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Capobianco Trial: Cross Exam of Evidence Specialist, Trial Takes 2 Week Break

October 6, 2016, 8:46 AM HST · Updated October 6, 8:46 AM
Wendy Osher · 1 Comment
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The ongoing murder trial for Steven Capobianco is scheduled for a two week break due to juror schedules.  The trial on Tuesday included testimony from an evidence custodian with the Honolulu Police Department’s Scientific Investigation Section and a supervisor with the HPD Forensic Laboratory. (*Details from their testimony will be posted later this week.)

Maui Police Department evidence specialist Anthony Earls returned to the stand several times last week with questioning focused on the police processing of evidence in the case.

Anthony Earls, evidence specialist with the Maui Police Department. Photo by Wendy Osher.

Anthony Earls, evidence specialist with the Maui Police Department. Photo by Wendy Osher.

Collection of Maggots:

In earlier testimony, a forensic entomologist answered questions about the recovery of maggots from Nuaʻailua Bay, and provided an estimate on the possible time of death.  Defense attorney Jon Apo questioned Earls about the collection of maggots that were entered into evidence.

“In terms of your testimony regarding the two urine samples and whether you had any information, data or any laws relative to their storage up to the point when you got them, would you have the same answers relative to the remaining seven canisters as you did with those two canisters,” Apo asked.

Earls responded saying he could “only attest from where” he recovered the seven canisters that he personally collected.  The other two canisters were collected and turned over from Officer (Christina) Bonacorsi.

Apo continued questioning saying, “Let me break it down just a little bit. In terms of at least one of those that you made, was from maggots that were on top of, for example, the blanket, right?  Can you testify as to the storage conditions of that green blanket in terms of, say, the temperature in Celsius of the environment that it was kept in up to the point in time when you got it.”

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Earls responded saying,  “Before I received it, no, I cannot.”

Apo followed up saying, “I take it, that would be true on all the other remaining items that you retrieved maggots from as well?” and Earls responded saying, “Yes sir.”

All of the maggots were ultimately sent to Dr. Lee Goff, a forensic entomologist who examined nine containers containing insect specimens that he received from the Maui Police Department as part of the homicide investigation involving the death of Charli Scott, who was 27-years-old and five months pregnant with an unborn child fathered by the defendant.

Change in Preservative:

Questions on cross-exam by Apo focused on the chain of custody and police handling of evidence.  He inquired, “Relative to those other seven canisters, can we be clear that your testimony was that you did not change the preservative relative to those until some three months later?”

Earls agreed saying, “The initial preservative was used–the same that we use in the morgue–and that is the 10% Formalin. And (on) approximately May the 23rd (2014) is when I changed that to isopropyl alcohol, which is rubbing alcohol.”

Earls noted that the initial preservative was used upon recovery, “so if I recall correctly, it was the 15th in the afternoon or evening (of Feb. 2014).”

Apo sought further clarification asking, “So actually, over three months that it was in that initial preservative before being put into the proper preservative, is that accurate?”  Earls responded, “Yes, as well as (being) refrigerated.”

When asked how he came to realize that “there was a more proper preservative to put it in,” Earls said he was informed of the suggested change by Dr. Goff.

“So I take it, that would have been about the time that you were packaging it to send to him,” Apo asked, and Earls responded saying, “Correct.”

Preferred Procedure for Shipping Items:

Apo’s questioning turned to the preferred procedure for sending items for testing via FedEx.

“So again, typically we prefer to accept the items back from the evidence storage, package them up at the end of the week, and then send them out near the beginning of the week, so that they will hopefully avoid a weekend being stuck in the FedEx shipping facility over in Honolulu,” Earls explained.

Apo then asked,  “If you were to send it on a Saturday, what’s anticipated in terms of the receipt date?”

Earls responded, “If you send it on a Saturday, it depends on when on Saturday because there’s a certain cut off time at FedEx.  If you get there before then, theoretically it will get there on Saturday afternoon, but if its after that time of day on Saturday, it’s not going to get there until going out on Monday.”

After a line of questioning to determine the day of week that the shipping occurred, Earls testified that the package was dropped off at FedEx on Friday, May 23, 2014 at 9:26 a.m.

Defense Inquiry into “Blind Analysis”

Apo then questioned Earls about the type of analysist that was conducted on the maggots.  “Relative to Dr. Goff’s analysis on those maggots, are you aware of whether that was a blind analysis on his part, or whether he needed additional information from you for his analysis?” Prosecuting attorney Robert Rivera raised an objection, arguing that the question was vague, and Judge Joseph Cardoza sustained the objection.

Apo attempted to refine his question by asking, “In the ways that a person can analyze things, can we agree that one way to do it is a blind analysis where you’re just focused on your test without any outside information? Would that be accurate to say in terms of one way to do it?” That question also drew an objection for being vague and ambiguous, beyond the scope and speculation, which was sustained.

Email Request for More Information:

“At some point after you sent those maggot samples to Dr. Goff, did Dr. Goff request more information from you,” Apo asked.  Earls responded saying, “Not from me specifically.  I think the detective who was in communication about further information.”

Apo inquired, “And that would have been Detective Hamilton?”  Earls responded saying, “I think so, yes.”

After a sustained objection on hearsay Apo argued that the questioning was foundational saying, “I think this plays off of what he just said because it’s a joint email… Dr. Goff inquired for more information from Detective Hamilton, but Detective Hamilton forwarded the email to you (Earls) to give Dr. Goff more information, is that accurate?”

Earls responded before an objection was raised by the prosecution and said, “I may have been copied on an email.”

Apo: “Did you have to give more information to Dr. Goff on his request?”  Earls responded, “I did not, no.”

Apo then asked, “What you just refreshed your recollection on was an email that was sent from Dr. Goff to Detective Hamilton, right.” Earls agreed. Apo continued, “That was also ultimately sent to you, right? And what ultimately resulted in that was that Detective Hamilton put in a bunch of information in that email, right?”  Rivera raised an objection to the question, which was sustained.

“Ultimately, you sent the email back to Dr. Goff, right,” Apo asked.  Earls said, “I don’t recall exactly.”

Apo then asked, “Would it be accurate to say that you sent Dr. Goff an email with additional information on the circumstances,” but the prosecution raised another objection on hearsay, which was sustained.

Feb. 14, 2014: Processing of Scott’s Burned Vehicle

Apo turned his questioning to the police processing of Scott’s burned 4Runner.  “Would it be fair to say that you started off that day processing the burned vehicle over at the Kīhei station?”  Earls responded saying, “Yes.”

“And then at some point you ended up, and this is still in the morning hours, over at Charli’s residence at 10 Ahuwale Place, is that accurate?”

Earls clarified that “It was actually around noon,” and both agreed that it was around 11:48 a.m.

Apo asked,  “And present with you were detective Loo, the landlord and Kimberlyn Scott, is that accurate?”  Earls responded, “Correct.”

When asked if there was anybody else present, Earls said he could not recall.

Digital Photography Eliminates Developing of Film and Delays:

Apo: “Now, before I go further, you took photographs at that residence, right?”

Earls: “Yes, I did.”

Apo: “And you testified about a lot of other photographs that you’ve taken in the course of this case, right?”

Earls: “Yes sir.”

Apo: “Relative to this photographic evidence, would it be accurate to say that you at this point in the game, you’re dealing with digital photography?”

Earls: “Yes sir.”

Apo: “Could you give us a short description I guess of your training and experience relative to the processing, well I guess regarding photography and the processing of digital photography and imaging, what training experience do you have relative to that?”

Earls: “Okay, I guess I need (you/Apo) to clarify the question.  I don’t understand (what you mean by) the processing of digital…

Prosecuting attorney Rivera raised an objection arguing the question was vague and ambiguous, and his argument was sustained.

Apo: “I tried to keep it vague because I don’t really know much about it.  But I guess what I’m referring to is how do you get the pictures ultimately from the photos that you take? And what training and experience do you have with doing that? It used to be called developing the photos, right?”

Earls: “Yes sir.”

Apo: “I guess I’m asking what training and experience you have in that part of things as well. Photography and what used to be development.”

Earls: “I have had training in digital photography and of course crime scene investigation photography. But the great thing about digital photography is it now eliminates the whole developing of film and the delays.  Everything is instantaneous.  You can look at the back of the camera and you can see the image upon which you have gathered with the digital camera.  Again, photography is just the documentation of amounts of light. And it’s taking/capturing that image.”

Apo: “Well there are a couple of… well at least one for example, significant difference between digital photography and the old type of photography would be something like the existence of metadata, right?”

Earls: “Yes sir.”

Apo: “Can you describe what metadata is for the jury.”

Earls: “And again, I’m not a highly scientific person dealing with the actual photography, electronic stuff, but I can tell you that each digital image has associated with it the information that the camera was set on while you were taking that photograph.  So, even your cell phones that you have nowadays, smartphones, and they have nice cameras on them, it will even nowadays you’ll even show you a GPS with a coordinate of where you were when you took that photograph.  That’s called metadata, and you have to access that with a computer.”

Apo: “But it’s possible, right?”

Earls: “Yes, it is.”

Apo: “And not only possible, it’s–I mean, it’s there to be done, right? On any given camera like you talked about, even a cell phone?”

Earls: “Yes.”

Although Earls answered the question, Rivera raised an objection saying it was beyond the base of knowledge.  His objection was sustained and a motion to strike the answer was granted.

Photos at Scott’s Residence: Laundry Basket, Underwear, Knit Glove

Apo began questioning focused on several photographs that Earls took at Charli’s residence on Feb. 14, 2014, and entered some of the images into evidence.

Apo questioned Earls about photos taken of a laundry basket in a bedroom closet at Scott’s home.

“When you folks were there, did anybody go through that laundry basket–any of the detectives or yourself–to discern the items in that laundry basket,” Apo asked.  Earls responded saying, “I don’t recall.”

“On the bottom of that laundry basket can you discern a polka dotted clothing item,” Apo asked.

Earls replied, “It looks like, yes. In the near center of the image it looks like near the bottom there’s a blue something another with some white dots.”

“When you folks were there, was anybody stopping you folks from moving anything and checking things out,” Apo asked.  Earls responded saying, “No. I don’t recall that.”

Apo inquired about what appeared to be jeans in the basket and asked, “At any point did anybody make any closer observations about those jeans, for example what size those jeans are whether they’re men’s or women’s?”

Earls responded saying, “I don’t recall, unless I recover the item itself then I wouldn’t have recalled that.”

Apo : “Did you see anybody like the detectives going through that laundry basket?”

Earls : “There were numerous laundry baskets in the residence, so I really don’t recall which ones who went through.”

Apo : “You also testified, I think, on Direct that there were soiled underwear or women’s underwear recovered from Charli’s residence is that accurate?”

Earls : “Yes.  In the bath, are you talking about?”

Apo : “Well let me ask you, how many pairs or how many underwear are we talking about.  If more than one… or just one, I don’t know?”

Earls : “The one that I’m recalling now is the one that was in the bottom of the stand up shower.”

Apo also asked about the location of the shower and Earls explained that it was a separate structure.

“You actually have to go out of Charli’s place to go into that bathroom area right,” Apo asked.

Earls responded, “Yes sir,” noting that the item was taken into custody and turned over to the evidence custodian after proper drying and packaging. Earls said he finished photographs at the residence at around 12:38 p.m. on Feb. 14, 2014.

Apo then asked, “Would it be accurate to say that about two minutes later you were presented with a knit glove of as evidence?”

Earls responded saying, “I did document that I recovered from searcher Jacob Evans a knit glove.”  He explained, “I would have I don’t recall exactly but I’m sure I packaged it if it wasn’t already packaged separately and then placed it into my secure vehicle.  Then we got called to go out to Nua’ailua bay, so I would have not delivered it to the evidence processing lab until later that evening.”

Earls said that, “On March 23rd it looks like I processed the glove… after photographing that glove I actually took some samples of some stains as well as like the wristband of the glove with some sterile swabs and some sterile water I also recovered some hair like items from the exterior of the glove using some tape lift methods that I talked about earlier.”

According to Earls, the presumptive testing was conducted on the glove and it was submitted into evidence.  He said there was no additional testing done on the item when asked if it was sent out for DNA testing.

Red Towel, Blue Long-sleeve Shirt, Black/Grey Jacket

Apo : “And then it would have been a couple hours later, did you have occasion to observe other items related to this case being dried in the drying cabinets, and in particular a red towel a blue long-sleeve shirt and a black grey jacket and if you can’t recall I can refresh your recollection.”0

Earls : “Yes I did.”

Apo: “And those are items that were associated with this investigation is that accurate?”

An objection to the question was sustained based on speculation.

Apo : “You have those items noted in your report relative to this investigation is that accurate?”

Earls : “Yes. They are noted.”

Apo : “It’s not from some other case right?”

Earls : “Correct.”

Apo : “Now can you tell us what happened with those items what did you do with those items?”

Earls : “I basically remove them from the drying cabinets and packaged them for storage.”

Apo : “Are any tests done on them–this red towel, blue long-sleeve shirt or black-grey jacket?”

Earls : “No. There were not, by me at least. No.”

Apo: “Whose decision was it not to do any testing on them?  Was it your decision?”

Earls : “No. I received my assignments from the lead investigator.”

Apo : “In this case, who would that have been from?”

Earls : “That would have been Detective (Wendell) Loo.”

Apo : “So if a decision was made to not test these items, that would have been detective Loo’s decision?”

Earls : “Yes.”

Apo : “And then would it be accurate to say that about 3 o’clock, soon thereafter, you make it out to the Nua’ailua Bay area?”

Earls : “Yes sir.”

Apo : “And that’s where you testified that you recovered a number of items including the jawbone pieces?”

Earls : “Yes. We’re talking about the 14th, Correct?”

Apo : “Right.  And you were done with that assignment by 5:11 p.m. is that accurate?”

Earls : “Sounds about right. Yes.”

Black Bra: Holes Roundish vs. Tear-ish

Apo: “After that jawbone piece that you testified (about) first, the next substantive thing that you talked about was the black bra. Does that sound about right?”

Earls: “From the 14th, yes.”

Apo: “You testified and you showed a lot of pictures relative to tears in the bra does that sound fair Does that sound right?”

Earls: “Images were shown.”

Apo: “Now would it be fair to say that there were at least a couple of defects in that bra that were as close to being round holes as they were to being tears?”

Earls : “(There) appear(s) to be several.”

Apo: “Based on your training and experience, what are round holes in fabric consistent with, in terms of causes of injury or causes of damage?”

Prosecutor Rivera raised an objection saying the question called for speculation and said there was lack of foundation. The objection was sustained.

Apo: “Let me ask you, when you testified on direct and showed the tears in the bra or any of the pictures, were there any pictures presented to this jury showing the more round of holes that you just acknowledged?”

Rivera raised another objection saying the quesiton was vague.  Judge Cardoza sustained the objection and asked the defense to rephrase the quesiton.

Apo: “Didn’t we just establish that there were at least a couple defects in a bra that were more roundish than tears?”

Earls: “Yes, as I demonstrated for the jury. Yes.”

Apo: “I’m sorry, you demonstrated for the jury in terms of roundish ones?”

Earls: “All the holes. I went through them with the gloved hands and made sure there was a clear understanding.”

Apo: “So in terms of your intent in doing that, part of your intent was to show the jury that there were in fact more roundish holes than tear-ish holes?”

Rivera raised another objection saying the question was argumentative and the objection was sustained.

Coca-Cola Can Swabbed at Jaws

Apo: “Backtrack to February 12th (2014) if I may, would it be fair to say that at some point you were over at the Jaws area?”

Earls: “Yes, in the evening.”

Apo: “And you testified about the license plate that you recovered from there right?”

Earls: “Yes sir.”

Apo: “Did you testify about the Coca-Cola can?”

Earls: “I don’t recall, but I remember there was one there.”

Apo: “Okay, let me ask you about that. Did you recover any can?”

Earls: “Yes. I did.”

Apo: “Where was that recovered from?”

Earls: “In my report I have all the details about the exact location but it was near the general scene.”

Apo: “Would you agree with me that more accurately it was near the burnt vehicle?”

Earls: “Yes.”

Apo: “Would it be accurate to say that at some point you took swab samples from the lip area of that Coca-Cola can?”

Earls: “Yes, I did.”

Apo: “What else did you do?”

Earls: “I checked the exterior of the can for the presence of any fingerprints.”

Apo: “What did you do with the swab samples that you took of that Coca-Cola can?”

Earls: “Those swabs were submitted as evidence.”

Apo: “And when you say submitted as evidence, was it ultimately sent for any kind of testing?”

Earls: “I don’t think it was. No.”

Apo: “Well let me ask you, what was the intent for taking swab samples if the swab samples aren’t going to be tested?”

Earls: “Well we always try to gather as much evidence as possible not knowing if it’s going to ever be analyzed.”

Apo: “So this swab sample to your knowledge was not analyzed?”

Earls: “Correct.”

Apo: “And whose choice was that?”

Earls: “The lead Detective.”

Apo: “Now what did you do with the tape lift relative to that Coca-Cola can?”

Earls: “I submitted that to the fingerprint file.”

Apo: “And what was done with that, do you know?”

Earls: “I’m assuming that the fingerprint examiner inspected that.”

Apo: “That’s an assumption that you don’t know though?”

Earls: “Correct.”

Tire Impressions:

Apo: “Would it be accurate to say that while you are out there at the Jaws area you took some Tire impressions?”

Earls: “Only photographs.”

Apo: “But part of that photograph would it be accurate to say…  well you took photographs but you also took some measurements of those tire tracks, would that be accurate?”

Earls: “Several of them because there were quite a few.”

Apo: “You went so far as to use a laser measurement tool to do that right?”

Earls: “Yes.”

Apo: “Now let me ask you this, what did you do with that data relative to the measurements and or photographs of the tire impressions?”

Earls: “It’s clearly documented in my report.”

Apo: “OK, like for example, the photograph of the tire impressions–was anything done with that for investigative purposes?”

Earls: “Not that I know of.”

White Rubbish Bags Moving From Maggot Activity:

Apo: “Would it be accurate to say that over at the Jaws area, there were also, you also I guess observed and inspected some white rubbish bags as well as contents therein?”

Earls: “Yes.”

Apo: “And what was discovered in there?”

Earls: “The detective, if I recall correctly, who opened that, well…”

Apo: “Without going any further, did you observe that?”

Earls: “Yes.”

Apo: “Describe that.”

Earls: “It was a small white rubbish bag right on the edge of the sugarcane field with a clearing where the vehicles were, and of course the bag looked like it was moving.  So there was a lot of maggot activity inside the bag, so the detective opened it up.  If I recall correctly, it was Detective Bennett. And Detective Bennett opened it, and inside–because we had to see what was in there–and so inside was hooves and parts of animals.”

Wendy Osher
Wendy Osher leads the Maui Now news team. She is also the news voice of parent company, Pacific Media Group, having served more than 15 years as News Director for the company’s six Maui radio stations.

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