Judge Finds Defendant ‘Barely Guilty’ in Prelim Hearing, Doubts Probable Cause – Still Sets Trial


By Lovepreet Dhinsa

SACRAMENTO – Judge Steven Acquisto had his doubts after a preliminary hearing last Thursday about how guilty defendant Nikolay Svistun might be, but he ruled “barely guilty” enough to bring the accused burglar to trial here in Sacramento County Superior Court.

Detective Carlos Romo testified the alleged victim saw someone try to break into his garage, and it was the second time this had happened, describing the suspect as a “white male adult.” The victim also said the suspects said they were locksmiths waiting for someone.

The items said to be stolen were two leaf-blowers from the garage, but nothing was taken from the residence.

The Ring cameras installed in the victim’s garage and outside the garage showed one male inside the garage and one waiting outside near a van.

Detective Romo described the male wearing a yellow beanie and dark clothing, with a goatee; however, the detective could not provide a description of the male standing near the van.

The second prosecution witness, Detective Melanie Edwards, took a statement from the victim, who described the male in the garage as a white male adult in a work jumpsuit, who was approximately six foot, three inches. The victim described the second male standing near the van as wearing a similar work jumpsuit and mentioned that they had Russian accents.

The victim had recorded the license plate of the van that the alleged burglars had. The next day, the detectives located this van parked in a business area, in a completely different part of town.

Upon arriving at the location of the van, the detectives found it to be unoccupied. However, they arrested defendant Svistun, who was in a separate vehicle parked in front of the van.

Later that day, the victim was called at the location where the van was found for a field show. The victim remained in the patrol vehicle and the defendant was standing 25 feet away from the car. The victim could not see the defendant clearly and the detective suggested moving him closer, now about 10 feet away. The victim stated that they thought that could be him.

The victim explained that the alleged burglar had a unique walking gait, after which the detective ordered the defendant to walk about eight feet. When asked to give a percent value of how certain the victim was, the victim now said about 80 percent certain it was him.

Many facts do not add up in this case, defense attorney Michelle Trigger argued, noting the identification did not match the description that the victim or both detectives had on file, yet the defendant was still arrested.

She pointed out the white male adult that the victim and detectives described had a goatee and was about six feet, three inches. The victim also described him wearing a yellow beanie with brown hair underneath.

However, the defendant is only five feet, 10 inches, has a full grown beard lining his entire lower face, and is bald. According to law enforcement, there is also no indication that the defendant had a specific gait or had a unique disability. The victim also never heard the defendant’s voice in the field show.

In response, Det. Edwards explained that she used a still photograph to perceive the height of the alleged burglar, adding “that the garage door was six or seven feet, and the person looked half a foot shorter than the door.”

The defense attorney noted that the detective was not sure whether the garage door was six feet or seven feet, in which itself discredits the point of reference because it can be one foot one way or the other.

Detective Edwards continued to state that she was confident, looking at the defendant, that he matched the height looking at a picture, and that he had the same average facial features.

When asked to describe the specific facial features that were unique to the alleged burglar, Edwards stated that he had a prominent nose and jawline, which she mentioned “was clear to [her] in the surveillance.” However, the defendant’s jawline is covered completely by his beard.

Defense counsel Trigger also noted that none of the clothing that was described in the alleged burglary was found in the possession of the defendant or in the van. The keys were also not found on the defendant’s person, nor was the van registered under the defendant’s name.

Trigger argued that Kushnir—the man with the defendant when he was arrested—matched the suspect description more than her client did, yet this was not taken into consideration. Kushnir not only matched the same height class but also matched the overall description.

When asked why Kushnir was not arrested, rather than the defendant, Det. Edwards remained silent until she said she was not sure.

Judge Steven Acquisto also questioned Edwards, and asked, “How does being near a van in a completely different part of town incriminate him [the defendant]?” Detective Edwards did not have a clear answer.

Judge Acquisto came to the conclusion that there may not have been enough evidence against the defendant for probable cause.

The judge also said he had concerns about the identification aspect of this investigation and that he “has to conclude that the detective’s identification is not great—it is suggestive.” He also stated that there could have been implicit pressure to identify the defendant because of proximity.

Deputy District Attorney Rainey Jacobson argued that even though nothing was stolen, an attempted burglary is a crime if there is an intent of doing so, and that the defendant should be held to answer.

Despite weighing all of the facts and suggesting that there was little or no probable cause, Judge Acquisto stated that the defendant was “just barely” guilty—the bar is very low in a prelim for a judge to find there should be a trial—and set a trial date  for March 22.

Lovepreet Dhinsa is a junior undergraduate student at the University of San Francisco, pursuing her bachelor’s degree in Politics with a minor in Legal Studies. She has a passion for criminal defense law, and strives to go to law school to fight for indigent clients. As such, she is also involved in her university’s mock trial program and student government.

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