Capobianco Murder Trial Day 12: Attorneys Warned of Verbal Sparring

July 19, 2016, 4:17 AM HST · Updated July 20, 5:08 AM
Wendy Osher · 12 Comments
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Day 12 of proceedings in the Steven Capobianco murder trial became heated as attorneys argued with each other over lines of questioning and conduct in the courtroom.

Capobianco is accused of killing his pregnant ex-girlfriend, Charli Scott, who was 27-years-old and five months pregnant when she went missing in February of 2014.

Bickering and Badgering Allegations

Capobianco's defense attorney Jon Apo. Photo by Wendy Osher 7.13.16.

Capobianco’s defense attorney Jon Apo. Photo by Wendy Osher 7.13.16.

Maui Chief Judge Joseph Cardoza acknowledged that both attorneys are highly experienced and are under a lot of pressure, but scolded them for verbal spars, saying the jury does not need to deal with the added element.

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One particular line of questioning was cut short by gasps from the gallery, when defense attorney Jon Apo began to ask witness, Phaedra Wais about nipples.

The questioning focused on the alleged sexual connotations of Wais’ sister, Charli Scott’s, body piercings, but referenced Wais’ body instead of Scott’s.  Judge Cardoza interjected saying, “The question as framed is objectionable.”

Prosecuting attorney Robert Rivera. (6.27.16) Photo by Wendy Osher.

Prosecuting attorney Robert Rivera. (6.27.16) Photo by Wendy Osher.

Additional questions about a unicorn tattoo and its alleged sexual connotation were never answered as the judge sustained objections relating to scope, relevance and ambiguity.  Prosecuting attorney Robert Rivera argued that the questions were “speculative,” and “bordered on badgering” the witness.

Judge Cardoza further advised the defense that the line of questioning, went “beyond the scope,” of what was permissible.

When the prosecution had the opportunity to redirect questioning, Rivera sought clarification about a ‘ping’ spot mentioned in earlier testimony.  The defense raised objections arguing that the question, as asked, was “narrative,” prompting yet another argument, with Rivera exclaiming, “I’m talking to the court.  Council is being ridiculous, again.”

Apo, then stood up and said, “Your honor,  I’m going to object to council calling me a dummy as he’s walking by… I’m an adult male.  I don’t need to be insulted like that.”

Judge Cardoza advised both attorneys that such behavior would not be tolerated and told the defense to bring allegations to the court’s attention if he wanted corrective measures to be taken.  “If that happened, I didn’t hear it,” he said.

Why Was Evidence Removed From Scene?

Phaedra Wais, sister of Charli Scott. Photo 7.18.16 by Wendy Osher.

Phaedra Wais, sister of Charli Scott. Photo 7.18.16 by Wendy Osher.

Wais testified that the decision to take evidence found at Nuaʻailua Bay, was a group decision, but that she wasn’t really a part of the discussion.  “I was still upset about finding all of those things,” said Wais, of the items recovered, which included a DVD, a blanket and clothing that Wais recognized as belonging to her sister; as well as empty tape rolls, black pants and a hooded sweatshirt.

When asked why the items were taken to her mother’s house instead of left in place for police, Wais said, “There was no (cell) service and we didn’t know when we would end up getting service; and it was getting dark.  We didn’t know if the items would be washed away,” she said as some of the items were near or partially in a river.

Wais said she attempted to call her mom on the way back to her Haʻikū house, but lost connection.

She testified that at one point, her phone got service, but her phone “died” on the way to Haʻikū.

Different Kinds of Rotten: Foul Odor from Blanket and Dead Pig

During the search, two items were found that were described as different kinds of “rotten.”

“I smelled something dead like rotted flesh,” said Molly Wirth of a blanket found near the stream at Nuaʻailua or “Paraquats.”  Wirth had driven Wais and another individual, identified as Max, to the location on Feb. 13, 2014.

In addition to the items recovered, Wais indicated that Max went upstream to continue the search, “because we thought we had smelled something else.”

Wirth testified on Monday that she also went up the river and observed a dead pig near the bridge, about 300 feet upstream from where the blanket was found.

“It was rotten and sunken in,” she said, describing the pig as small, and approximately 20 to 24 inches long.  She described the odor coming from the pig as different from the smell coming from the blanket that was covered in maggots.  “There were two separate odors,” she said.

Search Utilizes Sweeping Technique

Molly Wirth, member of family organized search party. Photo 7.18.16 by Wendy Osher.

Molly Wirth, member of family organized search party. Photo 7.18.16 by Wendy Osher.

The search conducted on Feb. 13, 2014 included a “sweep” in which Wais, Wirth and the other searcher, Max, lined up about three meters apart and moved forward looking for evidence.

Wirth said she had used the technique in her previous job with the Maui Invasive Species Committee to search for invasive species.

During the search at Nuaʻailua, Wirth described the area as “a jungley mess,” with lots of Clidemia, ink berry and large kukui nut trees.

While the three couldn’t see each other, they were within ear shot of each other, said Wirth.  “You can cover more ground that way, but you’re close enough to know where they are,” she said.

She said she could hear Phaedra say ‘Oh my God,’ as Wais came upon a DVD. Wirth said Wais later explained the significance of it and said she recognized it as belonging to her sister, Charli Scott.  Within seconds of the DVD discovery, Wirth said she found a blue tank top with white polka dots on it, as well as a black skirt with at least one hole in it.

Handling of Evidence:

Photos of the items were taken at the scene before their removal and were handled,”carefully” according to Wirth with orange flagging tape tied to trees near where evidence was found.

Both Wais and Wirth testified that items recovered were placed in the back of Wirth’s truck right next to the tailgate.

Upon arrival at the house, Wirth said, “I think at that point I had more tunnel vision of where Kim (Kimberlyn Scott) was to explain that we had found her daughter’s clothes.”

Kimberlyn Scott cried as she heard what had been found, according to Wirth, whose attention was then captured by yelling coming from outside.

“I could hear Johnny (Charli’s step-father) yelling at somebody.  He was upset,” said Wirth, who described Johnny’s voice as loud, crackly and emotional.

She said she observed Max, the male individual who had been searching with them, walking backwards away from the clothes that were now lying in a pile on the ground.

Wais testified that upon arrival at the house, she had jumped out of Molly’s vehicle and went to console her older sister, Brooke who was in her own vehicle crying.

After a police report was made, Wais said she emailed police a picture of the DVD and the screen shot image of the ‘ping’ spot location that were saved to her phone.

She noted that the majority of photographs taken from the scene would have been on Max and Molly’s phones.

Help Sought from Multiple People in Identifying ‘Ping’ Spot

Wais testified that she had sought help from numerous people between February 10th and 13th to help figure out the location mapped out in a ‘ping’ of Charli Scott’s phone.

Among those who checked out the ‘ping’ image were Johnny (Charli Scott’s step father), Kimberlyn (Charli Scott’s mother) and various, “map people,” according to Wais.

She testified that she eventually came to recognize the area of Honomanū and the bend just past that Bay, but was unfamiliar with the name “Paraquats” or Nuaʻailua prior to viewing the initial ‘ping’ on Feb. 10, 2014.

When asked if she knew where the Keʻanae Peninsula was in relation to the area known as “Paraquats,” Wais said she did not know and noted that she, “mostly used Honomanū” as her point of reference.

Phaedra Wais, sister of Charli Scott. Photo 7.18.16 by Wendy Osher.

Phaedra Wais, sister of Charli Scott. Photo 7.18.16 by Wendy Osher.

Charli’s Financial Situation

On Feb. 14, 2014, Wais returned to the scene to meet with police who asked her about Charli’s dental records.

“I had only known about an orthodontist, not an actual dentist,” said Wais who said her sister was planning on getting braces from a Dr. Damerell.

During cross exam, the defense asked about Charli Scott’s ability to pay for braces, and Wais responded, saying that her sister was going to get a discount from the dental place.

During the line of questioning relating to Charli’s finances, Wais said, “I know she had enough to get by.”

Wais was also questioned about an individual, MJ, who allowed Scott stay at his residence on a coffee farm in Kula.  When asked if MJ was one of Charli’s ex-boyfriends, Wais responded saying, “No.” An objection to another question relating to MJ’s alleged pursuit of Charli, went unanswered due to a sustained objection.

“I know that he was letting her stay at the house; but I know that she was working and making her own money,” said Wais.

When asked about Scott’s belongings, Wais said, “She didn’t really have much to move.  Most of her items were at my room at the Haiʻkū house,” including a chair, couches and a filing cabinet.  “Anything big was at Haiʻkū house,” with the exception of Scott’s bed, Wais said, which “would have been in Kula.”

Phaedra Hears Voicemail from Defendant

Some time in late 2013, Phaedra testified to hearing a voicemail left on Charli Scott’s phone by the defendant.

Wais testified that Capobianco was coming to a conclusion in the voicemail that Scott was deciding to keep their baby.

While Wais described the defendant’s voice as “kind of irritated,” the defense objected to the characterization, and the description was stricken from the record.

“He (Capobianco) wanted to make sure that everything was going okay, going alright, like the way that they last left it,” said Wais.

Wais testified that she had talked about making plans to live with Charli Scott and the baby to help raise the child.

Charli was Tired Before she Went Missing:

While walking Charli Scott back to her vehicle on Feb. 9, 2014 at their sister Brooke’s residence, Wais testified that Charli was tired.

“She was happy.  We said goodbye.  It was like any other goodbye,” said Wais.  “She was tired.  I believe she was very happy–that (her happiness) I think, overruled that (her tiredness) in a way.”

Wais noted that Scott had worked at the Hui Noʻeau that day and had done haircuts as well.  “She was definitely tired,” said Wais.

Trial resumes on Tuesday, July 19, 2016, with continued testimony from Molly Wirth.

Wendy Osher
Wendy Osher leads the Maui Now news team. She is also the news voice of parent company, Pacific Media Group, having served nearly 20 years as News Director for the company’s six Maui radio stations.

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