Capobianco Trial: Defense Rests, Forensic Anthropologist Testifies as Rebuttal Witness

November 23, 2016, 3:35 PM HST · Updated November 27, 6:22 PM
Wendy Osher · 11 Comments
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Steven Capobianco (6.29.16) Photo by Wendy Osher.

Steven Capobianco (6.29.16) Photo by Wendy Osher.

The defense has rested its case in the ongoing murder trial of Steven Capobianco, who is accused of killing his pregnant ex-girlfriend Carly “Charli” Scott and setting her vehicle on fire in February of 2014.  He has pleaded not guilty to the charges.

On Tuesday, the trial entered into the rebuttal stage where the prosecution is calling rebuttal witnesses to the stand in response to testimony presented by the defense.  Maui Chief Judge Joseph Cardoza noted that the conclusion of the prosecution and defense cases indicates that the court is “quickly approaching the end of the evidentiary portion of the trial.”

The state of Hawaiʻi filed a motion on Tuesday, seeking to admit DNA results to rebut the testimony of Dr. Michael Laufer who testified as a defense witness during the trial.

The state argued that the defense opened the door to the introduction of the (Sorenson and FBI) DNA evidence, claiming that the testimony allowed the defense to put the state at an “unfair disadvantage.” The state claimed that, the defense, having elicited testimony in the form of a medical expert opinion that the blue jeans were worn by a woman not a man, if un-contradicted, “would allow the defense to perpetrate a fraud upon the court and mislead.”

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Judge Cardoza said that, “In the court’s view these questions and answers do not open the door to the DNA evidence.

The prosecution was allowed to rebut testimony relating to marks left on the jawbone recovered at Nuaʻailua in East Maui, by calling board certified forensic anthropologist, Nicholas Passalacqua to the stand.

Nicholas Passalacqua, rebuttal witness for the prosecution, is an assistant professor and forensic anthropology coordinator at Western Carolina University. He also worked as a forensic anthropologist at the Department of Defense POW/MIA forensic anthropology laboratory on Oʻahu.; and is a board certified Forensic Anthropologist.

Jawbone Fracture to Right Mandible: “Classic Peri-Mortem Blunt Force”

Forensic anthropologist, Dr. Rebecca Taylor performed a case analysis that was referenced in court. During her testimony, she had spoken of the amount of force required for the fracture to have occurred on the jawbone that was recovered.

When asked if a fracture to the jaw could have been caused by a punch, defense witness Dr. Laufer responded saying, “Certainly not from the side, and highly unlikely from the front without causing other fractures at the same time.”

When Passalacqua was asked for his opinion, he responded saying, it is “clear that force is moving from right to left.” He called the area a “classic peri-mortem blunt force fracture.” He explained that peri-mortem meant at or around the time of death and blunt force fracture was in reference to “something that was moving fairly slow, in comparison to a gunshot, which is really fast.”

“We look at where tension and compression are occurring in this fracture, and what we do is we look at how the bone would be bending and then failing, and so it’s pretty clear that what happened is that you have a force moving from right to left, and the bone would be bending and failing from that directional force,” said Passalacqua.  “We’re seeing compression here, and it’s telling us that the force is hitting here, and you’re having tension failing on the inner part of the mandible and compression on the outer part of the mandible.”

Fracture at middle portion of mandible:

When asked about another fracture, this one appearing at the middle portion of the mandible, that split the right from the left side, Passalacqua said, “This is also peri-mortum blunt force fracture.  But as to whether or not it was the same impact or different impacts, I can’t say.”

“It could happen from either side. If you think of the mandible as kind of this horse shoe shaped unit, if you’re pressing it on one side, all that force is going to get channeled into the middle part of the mandible where that fracture is, so it’s a really common place for the mandible to fracture–getting impacted from either side,” he said.

“It definitely could be from a single impact, I just can’t say if it is or if it’s multiple impacts,” said Passalacqua.  Prosecuting attorney Robert Rivera asked, “Is that to a reasonable degree of forensic anthropological certainty,” and Passalacqua replied saying, “Yes, sir.”

Knife Marks vs Incisors: Classic, Characteristic “V-Shaped Cuts”

Passalacqua also pointed out four lines in the jawbone, describing them as “cut marks,” and saying they are, “all really indicative of pretty classic sharp force trauma.”  This contradicts what defense witness Dr. Laufer said when he said the lines were caused by the incisors of a four legged animal, possibly a wild boar.

Passalacqua explained further saying, “Typically for us, the easiest way to tell whether something is sharp force trauma or not is by the shape of the defect that we’re looking at within bone.  So when we’re talking about sharp force trauma, usually from knives, we’re talking about something that has a beveled edge… That beveling creates that really classic characteristic v-shape that you’ll see in cut marks specifically caused by knives.  Those knife marks are usually very thin, v-shaped cuts.”

When asked if there’s any indication of animal or carnivore activity, Passalacqua said, “I don’t observe any evidence of any carnivore damage to this mandible.  Typically, we think about the difference between a tooth mark versus a knife cut.  With these knife cuts, they are very thin narrow (inaudible), because the knife edge is so thin, sharp and beveled, whereas a tooth, even though you might think of teeth as fairly sharp, when you actually look at a tooth, they’re not nearly as sharp as a knife.  They’re never going to compare to a knife. And so tooth marks are typically very shallow and u-shaped in comparison to knife marks,” said Passalacqua.

Shaved Bone: Striations Likely from Serrated Knife

The prosecution also focused on another area of the mandible which was described by a defense witness a naturally occurring area where muscle attaches.  Passalacqua offered a different description of what he observed saying, “This is a cut from a knife. It’s kind of unclear as to which way the knife was traveling, but essentially what’s happening is it’s coming in at an angle and it’s just kind of shaving off the cortical bone.  And so what it’s doing is it’s leaving behind striations from the knife blade.”

Prosecuting attorney Robert Rivera asked Passalacqua, “When you remove flesh from bone, does bone come off with the flesh?”  Passalacqua responded saying, “No… If you were going to pull it off, you think about the flesh ripping off from bone or any part of the body, the flesh is going to rip and come off because the flesh is weaker than the bone.  And so the only time you would have–like you would pull tissue and have bone come off with it, is if the bone itself was weaker than the tissue and it broke instead of the soft tissue being pulled off.”

Passalacqua said the bone in this area of the mandible should not be weaker than the flesh, and you would not expect bone to come off with the flesh if flesh is being removed.

Rivera then asked if you would expect to see bone removed, “if flesh were being scraped by a serrated edge,” and Passalacqua responded saying, “If the blade is touching the bone, you would expect it to leave a mark on the bone… If it was coming in really angular like this, and it was in this case–assuming that’s what this is, right–it would be cutting into the bone more, you’d get some of the bone being shaved off and you’re going to have some of these lines and striations and stuff from a blade.”

Rivera followed up asking, “What would cause striations to the bone or to the mandible that we are looking at?”

Passalacqua responded saying, “When you think about a knife and a knife cutting a piece of bone, or anything in particular, the way that we can tell weather or not the knife had serrations in it or if it was a straight edge knife, is if the knife cut leaves a pattern behind.  So anytime you cut something with a knife, it’s going to leave striations in the material.  But if the striations are a pattern, it’s going to indicate that there’s a pattern to that blade, so it’s likely to be serrated.”

Passalacqua pointed to a photo of the jawbone and said, “they appear to be evenly spaced striations, which indicate that it’s a pattern, which means it’s very likely to be a serrated knife.”

Rivera followed up by asking, “As a forensic anthropologist, would a carnivore or an animal’s tooth leave this pattern that you see here?”  Passalacqua said, “A carnivore’s tooth would not.  Again because we think of a carnivore’s teeth–they usually come down into points, and so they’re not going to leave these striated points from a single larger pointed tooth.”

Passalacqua said the injury is “consistent with a serrated knife.” On that area of the mandible, Rivera asked if it’s an area of naturally occurring divot in the bone.  Passalacqua replied saying, “No… Not in this region.  Usually the way that this part of the mandible works–what happens is, this is called the ramus and the ramus comes down, and its kind of a reinforced area of bone. What it does is actually kind of come out smoothly to the rest of the jaw–same thing with the other side–and so you don’t have any big naturally occurring divots unless there’s some type of bony abnormality,” which he said he did not observe.

Parallel Nature Secondary to Characteristic of Cuts:

Much of the defense line of questioning focused around the parallel nature of lines observed on the right mandible.

When the prosecution pursued further explanation, Passalacqua said, “What I was most concerned about was the determination of whether or not this is sharp trauma, or is this carnivore activity. Is the shape of the cuts themselves and are they v-shaped or u-shaped.  The parallel nature of it is kind of secondary to the characteristics of the cut to begin with.”

The prosecution asked Passalacqua about pig scavaging on human remains and referenced a journal entry that was entered into evidence.  The scientific article, found in an edited volume, showed postmortem damage of pig tooth scoring on a human.

After doing a Google Scholar search of anthropological literature, Passalacqua said that the photo was the only published picture that he knows of that shows what pig scoring on bone looks like.

The judge declined to receive the actual picture into evidence but allowed the prosecution to ask Passalacqua how the pig scoring appeared.  He responded saying, “The thing that I found most important from that article is that it says, in comparison to more typical carnivore damage (typically referring to canine marks–scoring on bones, like a dog or wolf) that we see on bone, the scoring from pig teeth are shallower than even the normal carnivore teeth.”

When asked if the patterns of pig scoring are anything like that of a serrated knife blade, Passalacqua said, “No.”

When asked if he observed any crushing injury that would be associated with a carnivore or pigs. Passalacqua said, “I don’t see any crushing injuries in this exhibit, nor did we notice any puncture or crushing injuries on the mandible.”

“Because they’re so indicative of cut marks, we weren’t really concerned with–could they have been caused by these differently shaped teeth, because they’re not consistent with teeth marks.  They’re consistent with cut marks,” Passalacqua said.

“The space in between those marks–those cut marks–that’s essentially unmodified, normal cortical bone, so that’s not bone that’s been scraped down in between those marks,” said Passalacqua.  “The bone would be much more significantly modified between those marks if that was from flat incisors scraping across the bone surface.”

“The most important features to determine how something was caused is the features of those marks themselves,” said Passalacqua.  “Are they squared off cuts like you would see with a saw; are they thin, narrow cuts like you would see with a knife; or are they these shallow u-shaped things like you would see from carnivore teeth?  That’s much more diagnostic than parallel spacing,” he said.

“I’m not concerned about the spacing or the parallel nature of the lines.  Again, what’s most diagnostic to me is the shapes of these lines,” said Passalacqua.

Compensation: 

When the defense asked Passalacqua how much he was getting paid for his appearance in court, the witness said he was being compensated $2,000 for the day, what he called the “standard rate for a forensic subject matter expert.”

When asked about motive, Passalacqua said, “My wife is two weeks from giving birth, so she’s kind of at the point where the baby could come any day.” He explained that he also has family coming in for the Thanksgiving week and was scheduled to leave on an 11 p.m. flight after court on Tuesday.

The trial resumes today, Nov. 23, 2016, with additional prosecution rebuttal witnesses. Dr. Kanthi De Alwis is now retired, but worked as the chief medical examiner for the City and County of Honolulu.  She is testifying today as an expert in forensic pathology.

Charli Scott (left) courtesy photo; Steven Capobianco (right) by Wendy Osher (May 2016).

Charli Scott (left) courtesy photo; Steven Capobianco (right) by Wendy Osher (May 2016).

Case History/Background:

Steven Capobianco is standing trial for the murder of his pregnant ex-girlfriend, Carly “Charli” Scott. He is also accused of setting her vehicle on fire.

Scott was 27-years-old and five months pregnant at the time with an unborn child fathered by the defendant.  Capobianco has pleaded not guilty to the charges.

In the days following Charli Scott’s disappearance, Capobianco had done an interview with police in which he said Scott had picked him up on the night of Sunday, Feb. 9, 2014, and dropped him off at his truck that he said got stuck in Keʻanae on Feb. 8, 2014.

According to the account, both headed back to Haʻikū, with Scott following Capobianco in case his vehicle broke down again.  Scott was reported missing the next night on Feb. 10, 2014, after she failed to show up for work and did not return phone calls and messages from her family members.

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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