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Capobianco Trial: Rebuttal Witnesses say Evidence Not Consistent with Boar Activity

November 25, 2016, 8:54 AM HST
* Updated November 25, 9:09 AM
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Steven Capobianco (6.28.16) Photo by Wendy Osher.

Steven Capobianco (6.28.16) Photo by Wendy Osher.

The trial resumed on Wednesday, Nov. 23, 2016, with additional prosecution rebuttal witnesses 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.

Two rebuttal witnesses for the prosecution testified on Wednesday, including Dr. Kanthi De Alwis, who provided testimony as an expert in forensic pathology; and Maui Police Officer Brandon Rodrigues who testified on his experience as a hunter of wild boar and wild pigs. Officer Rodrigues also searched the Nuaʻailua area where remains, clothing and personal belongings were recovered in the case.

Dr. Kanthi De Alwis is now retired, but worked as the chief medical examiner for the City and County of Honolulu. She was employed with the department between 1984-2009, and spent the last 10 of those years as Chief Medical Examiner. She is a medical doctor with a specialty in forensic pathology.

After her retirement in 2009, Dr. De Alwis continued to conduct autopsies because the position had not been filled.  Over the course of her career, Dr. De Alwis said she has conducted around 9,000 autopsies, and today continues her work as a forensic consultant.

Explanation of Forensic Pathology: Certifying Cause and Manner of Death

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According to Dr. De Alwis, pathology is a branch of medicine which is a specialty that involves the study of deceased processes and their effects on the human body.  “So that study can either be done by examining the tissues that get surgically removed–like lets say tumors or other skin lesions–during surgery, and then it comes to the pathologist who then examines it first with the naked eye, and then with the microscope to make a diagnosis.  Clinical pathology involves blood testing.”

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She explained further saying, “Forensic pathology is also a branch of medicine that involves the science of recognizing and interpreting injuries and diseases in the human body.  It’s a sub-specialty of pathology that applies the knowledge and principles of pathology to resolve legal issues.  That is the basis of what we call medical legal death investigation.  It means that when a death occurs either due to unknown causes, suspicious circumstances, any violent death, deaths in prisons–all of these come under medical legal death investigation done by a forensic pathologist.”

“When you go to a doctor, you first give a history and then the doctor examines you and does lab tests,” said Dr. De Alwis.  “It’s the same way for forensic pathologists.  The only difference is because our patients cannot speak, we have to depend on the investigation where the information is gathered–by witnesses, by medical records–which gives us that history which is going to the circumstances leading to and surrounding the death.”

Dr. De Alwis continued saying, “So the forensic pathologist takes that information as that history, then we do a complete examination which includes clothing, any other materials, or anything that comes with the body, as well as sometimes pathologists have to collect evidence if there’s any evidence like metal fragments that comes with the body.  Then we do a complete external examination noting and measuring if there are injuries, what type of injuries, what’s the distribution, what’s the pattern of injuries, where they are located, distances from anatomical marks, and then we look for natural disease processes.”

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“We gather this history which is the investigative information, the autopsy findings–which is layer by layer dissection, looking at all the tissues, microscopic examination, looking at the bones, do this complete exam–then we take the lab tests.  Then we make a final determination because the primary duty is to certify the cause and manner of death–that’s the primary duty of the medical examiner,” said Dr. De Alwis.

Sharp force trauma:

When asked what she would be looking for when trying to identify sharp force trauma, Dr. De Alwis said, “We look at the injury features.  For instance, if it is a cut on the bone or even in tissues, first we have to determine–are these incised wounds, which means a cut, or are these stabs where the depth is longer than the surface area.”

“Then we look at the edges, the sharp edges that cuts and creates almost like a v-shape with the sharp cutting edges.  Then if it is other fractures consistent with blunt force injury from the jagged edges of the fractures.  So it depends, like mostly I said, it’s the type of injury and the features of the injury.”

Dr. De Alwis also described the different marks that would be left by a serrated edge knife on bone.  “If it gets scraped, yes we can see the distinguishing characteristics of the serration when it gets scraped versus when it cuts.  Because when it cuts, it’s a sharp cut.”

When asked what marks left by a sawing effect of a knife going back and forth would look like, Dr. De Alwis said, “It may not necessarily leave the serrated marks if it goes in a cutting motion back and forth, versus being scraped.”

When asked about human versus animal injuries to bone, Dr. De Alwis said, “When we receive skeletal remains, that’s something that we try to identify.  If there are marks on the surface of the bone, then we try to identify whether these are consistent with actual sharp force injury or blunt force trauma, versus scavenged by animals.  We try to make that determination initially, and then we send those for confirmation and thorough analysis to a forensic anthropologist.”

Instrument Injury versus Animal Scavenging:

In her 30-plus years as a forensic anthropologist, Dr. De Alwis said she has had the occasion of observing animal damage to bone.  Over the course of her career, she said she has seen this less than five times in Hawaii.  She said one or two of those cases involved boar or pig damage.

“That’s something that we had to have knowledge of when we were examining.  So it was from reading and looking at pictures and the basic knowledge which I had in trying to distinguish what kind of marks that animals would make –whether they are punctures, dog make punctures, boars can make scoring kind of marks or furrowing,” said Dr. De Alwis.

“Those are things that I had to have knowledge of in examining, although, like I said, once we identify the actual injury by an instrument versus consistent with scavenging by animals, you would send those out to the anthropologist,” she said.

Dr. De Alwis referenced a prior case that she was involved with that involved injury to bone that was caused by a pig or boar.  She said, “The scoring in that particular case showed more of a superficial, multiple, curvy-linear kind of marks.  Lots of marks versus a cut with the sharp edges that cut through the bone.  That’s the visual picture that I have and that is not only from that one or two cases, but from the general knowledge that we had to keep up with in reading and looking at pictures and to distinguish when we did get those cases, yes.”

In preparing for her testimony, Dr. De Alwis said she reviewed Dr. Lindsey Harle’s autopsy report, the death certificate that she filed, an anthropology report from JAPAC by Dr. Taylor, and the photographs that accompanied that report, as well as some other photographs that were taken at the autopsy and some photographs of clothing items.

On cross exam, when asked if an emergency room physician with the credentials and training could look at a picture and make a determination just as valid as someone with a pHd, Dr. De Alwis said, “An emergency room physician is a physician who treats patients who come to emergency rooms.  So when you say, can an emergency room physician look at just a picture next to another picture, that he is a Harvard faculty or Stanford faculty versus anyone if you have one next to the other, without considering any scientific facts, just looking at scoring versus not scoring, I think you can do it, we can do it, everyone can–if that’s what you are saying.  However, you cannot compare forensic pathology to emergency room medicine.”

Dr. De Alwis continued saying, “Yes, in the field where a doctor is an emergency room physician who has all those credentials, I’m sure in comparison to other emergency room physicians, do they have expertise in what they do? I’m sure, but I can’t answer that because we are comparing apples and oranges.  I’m a forensic pathologist.  I do a scientific examination of bones.  Has that emergency room physician seen hundreds and hundreds of cuts on the bones? No.  They don’t examine cuts.  When a patient comes to the emergency room they have to quickly clean the patient to save their life.  They’re not going to be looking at bones.  Whereas forensic pathologists–we examine, we have time to examine bones..  So I’m sorry, I can’t agree with that.”

Dr. De Alwis said she also examined both sides of the mandible as well as a pair of blue jeans.

Defense Accuses Court of Sleeping; Court Response: “You are Dead Wrong”

When prosecuting attorney Robert Rivera asked Maui Chief Judge Joseph Cardoza to publish a photograph, there was a 8-10 second pause, which was preceded by the judge turning his attention from his laptop to a pad of paper to his right.  Just before the pause concluded, the judge looked back at his laptop and granted permission.

Defense Attorney Jon Apo asked for the record to reflect that “the court was sleeping right there,” and said, “but the jury could what was happening.”

Judge Cardoza responded saying, “I’m reading the computer. I’m sorry you’re dead wrong…  That is not true.  I was reading the computer.  Ladies and gentlemen, I have a monitor in front of me and I read it, and I read it and that’s where I can follow the examination of the witnesses.  I was reading what was being said, and I was checking my notes because I have outlined the areas of examination that were permissible and I was going between my tablet here with and outline on what I’ve ruled on today, this morning, and my transcript.  I’m sorry Mr. Apo.  You are dead wrong,” Judge Cardoza said before asking Rivera to proceed.

Linear Marks:

“In my opinion, these marks are consistent with a sharp cutting instrument having cut through the bone.”  She continued saying, “It appears to be a cut with a sharp edge.”

When asked if she observed any score marks on the right mandible recovered from Nuaʻailua and what the marks looked like in comparison to the one or two cases involving boar or pig where she did observe score marks, Dr. De Alwis said, “The marks that I described as score marks, which are multiple curvy linear marks–I did not see those in this mandible.”

She said, “I did not see those scoring marks consistent with scavenging  by a boar or pig in this mandible.”

“I did not see those scoring marks consistent with scavenging by a boar or pig in this mandible that I examined,” said Dr. De Alwis.

Dr. De Alwis was then asked to put on gloves and show the jury where the “slice marks” appeared on the actual mandible that was recovered.

When asked if an area below the ramus on the exterior of the bone was consistent with an animal or a sharp force instrument, Dr. De Alwis said, “In my opinion, it’s consistent with a serrated instrument drawn against the bone (rather) than the scoring by an animal.”

Blue Jeans: Blood like patterns on fabric

“Usually the clothes accompany the bodies that I have examined.  So as part of that examination, we examine the clothes.  Again, my specialty is not in blood stain analysis, but as a forensic pathologist, one has a general idea of what we’re looking at,” said Dr. De Alwis.

When asked if she had an opinion of what would have caused the blood-like stain depicted in the right thigh area on a photograph of the blue jeans, Dr. De Alwis said, “As a forensic pathologist, my examination was, as I said, in general looking at stains and trying to determine what is consistent with that.  If you look at this photograph that’s to the right side of the screen, you’ll see the outer side of the blue jeans with a lot of folds… So my opinion is that this stain that looks like blood and the area that’s between the two stains, is consistent with a fold of the fabric where the blood did not come in contact.”

“When we usually examine clothing, that comes with bodies… that’s what one sees when there are folds.  You may see these areas with no blood, just like what you see in this picture here,” said Dr. De Alwis.

When asked if she sees any shapes on the jeans in the photo, or pattern where she would have an opinion where it could be a condom, Dr. De Awis said, “Not in my opinion because this shows a lot of folds.”

When focusing in on one particular area where blood is absent, De Alwis said, “Since you mentioned a condom and you look at just this area, and you think of that shapeust because that shape is there, doesn’t mean we would interpret (it) as a condom, because there are folds, and you look at the whole area.  You look at the rest of the area–you look at this picture, which was taken before it was flattened, and by looking at the entire area, you always take it in totality, and then see what is most consistent with. It’s consistent with folds.”

When asked if all that she testified to was to a reasonable amount of forensic pathological certainty, Dr. De Alwis responded saying, “Correct.”

Cross Exam: Was Someone Wearing the Jeans; Were they Standing or Sitting

On cross exam, defense attorney Jon Apo asked if the pants were folded before or after the blood got on the pants.  She responded saying, “It was folded when the blood got on, and that area that doesn’t have the blood has been folded.”  She continued her explanation saying, “That area had folds before the blood got in there… when you say folded, I’m not saying it was folded like this [she placed her hands together in a flat motion].”

Apo asked if she would agree that the pants were not being worn by somebody saying, “because if they are worn by somebody, they are not folded, right.”  Dr. De Alwis responded saying, “It may not have as many folds depending on the position of the person.  If you are standing erect versus if you are kneeling down, you may have folds. So we cannot generalize the way you are describing because right now you are standing, but you still have some folds, I can see.”

Apo asked for De Alwis to refine her opinion by asking if someone was wearing those pants when the blood got on them, to which defense attorney Rivera objected to the questioning saying that it goes beyond the scope.  Judge Cardoza overruled the objection and Dr. De Alwis responded, “No. I’m not saying that.  All I’m saying is that particular, the appearance is consistent with having had a fold in that area where there’s no blood; but I’m not saying it was worn at the time or that it wasn’t–and if it was worn, was the person standing or was the person on the ground or in a bent position where the pants can get folds.  But I am not referring to taking the pants and folding like laundry folding.”

In explaining further she said, “The reason you see an area of no blood is because there was some fold right there and that fold can look like what we described if you just look at the folds that he has.”

Consulting Fees:

On cross-exam, Dr. De Alwis was asked about her private consulting firm called Foreniscs Hawaii and explained that she gets paid a consulting rate of $375 per hour.   For a full day, she said she is being compensated $2,400.

Defense attorney Apo asked, “Would you agree with me that you’re not going to come all the way here and testify differently than what you’re expected to for the money that you’re getting paid, right?”  Dr. De Alwis responded saying, “I testify for my time.  I have never, ever, testified for a testimony.  I always, that’s something I’ve done since I have started private consulting.  It is only for my time.  Not for a testimony.”

Brandon Rodrigues is an 11 year veteran of the Maui Police Officer and is currently assigned to the Vice/Narcotics Division.  Rodrigues testified that he has been hunting wild boar and pigs since he was 10 or 11 years old and has been on hunts at least 100 times in his life.

On Feb. 15, 2014, Rodrigues was called to assist with the investigation at Nuaʻailua Bay in East Maui, where police recovered clothing and pieces of a jawbone in the search for Scott.

Rodrigues testified that he had gone to Nuaʻailua before, 2-3 times for pig hunting.   “It would always be above, on the mountain side of the road,” he said, noting that, “We’re not allowed to hunt below the road on the ocean side.”

Rodrigues described the scene as a “heavily wooded area, some mud trails, some mud areas.  It was below the roadway.”

The prosecution showed Rodrigues a photo, which he recognized as being an area where body jewelry was recovered from an area where he was assigned to search.

When asked to describe what marks left by boars look like, Rodrigues responded saying, “The marks are usually by the boars or males… You’ve got like scrape marks going across or up and down on the base of the tree or even as high as they can reach.”  He went on to say, “It’s usually more thicker markings, erratic, it’s not uniform at all.  It’s just kind of like all over the place.”

Rivera pointed to a tree depicted in the same photo and asked, “Can you tell us whether or not the wild boar or wild pig markings that you have observed as a pig hunter–is it similar or is it different than what we’re seeing here in this enlarged photograph?”  Rodrigues replied saying, “It’s definitely different.”  He went on to explain saying, “Those are like clean cuts,” referring to the photo from the scene.

“Did you observe any sign of plowing or feeding by any wild pig or wild boar within that area?” Rivera asked. Rodrigues responded, saying, “Not in the area I was, no.”  Rodrigues also said he did not observe any pig tracks, feces or plowing, things he said he would have observed, had a pig been in the area.

Rivera asked Rodrigues, “Have you ever observed a wild pig or wild boar feeding on anything, or having fed on anything other than fruits or roots or plants?”  Rodrigues responded saying, “In my experience, no.”

On cross exam, defense attorney Jon Apo sought to question Rodrigues’ credibility by asking him, “Can we agree that when you’re in the vice department, as a vice officer, you’re expected to engage in at least a little bit of deceit to get to the ends that you’re trying to get to?”  Prosecutors raised an objection to the question, which was sustained by the court.

Apo asked if Rodrigues was aware of pigs eating anything other than fruits, vegetables, roots and grubs, and the response was, “No.” Apo said, “You don’t know of them eating dogs or any other kind of carnivore?”  Rodrigues said, “In my experience, no.”

Apo followed up saying, “If there are journal articles in prestigious forensic journals, that cite pigs eating humans–human remains–that would be a surprise to you then?”  Rodrigues said, “No. I’ve read it before. I’m telling you what I’ve experienced.”

Apo then asked, “So you know that pigs are carnivores and in addition to it, you’ve testified knowing about these on direct, you know that they eat rotting carcasses?”  Rodrigues responded saying, “No, I don’t know that. I’ve never experienced that.”

Rivera followed up by asking if he had witnessed, “At any time during pig hunting or wild board hunting, dogs being attacked by pigs.”  Rodrigues said he did and said, “It’s like a fight.  They’re fighting pretty much for their life, so it’s really chaotic.”  Rodrigues said his dogs have been injured saying, “It’s usually real brutal injuries.  The dogs get really torn up from the tusks or from the teeth.”  He continued his explanation saying, “When you’re badly injured, it’s really bad for them… I’ve lost a couple of dogs.”

Rivera asked Rodrigues to describe what the area would have looked like after such a fight.  Rodrigues said, “It’s a mess.  It’s a chaotic situation.  They’re fighting and everything is trampled or in dismay.”

Rodrigues said he hasn’t heard of attacks of wild boars on humans happening on Maui, but has read about it on the internet or people talking about it, “But I’ve never experienced anything like that.”

The jury was excused from court for the day and asked to return on Monday, Nov. 28, 2016.

Prosecuting attorney Rivera said he had planned on seeking approval to present an additional rebuttal witness on blood patterns when the court reconvenes.

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.

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