Capobianco Murder Trial: Lead Detective Cross-Examined

The murder trial for Steven Capobianco resumed for a sixth day on Wednesday. July 6. Capobianco has been charged with the 2014 murder of Carly “Charli” Scott.

Lead investigator Sgt. Wendell Loo has been on the stand since day four and continued to testify for the prosecution on Wednesday.

After about ten minutes, the prosecution was finished and it was the defense team’s turn to question Sgt. Loo.

Defense Attorney John Apo (June 27, 2016). Photo by Wendy Osher.

Defense Attorney Jon Apo brought up the possibility of other suspects that Loo and other members of his department did not look into. The defense also pointed out what they called inconsistencies in Loo’s testimony.

The trial began with discussion of a DVD that recorded Sgt. Loo and Detective Nelson Hamilton driving with Capobianco to where the defendant said his car stalled near Ke‘anae. On the way, Capobianco had pointed out other areas, such as Twin Falls, where he stated he last saw Charli Scott, and Wailua Wayside Park, where he was picked up by the driver of a Toyota Corolla.

Sgt. Loo said he had watched the DVD on Tuesday morning, July 5, between 7 a.m. and 8:30 a.m. in Prosecutor Robert Rivera’s office before day five of the trial. When asked by Rivera if he watched the disc in it’s entirety, Loo said he did, but he fast-forwarded through a few parts.

When Apo asked Sgt. Loo if the audio remained on when fast-forwarding through sections of the DVD, Loo replied “no.”

Apo: “You told (the jury) you watched it in it’s entirety yesterday to confirm it’s accuracy correct?”

Loo: “Yes, sir.”

Apo: “And that accuracy included the conversations that took place right?”

Loo: “Yes, sir.”

Apo: “You would agree with me in these copies of the DVD if you fast-forward the audio goes off. So how is that you could have testified yesterday to its accuracy in its entirety, if you fast-forward and the audio wasn’t playing?”

Loo: “Okay.”

Apo: “Was that your answer?”

Loo: “I can’t answer that.”

Apo: “Probably because you made it up, right?”

Loo: “Made what up?”

Apo: “Your testimony yesterday that you reviewed it in its entirety.”

The prosecutors objected, stating the attorney was being “argumentative.”

Apo: “You’d agree with me that the accuracy of your testimony under oath is not a very important thing to you?”

Again, the prosecutors objected.

Cross-examination then began with a slew of objections by the prosecutors.

Apo: “Do you feel like its okay to change your answers under oath?”

Rivera objected. “This is argumentative.”

Apo: “Judge, can we approach?”

Judge Joseph Cardoza: “No, you’re not going to approach.”

Apo: “Judge, this goes directly towards credibility.”

Judge Cardoza: “Let’s move on.”

Apo: “So I can’t question about credibility?”

Rivera: “Objection.”

Sgt. Loo stated that he has been a police officer with Maui Police Department for 28 years and that he has testified in court on numerous occasions throughout his two decades in service.

Apo asked if in those two decades of testifying, Loo had developed a skill in communicating with the prosecutors while testifying, putting into question Loo’s credibility in the case.

When Apo asked Loo if he thinks it’s okay to change facts under oath, Loo replied, “If I misspoke or I need to clarify something, then it would be okay, I’m sorry I made a mistake or I erred.”

Apo asked Loo if on the morn ing of Feb. 12, 2014, he considered Capobianco to be a suspect in the developing investigation, to which Loo claimed he was not considered to be a suspect at the time.

Apo argues that Loo testified in front of a grand jury on July 11, 2014. Stating that while Capobianco did not have a defense team, Loo was under oath when Rivera asked Loo on Feb. 12, “Did you read [Capobianco] his constitutional rights, and you said yes and then he asked you, is that because you considered Capobianco a suspect at that time, your answer was, ‘yes sir.'”

Apo stated he told the grand jury back in July 2014 that in an interview with Capobianco held on Feb. 12, Loo did in fact consider Capobianco a suspect.

Apo stated that prosecutors have been leading Loo.

Apo asks Loo again if Capobianco was a suspect within a week into the investigation. Loo responded he was a person of interest. Apo added that nearly two weeks ago, at the end of June 2016, Loo testified under oath that it was approximately a week into the investigation that Capobianco was a suspect—different than what Loo had just testified in court yesterday.

Apo brought up that during the time Scott had gone missing, there was another adult female missing on Maui.

“When you were assigned the case on Feb. 11, that was the second missing female adult on Maui in that period, correct?” Apo asked.

“Yes, sir,” replied Loo, referring to Moreira “Mo” Monsalve, who was reported missing on Jan. 12, 2014.

Apo pointed to the fact that there were rumors of a serial killer on Maui during the time period of the case.

“During the time of your investigation, were there rumors of a serial killer on Maui?” Apo asked. Loo replied, “Yes.”

Loo was assigned primary investigator to the case on Feb. 11, 2014. Apo asked if Loo if there was another primary investigator relating to the case of Scott. Loo noted that Detective Nelson Hamilton took over maybe a month or a month-and-a-half into the investigation. Loo wasn’t the primary lead investigator throughout the case.

“Why were you no longer the lead investigator?” asked Apo.

“I wasn’t given a reason,” replied Loo.

Apo brought up that in Loo’s two decades as an officer, other missing women had been reported missing from Pā‘ia area to Ke‘anae. Laura Vogel went missing on Feb. 21, 2010, Apo pointed out.

Apo asked Loo what it means to be a primary investigator in a missing persons case.

“We try and get background information, see what, if any issues there are in the persons life, what their habits are, where they would go, if they have any mental issues or health issues—basically try and find out what’s going on and why someone goes missing,” Loo replied.

Apo pointed to the crime scene where Scott’s belongings were found. He asks Loo about the importance of having yellow tape up at a crime scene.

“Basically, it’s a line that says this is a crime scene and only certain authorized persons can enter this area, to keep out non-essential personnel so they don’t contaimnate the crime scene,” Loo replied.

Apo stated the importance of keeping people out of a crime scene, especially if there might be important DNA evidence within the area. Apo also mentioned that unbiased patrol officers within the yellow-taped area are even restricted to what they can touch.

Loo agreed and said, “We don’t want anyone to contaminate the crime scene—even patrol officers.”

Apo asked Loo about the “low cards principal,” which Apo defined as, “when two items come into contact, one is going to leave a trace on the other and vice-versa.”

Apo said, “Now talking about that principal, preserving the integrity of DNA evidence, who would be the last person you would want touching evidence at that crime scene?” Apo restated his question: “The whole purpose of the yellow tape is to prevent even patrol officers who are unbiased from contaminating evidence that you would certainly want those yellow tapes to prevent interested parties from gaining access to that evidence, right?”

Apo pointed out that a victim of a crime would be blaming somebody for something, and there was a yellow taped off area, that police wouldn’t want that person blaming someone for something going into the yellow taped off area and having access to the evidence.

Apo also pointed out that Loo had six months in the missing persons division of the CID, and that Loo was not trained during that time for a homicide investigation.

Loo replied that it was a missing person case when he was assigned, not a homicide investigation.

Apo brought up what he called Loo’s inconsistencies again, when he asked him how many missing persons cases he was a part of as a patrol officer.

Loo replied, “A couple dozen—24 of them approximately.”

Apo pointed out that when Rivera asked Loo, he said it was more like 36—closer to 40.

“How many missing persons cases have you participated in as a detective?” Apo asked.

“About six,” Loo replied.

“You told the jury the other day it was about a dozen,” Apo responded.

Apo then brought up the term “First 48.”

When Loo said he isn’t familiar with Apo’s context of the term, Apo asked about the importance of the first 48 hours in a missing persons case.

Loo said officers want to find a missing person within 48 hours to make sure they are all right, to get them back to their loved ones and help reunite them with their family.

“Finding the person in the first 48 would be nice, yes,” Loo stated.

Apo then began a breakdown of Loo’s first 48 hours into the case.

The missing person report was made on Feb. 10, 2014 at about 10 p.m., said Apo, and Loo was assigned the case the following day, Feb. 11 at about 9 a.m.

“Eleven hours had elapsed before you started cracking on this case as the primary investigator,” Apo stated.

Scott was last reported being seen at about 8 p.m on Feb. 9, 2014.

“So by Feb. 10 at about 8 p.m.—that would have been 24 hours of her missing, right?” Apo asked. “And Feb. 11 at about 8 p.m.—that would have been 48 hours of her been missing.”

Apo stated that some 60 hours had elapsed between the time Scott was last seen and Loo’s first interview with Capobianco on Feb. 12 around 8 a.m.

“Was this because by that time Steven was the sole target of your investigation?” Apo asked.

Loo said, “No.”

The defense broke it down in more detail, stating Loo received and reviewed a three-page report from a fellow officer on the case. The report informed Loo of Kimberlyn Scott’s (Charli’s mother) statement, of Capobianco’s statement to that officer and it gave a description of Scott’s vehicle. The report also included results of two other officers’ checks in the area of the Hāna side, which included a search of the Honomanū area at about 3 a.m. and a search from Kaumahina Park to Ke‘anae by those two officers.

Loo said it took 20 minutes or less to review the report and after that, he did a criminal background check on Capobianco, which took about 5 minutes.

After the background check, Loo contacted AT&T regarding Scott’s phone records. He stated he was multitasking while on the phone with AT&T, and started to make flyers of Scott while on the phone.

Loo couldn’t estimate how long he was on the phone, because it involved a lot of calling back and waiting, but he was still multitasking. He estimated about 45 minutes to do all of that, including having AT&T ping her phone and asking about data.

Apo pointed out that Loo is 65 minutes into his investigation so far.

He stated that Loo contacted the two officers that searched the Hāna area and made another call to Kimberlyn Scott—both calls took about 30 minutes.

While speaking on the phone with Kimberlyn, Loo said he tried to find info about Charli—issues in her life, mental health issues and other background on Charli.

However, Apo stated, the patrol officer already did that.

“You call Kim to duplicate what patrol already had done,” said Apo. “Officer Natividad already asked her those questions and his answers were already in report, so when you call Kim Scott back, wouldn’t you agree you are just doing what Natividad already had done?”

Loo said he was reiterating with Scott to make sure everything in the report was correct, and if he had concerns or needed more details, he could address them on the phone.

Loo stated the flyers took about 30 minutes, as did multitasking with the phone company.

Apo points out Loo is 110 minutes into his investigation.

Loo then said he sent a blast email to all districts to be on the look out for Scott, which took about 5 minutes. He emailed, printed and handed out flyers to commanders in the Wailuku police station and the dispatchers.

After a lunch recess, Apo noted that Loo went to the airport to distribute flyers as well.

Loo said it was a common practice. He did for all missing persons, because they don’t know the circumstances.

Apo asked if the patrol officers could have just gone to the airport and pass around flyers. Apo also asked if Loo was “talking story” with any retirees at the airport, to which Loo replied, “Yes.”

“It was more important to go deliver flyers to the airport than to make contact with Charli’s last known family members to have seen her?” Apo asked.

“No, sir,” Loo replied.

Loo put his time at the airport around an hour. He called the hospital next. Apo asked why he called the hospital when Officer Natividad already checked the hospitals. Loo was on the phone with the hospital for 5 to 10 minutes.

Loo said Kimberlyn Scott then contacted him on the phone and he spent approximately 15 to 20 minutes speaking with her.

Apo stated that it’s now been 125 minutes since distributing the flyers downstairs at the station and when adding the hospital and airport time it comes out to about 205 minutes of investigation to find Scott.

“In the first 48 hours, you spend a total of 205 minutes actively pursuing where Charli Scott is, while waiting to interview Steven Capobianco?” Apo asked.

Apo asked if Loo was waiting to interview anyone else involving the case. Loo said he wasn’t.

Apo started to ask Loo about the last known family members to have seen Charli Scott. Apo appeared to get frustrated. He had asked to approach the bench four times prior to asking this question and had been denied by Judge Cardoza.

“If these people had information on what she was last wearing, that would be important, right?” Apo asked.

Rivera: “Objection; speculation.”

Apo: “Speculation as to what a person was wearing?”

Apo: “I’m sorry, I can’t approach, so I don’t know what to do, judge. I’m sorry.”

Judge Cardoza: “What you do is you respond to objection. If you have a response, then don’t just stand there and talk to yourself, all right. Objection is overruled. You may answer the question.”

Apo asked Loo what are factors should be looked for at the beginning of a search.

He responded, “Mental issues, health issues, where they hang out, who they hang out with, where they wold go, what they drive, what they were wearing last.”

Apo asked, “Wouldn’t you agree with me, that’s kind of a ‘biggy’ when looking for missing person—what they were wearing last would be a good thing to ask?”

Loo said he didn’t talk to any other known witnesses that would provide information about what Charli was last seen wearing.

Capobianco was the next to be interviewed by Loo.

Loo contacted him sometime on Feb. 11 to arrange an interview; however, Capobianco said he was out searching for Charli but was willing to meet with Loo the next day. Loo said that was fine and scheduled to meet with him on Feb. 12.

“If you did have any genuine concern about Steven being involved in criminal wrong-doing, you were willing to wait—you were willing to wait until Feb. 12, right?” Apo asked.

Loo replied, “At this point, sir, there is no criminal case, I am investigating a missing person.”

Apo asked if Loo ran any criminal background checks other than the one on Capobianco for the case. Loo did not.

When he met with Capobianco, Loo said his intent was to get background information on his relationship with Scott, see why she would be missing and if there were any problems or any issues.

Apo: “Was it your intent to go into that interview and accuse him of threatening Charli, for example?”

Loo: “No, sir.”

Apo: “Was it your intent to interrogate him whether he did anything to Charli Scott?”

Loo: “No, sir.”

Apo: “Intent to ask him whether he had anybody else do anything to Charli?”

Loo: “No, sir, he wasn’t a suspect.”

Loo said he did not ask Capobianco any of those questions, but did ask him whether he did anything to Charli, whether he harmed her over the baby issue and whether he had anyone else do something to her.

Apo said those questions are accusatory.

Apo also mentioned that two of the most experienced members of the MPD and detectives at the time, when there wasn’t even a crime, were in the room to question Capobianco.

Apo: “That’s a little questionable in allocations of resources. Putting them both on a single missing persons case?”

Loo: “No.”

Apo: “So thats typical whenever a kid gets lost? The two most experienced detectives take the case?”

Loo: “It comes down to whoever is available and whoever lieutenant assigns.”

Apo said Loo observed injuries on Capobianco in the first interview held around 8:20 a.m. on Feb. 12, but Loo never asked questions or took photos of the injuries.

Loo does point out that Capobianco was cooperating in both interviews that day.

Apo tried to show that Loo believed Capobianco was his suspect during the first interviews on Feb. 12.

He recalled that Loo testified at a second grand jury and said that when one of the grand jurors asked Loo about Capobianco’s injuries and whether they raised any red flags to Loo.

Loo’s response, at the time was, “Suspicion, I’ve been doing this job for a while and I guess like the term everyone uses—spidey senses—something in the back of your head—back of your mind—that somethings not just right.”

Apo asked, “When the grand juror asks about those spidey senses, you said ‘suspicion.’ You were suspicious of Steven by the first interview?”

Loo replied that he was not.

When asked if anything else happened after the interview with Capobianco on the 12th, Loo said he was notified that they had found Charli’s vehicle at Pe‘ahi. He drove there around 6:30 p.m.

After a recess, Apo brought up the crime scene where some of Scott’s belongings were found.

“Some of the items were found by family members; some by police officers?” Apo asked.

After an objection. Apo switched to a Feb. 19 interview with a woman named Shelly. Loo said he received a phone call from Shelly in which she claimed that she saw Capobianco’s vehicle on the Road to Hāna. Loo said Shelly was not a witness in the case because “she contacted me. She had information to provide to me.”

Apo asked if Loo defines a witness by whether they call him or if he calls them. Apo said the woman had relevance. “So why wasn’t she a witness?”

“If Steven tells you a story about his car being stalled on Hāna Highway by the time your speaking with Shelly, you’re trying to discredit what Steven is telling you?” Apo asked.

Loo also met with Gensing Muler, a co-worker of Capobianco’s at Mana, on Feb. 21, 2014.

Loo said his next interview was with a woman named Ashley that took place on Feb. 24, 2014.

Apo asks Loo if he is still searching by Feb. 21 for Scott or if he is building a case against Capobianco.

“By that time, sir, we were looking at Steven, yes, sir,” Loo replied.

Apo: “As a sole suspect to a crime that has not been committed as of that time, right?”

Apo: “Was there a crime committed by then?”

Loo: “Yes, sir.”

Apo brings up Loo’s interview with Scott’s sister, Phaedra Wais, on Feb. 24 and that Kimberlyn Scott requested she sit in on the interview.

Loo stated neither woman was considered a suspect.

Apo stated that to insure integrity of a witness, the witness should be by themselves in an interview.

Apo: “Do you interview suspects together?”

Loo: “No, sir, you want to hear what that person has to say.”

Apo: “Like the yellow tape, you want to sequester a witness so that information doesn’t flow to one witness to another witness—what are you trying to prevent?

Apo: “When you bring two people in at the same time, you’ve already eliminated them as suspects, right?”

Loo: “It depends on the investigation.”

Apo: “If there is a suspect there and they’re allowed to be interviewed with another person that the integrity of the investigation has been compromised already, and there’s sharing of information between those two people?”

Loo: “If I have a suspect in a room, no, sir, I would not have another person present—so they cannot collaborate.”

Apo pointed out that Loo had spoken to Kimberlyn Scott several times before sitting in on the interview with her daughter Phaedra.

Apo said Loo next spoke with Brooke Scott, Charli’s sister, and then reinterviewed Kimberlyn Scott and followed up with an interview with Matthew McCormick.

The trial recessed for the day.