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Guns, marijuana part of Abbey prosecution case

Defense argues former sheriff’s detective not involved in criminal activities

Guns, marijuana part of Abbey prosecution case

Kari Abbey


POSTED December 9, 2011 10:59 p.m.

In the third day of the preliminary hearing for Kari Abbey the prosecution continued their efforts to prove the former Stanislaus County Sheriff’s detective was involved in numerous criminal activities, including the fatal shooting of a 31-year-old woman.

Abbey’s defense team, led by attorney Michael Rains, started presenting their case that Abbey acted in self-defense the night of the fatal encounter and that the Stanislaus County District Attorney’s Office has unjustly targeted her for criminal charges.

Abbey, 34, is accused of shooting Rita Elias to death on Sept. 24, 2010, during an altercation at a Modesto property owned by Abbey’s father. Investigators obtained search warrants for Abbey’s residential property, where she lived with her husband Bennie Taylor, their two children and her parents as the probe into the shooting expanded. During the search investigators seized an assault rifle, a shotgun, a .22-caliber handgun, steroids, two police vests, 106 marijuana plants ranging in maturity, along with three bags of packaged marijuana, scales and packaging material.

Abbey was subsequently arrested and charged with second-degree murder, voluntary manslaughter, conspiracy to forcibly enter a home, embezzlement from a government entity, receiving stolen property, cultivating marijuana, and permitting a child to be endangered.

The defense has argued that Abbey was not involved with the marijuana grow and that the embezzlement, stolen property and child endangerment counts are trumped up charges.

“They’re trying to smear my client by the activity of others,” Rains said during Thursday’s hearing.

The preliminary hearing is being held to determine if there is enough cause to hold Abbey over on all the charges.

A key element of the prosecution’s murder charge is the residency of Elias. The prosecution, led by Chief Deputy District Attorney Dave Harris, contends Elias was a rightful tenant at the 1708 Donald St. property and therefore should have been afforded a renter’s right to a due process eviction. The prosecution claims Abbey acted illegally when she tried to force Abbey from the property and when she entered the home without giving due notice or getting permission.

Abbey was at the residence to collect rent when the two women got into a verbal argument that soon escalated into a physical fight. At some point the two women separated and Elias went back into the home. Abbey retrieved a pistol from her vehicle and Elias came out of the home with a gun in one hand and a branch in the other. Abbey fired her pistol, striking Elias three times, killing her within minutes. It was later discovered the gun in Elias’ hand was a BB gun.

The prosecution has presented cable receipts and a probation department letter as proof Elias was a tenant at the home.

The defense attempted to counter this claim by calling sheriff’s detective Joe Delgado to the stand. Delgado interviewed several people in connection to the shooting, including the men listed as the tenants at the Donald Street property. One of the men told Delgado that Elias was just a guest who would come and go and that she never stayed long at the home. Delgado also testified the man told him Elias’ name was on the cable bill because she was the only one with a photo id card.

District attorney’s office Investigator Kirk Bunch was the first witness called Thursday and he detailed his role in the search of the Service Road property where Abbey resided.

Bunch said he could smell a strong odor of marijuana while conducting the search. Inside a large shop the investigators found a marijuana grow set-up. A portion of the shop had been converted into living quarters and the marijuana was found in an adjacent room to the living room.

Bunch testified they found receipts from a hydroponics shop dated about five months prior to the search date on March 31. The set-up included grow lights, an irrigation system, air filtration and a timer, according to Bunch.

Under cross-examination Bunch stated investigators had not checked with the hydroponics shop to verify who bought the equipment, nor had it been fingerprinted.

In the living space of the shop investigators found a closet containing uniforms belonging to Abbey and her husband Bennie Taylor, who retired from the Hayward Police Department in 2010.

Previous testimony revealed Abbey and Taylor resided in the shop in 2007 while work was done on the man house. They subsequently moved into the main house and the converted shop was occupied by her parents.

During cross-examination district attorney’s office Investigator Mike Hermosa said he had spoken with Abbey’s father, James Abbey, during the search and that he made the statement “don’t ruin my plants,” when investigators entered the shop.

James Abbey allegedly told investigators he was growing the marijuana for several veterans with post traumatic stress syndrome living in the mountains, but would not provide their names to investigators, Bunch said. James Abbey did give investigators with medical marijuana prescriptions for himself, his brother and a third man. Bunch said the grow operation was not in compliance with California’s medicinal marijuana laws and that James Abbey is the subject of a pending investigation.

The charge of receiving stolen property stems from the two police vests found in Abbey and Taylor’s bedroom. One was a ballistic vest worn by SWAT members and the other was a tactical vest with the name of a deceased detective stitched onto it.

The prosecution claims both vests are the property of the Hayward Police Department. Bunch testified he was told by HPD Lt. Darin Nishimoto the vests were paid for by tax-payers and belonged to the department. However, another HPD lieutenant called as a defense witness disputed that claim.

Lt. David Lundgren testified the tactical vest was not issued by the department and was bought by the detective and was therefore his property to give. Lundgren said the ballistic vest was an older model no longer worn by the SWAT team. He testified Taylor could have been allowed to keep the older vest. Lundgren also said it was not uncommon for vendors to give the vests away at conventions.

No purchase information on the vests could be found.

To prove the child endangerment charge the prosecution called district attorney’s office Investigator George Papadopoulos, who routinely looks into child welfare cases. He was brought into Abbey’s case to determine if the weapons in the home posed a danger to Abbey’s 6-year-old son and 21-month-old daughter.

The assault rifle was found between a mattress and a box spring in the master bedroom. Papadopoulos testified the mattress was too heavy for a child to lift, but that a child could slip a hand in between the mattress and box spring. Papadopoulos did not know if the assault rifle’s safety was on or off when found.

The .22-caliber handgun was found in a kitchen drawer and the shotgun was found under a couch cushion. Papadopoulos said a child’s toy figurine was found near the trigger. There was no round in the shotgun’s chamber, but four were in the tube.

A samurai sword also was found stuck in a flower pot on the floor.

The prosecution has called investigators to the stand who have testified they found evidence that Abbey was conducting personal and rental property business while on duty as a sheriff detective. One former co-worker estimated she spent half her work time doing other things. A search of her department issued vehicle turned up rental signs and paperwork. Investigators also testified Abbey used deputies to issue eviction notices without reimbursing the department. The district attorney’s office contends all these activities amount to embezzlement on Abbey’s part.

To counter this charge the defense called Abbey’s former supervisor Sgt. Larry Sikma. He testified Abbey routinely opted to take her overtime in the form of flex time instead of cash and that he never found her to be abusing her flex time.

When cross-examined by Harris, Sikma said he was unaware of Abbey’s rental property business for most of his supervisor assignment.

The preliminary hearing is expected to resume Monday with a ruling coming later in the week.

To contact Sabra Stafford, e-mail sstafford@turlockjournal.com or call 634-9141 ext. 2002.

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