out is that years ago there was an old ski area in Concord N.H. that was owned by an Elgin Kibby. it seems to have been a fairly buisy place up until it was abandoned in the 70s. Elgin Kibby was Nathanial Kibbys father.

 

[Not Without Peril]

This is what I got from some research.

False Imprisonment - If Abby voluntarily went to NK's home to visit and he would not let her leave.

Kidnapping - Abby was taken to NK's hom by force and contained. The actual movement of her personage is what is needed for the kidnapping charge.

If charged with one of those crimes that negates the other. Either she was transported against her will and later confined or she transported herself voluntarily and then was confined. It can't be both.

Kidnapping neither requires force nor movement. Instead, in New Hampshire, "[o]ne commits the crime of kidnapping 'if he knowingly confines another under his control with a purpose to: . . . [c]ommit an offense against h[er].'" (citations omitted). State vs. Casanova, N.H. Supreme Ct., No.2011-570, slip op. at 3 (February 13, 2013).

 

[Not Without Peril]

https://www.google.com/url?sa=t&rct...moDQBQ&usg=AFQjCNGCvc_2HFT16sSG9GzKmu6CZwJeTw I hope that this link works, one of the things that i have found out is that years ago there was an old ski area in Concord N.H. that was owned by an Elgin Kibby. it seems to have been a fairly buisy place up until it was abandoned in the 70s. Elgin Kibby was Nathanial Kibbys father.

Thanks, Mary from NH, and good morning. Elgin Kibby was Nathaniel Kibby's grandfather.

 

[SStarr33]

good morning all. I have been reading some interesting things lately and now my mind is a little boggled.........am still learning to post links to forums so please bear with me...on that note i would just like to add to the conversation with some little tidbits of information i have come across. i will try to post links to these things as i go along......again.........good morning from New Hampshire.....

Hi Mary

:welcome4:

So glad to have locals here! To post links, all you need to do is copy and paste the URL and the link will appear once you hit Post.

 

[SStarr33]

This is what I got from some research.

False Imprisonment - If Abby voluntarily went to NK's home to visit and he would not let her leave.

Kidnapping - Abby was taken to NK's hom by force and contained. The actual movement of her personage is what is needed for the kidnapping charge.

If charged with one of those crimes that negates the other. Either she was transported against her will and later confined or she transported herself voluntarily and then was confined. It can't be both.

I'm not sure that is right because JC Dugards' kidnapper got charged with both. Is your information from NH state law?

 

[mary from nh]

thank you as that is what i meant. I believe Elgins wifes name was Betty (Sylvia) Kibby? and i'm looking for a picture of Wayne Kibby anywhere if anyone has one? I am not sure about mentioning relatives of the accused? am not accusing anyone of anything just sleuthing.........

 

[AnaTeresa]

There should be no effort whatsoever for the attorney to know what the state's case is.

Actually, that's exactly what a defense attorney should be doing. One has to know the case to be able to adequately defend someone.

Back in the day, the discovery process was less regulated, so you have tv shows perpetuating the idea of last-minute, shocking evidence which exonerates or convicts someone. Discovery doesn't really work like that any more. Both sides are required to turn over just about all evidence that they compile while investigating the case. The idea is that both sides know exactly what evidence the other side has, so as to encourage settlements. So yes, there most certainly should be effort by the defense attorney to figure out just what the state has against his client.

 

[Not Without Peril]

thank you as that is what i meant. I believe Elgins wifes name was Betty (Sylvia) Kibby? and i'm looking for a picture of Wayne Kibby anywhere if anyone has one? I am not sure about mentioning relatives of the accused? am not accusing anyone of anything just sleuthing.........

Yes, Nathaniel's grandmother was Betty Sylvia Kibby. Since they both died in 1962, in an apparent murder/suicide, I do not see how the mention of their names would be objectionable. As to "W," perhaps it would be best to refer to him simply as Nathaniel's father. I am very new here, and I am still learning these things, as well.

 

[AnaTeresa]

Anybody know why he wouldn't have been charged with false imprisonment?

http://www.law.cornell.edu/wex/false_imprisonment

FALSE IMPRISONMENT

An crime as well as an intentional tort. A a person commits false imprisonment when he commits an act of restraint on another person which confines that person in a bounded area. An act of restraint can be a physical barrier (such as a locked door), the use of physical force to restrain, a failure to release, or an invalid use of legal authority. Threats of immediate physical force are also sufficient to be acts of restraint. An area is only bounded if freedom of movement is limited in all directions. If there is a reasonable means of escape from the area, the area is not bounded.

False imprisonment is usually a lesser included offense for kidnapping. http://en.wikipedia.org/wiki/Lesser_included_offense

Basically, a lesser included offense is conduct that is considered less serious under the law, but its elements are also included in the elements of a more serious offense. So, false imprisonment is a lesser included offense for kidnapping; larceny is a lesser included offense for robbery; assault is a lesser included offense of attempted murder; etc.

For the State to charge Kibby with both charges, there has to be separate conduct that fits the elements of both crimes. So in Jaycee Dugard's case, there were instances where she was kidnapped, and instances where the facts fit the crime of false imprisonment but lacked the facts to make it kidnapping. It's a matter of elements - each charge has a list of elements that have to be met to charge someone with a crime.

So, for false imprisonment, you have to have:
1) a person knowingly
2) confine another person (the victim) unlawfully
3) in a way which substantially interferes with the victim's physical movement

But for kidnapping, you have to have:
1) a person knowingly
2) confines another person (the victim)
3) with purpose to:
- hold the victim for ransom or as a hostage; or
- avoid apprehension by LE; or
- terrorize the victim or some other person; or
- commit an offense against the victim.

So, unless there are two separate instances, where Kibby met the facts of false imprisonment, without the added elements of kidnapping, there wouldn't be any false imprisonment charges. Does that make sense?

[NOTE: New Hampshire also has a subsection of the kidnapping statute which states "A person is guilty of kidnapping if the person knowingly takes, entices away, detains, or conceals any child under the age of 18 and unrelated to the person by consanguinity, or causes such child to be taken, enticed away, detained, or concealed, with the intent to detain or conceal such child from a parent, guardian, or other person having lawful physical custody of such child. This paragraph shall not apply to law enforcement personnel or department of health and human services personnel engaged in the conduct of their lawful duties."]

 

[SStarr33]

Actually, that's exactly what a defense attorney should be doing. One has to know the case to be able to adequately defend someone.

Back in the day, the discovery process was less regulated, so you have tv shows perpetuating the idea of last-minute, shocking evidence which exonerates or convicts someone. Discovery doesn't really work like that any more. Both sides are required to turn over just about all evidence that they compile while investigating the case. The idea is that both sides know exactly what evidence the other side has, so as to encourage settlements. So yes, there most certainly should be effort by the defense attorney to figure out just what the state has against his client.

Um, that is my point exactly. Due to the fact that there is a requirement for the State to turn over evidence, there should be no effort for the defense to obtain it None, zero, zip.

But there is always is which is complete BS.

The prosecution's job is to find the truth.

 

[AnaTeresa]

I cannot wrap my head around it. I could see later, after the search of the house, adding charges for having weed or an illegal gun, but stuff that has to do with the kidnapping should be in the kidnapping charge.

How can the defense attorney possibly defend his client if they are not done charging him for the kidnapping? What if Kibby pleaded guilty at his arraignment to the kidnapping charge, and then three weeks later they added a rape charge that happened in conjunction with that kidnapping? How can the defense get an idea as to what evidence in relevant, or what questions they need to ask their client?

It. Makes. No. Sense.

It's tricky. Usually, a defense attorney has some idea of what other charges are coming down the pike, usually from the police report from the incident which is often turned over pretty early in the case, or through discussion with the prosecutor, or because the client has been forthright about what happened that lead to the charges.

In this case, it sounds like none of those things have happened, which has left the defense attorney in a bit of a pickle. There's nothing more frustrating that a client who lies to you - it makes it harder to appropriately advise the best course of action. Not saying whether Kibby is lying to his attorney or not, as I have no real idea, but if he IS doing nothing but saying he has done nothing, doesn't know Abby, is totally innocent, etc. - when you combine that with no real evidence from the State, and a tight-lipped prosecutor, it places the defense attorney completely in the dark.

As for asking the client questions, usually we just ask what happened. Most of the time, clients are pretty honest with their attorneys, and it's apparent from the facts what other charges may occur. It's not uncommon for cases to have additional charges filed down the road from the additional charge. You have to become proficient at reading the signs, and perhaps develop a friendly relationship with the prosecutors.

 

[SStarr33]

False imprisonment is usually a lesser included offense for kidnapping. http://en.wikipedia.org/wiki/Lesser_included_offense

Basically, a lesser included offense is conduct that is considered less serious under the law, but its elements are also included in the elements of a more serious offense. So, false imprisonment is a lesser included offense for kidnapping; larceny is a lesser included offense for robbery; assault is a lesser included offense of attempted murder; etc.

For the State to charge Kibby with both charges, there has to be separate conduct that fits the elements of both crimes. So in Jaycee Dugard's case, there were instances where she was kidnapped, and instances where the facts fit the crime of false imprisonment but lacked the facts to make it kidnapping. It's a matter of elements - each charge has a list of elements that have to be met to charge someone with a crime.

So, for false imprisonment, you have to have:
1) a person knowingly
2) confine another person (the victim) unlawfully
3) in a way which substantially interferes with the victim's physical movement

But for kidnapping, you have to have:
1) a person knowingly
2) confines another person (the victim)
3) with purpose to:
- hold the victim for ransom or as a hostage; or
- avoid apprehension by LE; or
- terrorize the victim or some other person; or
- commit an offense against the victim.

So, unless there are two separate instances, where Kibby met the facts of false imprisonment, without the added elements of kidnapping, there wouldn't be any false imprisonment charges. Does that make sense?

[NOTE: New Hampshire also has a subsection of the kidnapping statute which states "A person is guilty of kidnapping if the person knowingly takes, entices away, detains, or conceals any child under the age of 18 and unrelated to the person by consanguinity, or causes such child to be taken, enticed away, detained, or concealed, with the intent to detain or conceal such child from a parent, guardian, or other person having lawful physical custody of such child. This paragraph shall not apply to law enforcement personnel or department of health and human services personnel engaged in the conduct of their lawful duties."]

So maybe no one in NH ever gets charged with false imprisonment and kidnapping since, one way or another, it is included in kidnapping?

 

[AnaTeresa]

Um, that is my point exactly. Due to the fact that there is a requirement for the State to turn over evidence, there should be no effort for the defense to obtain it None, zero, zip.

But there is always is which is complete BS.

The prosecution's job is to find the truth.

The law disagrees with you. The rules of the court provide for motions and arguments that this attorney is filing. Some evidence can be lost, if you don't claim it via motion.

What the defense attorney is doing is not out of the norm, and is well within the realm of appropriate conduct.

 

[AnaTeresa]

So maybe no one in NH ever gets charged with false imprisonment since, one way or another, it is included in kidnapping?

It's a misdemeanor in NH, I think. So it's a matter of seriousness. I'm guessing, a domestic violence argument where one party doesn't let the other leave the room - that would be false imprisonment. But a more escalated argument, where one party doesn't let the other leave the room, because he is intending to stab the other person - that would be kidnapping.

 

[Not Without Peril]

False imprisonment is usually a lesser included offense for kidnapping. http://en.wikipedia.org/wiki/Lesser_included_offense

Basically, a lesser included offense is conduct that is considered less serious under the law, but its elements are also included in the elements of a more serious offense. So, false imprisonment is a lesser included offense for kidnapping; larceny is a lesser included offense for robbery; assault is a lesser included offense of attempted murder; etc.

For the State to charge Kibby with both charges, there has to be separate conduct that fits the elements of both crimes. So in Jaycee Dugard's case, there were instances where she was kidnapped, and instances where the facts fit the crime of false imprisonment but lacked the facts to make it kidnapping. It's a matter of elements - each charge has a list of elements that have to be met to charge someone with a crime.

So, for false imprisonment, you have to have:
1) a person knowingly
2) confine another person (the victim) unlawfully
3) in a way which substantially interferes with the victim's physical movement

But for kidnapping, you have to have:
1) a person knowingly
2) confines another person (the victim)
3) with purpose to:
- hold the victim for ransom or as a hostage; or
- avoid apprehension by LE; or
- terrorize the victim or some other person; or
- commit an offense against the victim.

So, unless there are two separate instances, where Kibby met the facts of false imprisonment, without the added elements of kidnapping, there wouldn't be any false imprisonment charges. Does that make sense?

[NOTE: New Hampshire also has a subsection of the kidnapping statute which states "A person is guilty of kidnapping if the person knowingly takes, entices away, detains, or conceals any child under the age of 18 and unrelated to the person by consanguinity, or causes such child to be taken, enticed away, detained, or concealed, with the intent to detain or conceal such child from a parent, guardian, or other person having lawful physical custody of such child. This paragraph shall not apply to law enforcement personnel or department of health and human services personnel engaged in the conduct of their lawful duties."]

In New Hampshire, is false imprisonment a lesser included offense of kidnapping?

As you stated, false imprisonment requires proof of substantial interference with physical movement. See RSA 633:3. Kidnapping has no such element. See Casanova, supra.

 

[SStarr33]

The law disagrees with you. The rules of the court provide for motions and arguments that this attorney is filing. Some evidence can be lost, if you don't claim it via motion.

What the defense attorney is doing is not out of the norm, and is well within the realm of appropriate conduct.

I am saying it is BS that the defense has not been given the info.