A Bisbee man charged in July with aggravated assault has lost a pre-trial motion about whether he was improperly indicted, even though the prosecutor admitted the grand jury never heard about a key eyewitness and that the Cochise County Attorney’s Office didn’t receive the witness’s statement from the Bisbee Police Department for five months.
Jon K. Sky is charged with intentionally committing assault with a deadly weapon or deadly instrument for driving his large work truck at Toni Cole on July 4. Cole was a parking lot attendant who placed herself in front of Sky’s truck after it had knocked over some traffic cones which mark the lot’s boundaries.
Sky, 40, was indicted by a county grand jury in September based on testimony from a lone witness, Bisbee Officer Lonnie Loper-Carbajal. In November, defense attorney Rafael Malanga filed a motion challenging the grand jury process after questions were raised about the officer’s testimony.
The defense’s main complaint was Loper-Carbajal’s failure to disclose that Sky’s co-worker Timothy Kenny was a passenger in the truck and that Kenny spoke with police at the scene. The official incident reports filed by Loper-Carbajal and Officer Jacob Amos soon after the event also failed to mention there was a passenger in the truck and that Kenny’s comments contradicted some of Cole’s statements.
In response to the defense motion, Deputy County Attorney Michael Powell conceded he knew nothing about Kenny when making the grand jury presentation in September. The prosecutor also admitted Bisbee PD didn’t disclose Kenny’s written statement until mid-December.
However, Powell objected to a new grand jury determination, arguing the defense failed to show how Loper-Carjabal’s grand jury testimony “actually damaged and prejudiced (Sky’s) case.” He also argued that witness credibility and disputes of facts are matters to be addressed at trial.
Judge Timothy Dickerson agreed with Powell, ruling last month that Sky’s concerns did not necessitate going back to the grand jury for a new probable cause finding. The judge ordered the parties to appear for a Feb. 18 pre-trial conference at which time a trial date may be announced.
At trial Malanga can also question both officers under oath about the omission of Kenny from their reports. Until then Sky is out of custody on a $5,000 bond.
Court records show Sky drove his truck into a driveway that serves as ingress for both a Washington Federal ATM and the parking lot where Cole works. When Sky finished at the ATM he got back into the truck to leave.
That is when the recounting of the July 4 incident diverges.
According to Loper-Carbajal’s incident report, Cole told the officer Sky “took out all the parking cones” when he started to drive away. The officer also noted Cole said she got in front of the truck “to stop him” but that Sky proceeded “to nudge her with his truck and continued to push her backwards.”
Meanwhile, Amos noted in his report that Cole described Sky’s truck as “barreling” through the lot, the same description Loper-Carbajal used with the grand jury in September. The grand jury was also told Sky used the truck to force Cole back “10 to 20 feet.”
On July 24, Loper-Carbajal added a three-sentence update to his report, noting that Washington Federal provided ATM video which captured Sky’s truck running over some traffic cones before pushing Cole “throughout the parking lot.” But the officer does not mention the fact the video also shows Cole walking in front of the large truck.
Neither Powell nor Loper-Carbajal mentioned the ATM video to the grand jury in September. That is an important issue, Malanga argued, because the aggravated assault statute requires proof that Sky knowingly used his truck as a weapon to touch Cole with the intent “to injure, insult, or provoke.”