Capobianco Trial: Rebuttal Concludes, Deliberations Commence

The prosecution wrapped up its rebuttal argument on Thursday morning in the Steven Capobianco murder trail, and the deliberation stage of the trail has now commenced.

Prosecution Urges Jury to “Seek the Truth”

Prosecuting attorney Robert Rivera started out his rebuttal by addressing the court saying, “As the triers of fact, which you are, you have a daunting task to determine whether or not the defendant committed murder.  And that task becomes even more difficult when the criminal defense lawyer consistently tries to mislead and misdirect you; and when the defense lawyer tells you to look for doubt.”

“The state is simply urging you to look for truth.  Seek the truth.  And in your search for truth, should you come across any doubt, ask yourself, is that doubt based on reason and common sense.  Or is it a doubt based on speculation, suspicion, imagination or guesswork, and if it is, those are not reasonable doubts,” said Rivera.

Rivera said defense attorney Jon Apo “begged” jurors to do their duty.  “He didn’t ask you to find his client not guilty.  He begged you do to your duty.  The state would argue to you that that is completely unnecessary.  There is no reason, absolutely no reason to beg any of you to do your duty because you have all clearly demonstrated that you are dedicated, you are committed, and there is no question that you will do your duty.  The state is simply asking you to seek the truth,” said Rivera.

Motive: Unwanted Pregnancy

Rivera then turned the jury’s attention to the first person that testified in the case, Linda Puppolo, who prosecutors say was examined “rather aggressively and vigorously.” Rivera then asked the jury, “If the defendant never went to planned parenthood, and the defendant never had that telephone conversation with Fiona [Wais] in December of 2013, why did he continue to lie and tell police on two separate occasions that he only found out for sure that Charli was pregnant when Adam Gaines told him?”

Rivera then referenced a police transcript in which Capobianco was being interviewed by Detective Wendell Loo on Feb. 12, 2014.  “When they were discussing that issue of who told you or how did you find out that Charli was pregnant, he says, ‘And then I get a call a couple months later like ‘Yeah, Charli’s got your baby.'”

During the interview police asked who told him, and Capobianco said he learned the news from his friend Adam. The transcript read: “’She didn’t want to tell me because I’ve made it kind of clear that I’m not a big fan of children.  I don’t interact with children.  I don’t hate them.  I don’t like, you know kick children away from me or anything…'”

Rivera noted that the interview took place on Feb. 12, two days after Scott was reported missing. Rivera argued that the defendant “continues that lie,” because on Feb. 28, more than 16 days later, he told Detective Loo and Lieutenant [BJ] Gannon that Adam called him and told him he heard the baby’s heart beat.

“That’s the first inclination you have of somebody mentioned it before,” said Rivera.

During the interview, Capobianco said that Scott’s sister Fiona Wais sent him a text, but he wasn’t convinced until his friend Adam told him.  The defendant told police that he tried to call Scott about it, and he is quoted as saying, “‘Charli never talked to me so I brushed it aside.'”

Rivera said, “Why is he lying. Why does he not want anyone to know that Adam was not the person who told him for the first time and confirmed to him for the first time that Charli was pregnant?  The reason is simple. He cannot have anyone knowing, especially the police at this time, that he went to Planned Parenthood, and he had a full conversation with Fiona about not only knowing about the baby, but there was already a plan in place to have the child aborted.”

“The reason that he can’t get into that is that it provides his motive to commit murder,” said Rivera.

Rivera then detailed the testimony provided by Puppolo saying, “Linda was pretty tough. She’s 5-feet tall. She admitted she’s not tall in stature but she was firm.  She was a strong lady. She took the stand and under vigorous cross-examination, with somebody who raised his voice at her and had to tone it down–after being instructed by the court to tone it down, she stood her ground.”

“The defense tried to get her to get her to agree there are only four things that she could remember about the couple,” said Rivera in reference to the Capobianco and Scott.  Rivera said Puppolo had to explain that she remembered the encounter “in its totality.”

“She remembered their conversation.  She remembered the look, the emotions on Charli’s face.  She remembered the defendant muttering under his breath.  She remembered a lot of things, a lot of details that stands out in her mind.  She remembers the defendant.  She identified him in court,” said Rivera.

If she truly wanted to get the defendant in trouble, Rivera said, “she could have said he was acting threatening; he was behaving obnoxiously; he didn’t listen to them; he looked mean; he was threatening everyone else there; he was a guy that was just possessed in his rage.  But that’s not how she described him.  She did say that they complied with whatever they said.  He did not object when he was asked to leave the room; but he did make Charli feel uncomfortable.”

Rivera turned his attention to Fiona Wais, asking the jury, “How is it that Fiona’s, involving what the defendant told her after she texted him—how is it that it is corroborated and consistent with Linda Puppolo.”

“They had no idea that Charli went to Planned Parenthood, let alone went to Planned Parenthood with the defendant. Nobody knew that,” said Rivera.  “There’s no question he did not expect Linda Puppolo to come up here because she wasn’t a part of the police investigation. That further tells you that she’s credible,” said Rivera.

Conversation With Co-Worker

Rivera moved on to rebut the defense’s mention of Capobianco’s co-worker, Ginseng Mileur, and a conversation that the two had at Mana Foods, where both were employed.

During his testimony, Mileur said that sometime in late March or early February of 2014, Capobianco asked him, “What would be the best way to get away with murder.”  The conversation occurred in the bakery at work in front of two other employees.

During closing statements, the defense asked why a person would make such a statement in front of everybody else.  “That was a fair question,” said Rivera.  “Why would the defendant make that type of statement? Well, the only reasonable explanation is that he was so bold and so arrogant that he truly believed he could get away with murder,” Rivera said.

“People commit crimes because they think they can get away with it.  That’s the basic gist of why people commit crimes.  They shoplift because they think they can get away with it,” said Rivera.  That statement drew an objection from the defense calling it speculation, and the court ruled to sustain the objection and strike the comment from the court’s record.

“If the defendant knew he was going to get caught–if he knew all of these people and the forensic scientists were all going to come forward to court in this trial, he wouldn’t have killed Charli, because he knew he couldn’t get away with it,” said Rivera.  “And Charli would be here on Earth today, mothering a two-year-old,” said Rivera.

Faceless, Nameless, No Identity

Rivera suggested that Capobianco refrained from pointing the finger at actual people, and noted that all of the individuals that Capobianco pointed to as potential suspects were faceless and nameless.

“If you recall, the defendant doesn’t provide any real names to the police or anyone else who’s asking what does he think happened, or who do you think could have done this,” said Rivera.  “He doesn’t provide any people with faces or identities. In fact, what he tells Det. Loo is that some creepy guy might have done this—faceless, nameless, no identity, but some creepy guy,” said Rivera.

When Fiona [Wais] asks him in May, several months later, ‘So what is your theory, what do you think happened with Charli,’ he tells Fiona, and she testified, took the stand and told you, ‘Oh, it could have been a hitchhiker,” and Fiona thought that was utterly ridiculous because the defendant was driving right in front of her (Charli) supposedly, and if there was a hitchhiker, her would have seen the hitchhiker,” said Rivera.

Rivera also referenced a conversation between Cassandra [Kupstas], Capobianco’s girlfriend at the time of the disappearance.  When she asked Capobianco what he think happened to Scott, Rivera said, “he didn’t give her a name; he didn’t give her a person with a face; all he said was Charli might have pulled over to pee, because pregnant women pee a lot.”

“So I guess she’s peeing and somebody grabs her and takes her.  Those were the persons, or I should say ‘non-persons’ the defendant is pointing to,” said Rivera.  “There’s a reason why, ladies and gentlemen, that he didn’t point to real people.  The reason why the defendant didn’t point or single out any real persons is because, one, he knew the police could easily check up on those people, and the police would eliminate them as suspects with no problem. And you know why he knew this?  Because he killed her.  Nobody else killed her.  He did.  So he’s not going to give them a name when he knows they’re going to eliminate it.  He already knew he killed her,” Rivera argued.

“So when you ask him what do you think happened, he’s going to give a nameless, faceless, non-individual that could be anyone, and that’s just speculation, mere suspicion, guesswork… and imagination,” said Rivera.

“Look at the Evidence in its Totality”

“Do you remember when Mr. Apo told you that if he says anything misleading or false to disregard it?” said Rivera.  He continued saying, “The state has no problem doing what he says.  Let’s disregard some of the things that he said.  ‘The state is asking you to convict the defendant solely on the testimony of Jennifer Taylor.’  That is misleading.  That is false.  Disregard it,” said Rivera.

Taylor was a former co-worker of Capobianco’s who testified that she saw the defendant driving a 4Runner in Hāna town the night that Scott went missing.

Rivera said Taylor’s testimony needs to be considered when looking at the totality of the 71 witnesses that testified for the prosecution.

“When the defense attorney said that there is no evidence there was blood on black bra–that statement is misleading and false. Disregard that,” said Rivera.

“Dr. [Lee] Goff made it clear, that maggots don’t feed on material,” said Rivera.  Apo raised an objection saying the comment was speculation and that there was no evidence supporting that claim.  Judge Cardoza overruled the objection.

“They’re not going to feed on material, and they’re surely not going to feed on foam.  They’re going to feed on blood.  They’re going to feed on decomposed matter,” Rivera said as he pointed to a photo of the bra recovered from Nuaʻailua Bay.  “There’s maggots in those cuts.  What are they eating? They’re not eating the foam,” said Rivera.  “They’re feeding on whatever blood that was left,” said Rivera.

Rivera asked the jury to disregard the allegation that there was no blood on the bra that was entered into evidence.

“When the defense tells you she (Scott) was wearing a blue bra, not a black bra, or this can’t be her bra, that’s misleading and not true.  Disregard it,” said Rivera as he pointed to photo of Scott that was also entered into evidence.

The defense also disputed that there’s no evidence Scott was wearing a black skirt. The prosecution pointed toward an interview between the defendant and police in which Capobianco said he thought it was a black dress that she was wearing.

Rivera also brought up the defendant’s injuries to his hands.  “Because he lied so much, we don’t know if he injured his hands murdering Charli Scott.  We don’t know if he injured his hands burning her vehicle.  We don’t know that.  And we might never know exactly how he injured his hands.  He told lie after lie after lie.  But we do know one thing–he injured his hands on the night he murdered Charli Scott,” Rivera argued.

“We know he didn’t injure his hands on Saturday, the day before, because Ginseng Mileur told us he didn’t see any injuries on the defendant’s hands, and the defendant did not complain of an injury.  In fact, it wasn’t until Tuesday when Ginseng came back to work—he didn’t work Monday—that he came back to work on Tuesday, the defendant didn’t just explain and give him a lie of how he injured his hands, he told him one of his hands he had lost all feeling in it.  And he didn’t make that complaint on Saturday,” said Rivera.

State Considers What Constitutes an Expert Opinion

Dr. [Lindsey] Harle and Dr. [Kanthi] De Alwis are board certified forensic pathologists and have conducted thousands of autopsies here in the state of Hawaiʻi, and have rendered thousands of opinions on the cause and manner of death.  Dr. [Rebecca] Taylor and Dr. [Nicholas] Passalacqua are forensic anthropologists, and they have conducted hundreds of bone trauma analysis and have submitted hundreds of reports that have been peer reviewed,” said Rivera.

Rivera continued saying, “The defense expert Dr. [Michael] Laufer—he’s never been trained or educated as a pathologist.  He’s never been trained or educated as a forensic pathologist, a clinical pathologist,a and an anatomical pathologist… He has never been board certified in any of those fields, especially forensic pathology,” said Rivera.

“Instead, he has watched over the years, experts such as Dr. De Alwis.  He has watched experts such as Dr. Harle conduct autopsies, and saw them render opinions as to the cause and manner of death.  He’s not able to render an opinion as to the cause and manner of death.  He’s not a board certified forensic pathologist working for a medical examiner’s office,” said Rivera.

Rivera said there are certain things to become qualified in that field, “and watching other people do their work is not one of them.”

Patterns: “It’s As Clear As Day”

“He is the only person to come to court and to tell you that a pig did this… to Charli’s jawbone,” said Rivera of Dr. Laufer’s testimony.  “He wants you to believe that a pig weighing about 150 to 200 pounds or more bit down on Charli’s jawbone–which is not more than four inches in length–and only caused these four little linear lines, and that’s it.  Oh, and by the way, also caused… toward the back part of Charli’s right jawbone, caused what is clearly and obviously a shaved area with a serrated edge,” said Rivera.

“You can see the patterns.  It’s as clear as day,” said Rivera.

If a pig had pulled the flesh off the bone and removed part of the bone as the defense suggested, Rivera said, the bone would have fractured and, “It wouldn’t look like somebody took a steak knife and just shaved that area.”

In order to buy a story that a boar weighing 150-200 pounds or more made these four tiny marks, “you’re going to have to disregard the testimony of officer Brandon Rodrigues who is an avid pig hunter,” said Rivera.

Rivera said Rodrigues’ testimony explained how pigs eat.  “They plow.  They mark trees with their tusks… and the word that he used a lot is everything is chaotic, everything’s thrown about.  It’s not in a nice little row like the evidence was when the police collected it.  Everything is strewn about.  Roots are pulled out of the ground,” said Rivera.

“There is absolutely no evidence of any type of plowing or feeding in that area.  So if you’re going to buy Dr. Laufer’s opinion or accept, you’re going to have to buy his opinion—he was already paid $10,000, more than any other expert who testified, and he wasn’t even board certified,” said Rivera.

Holding the jawbone in a plastic bag, Rivera addressed the jury and said, “If you’re going to buy the pig story, you’re going to have to believe that the pig tiptoed in there, didn’t disrupt anything, pulled out a steak knife and made these cuts,”

Rivera called defense’s use of photos juxtaposed next to each other “misleading” and “amateurish,” saying, “How hard is it to take a photo that’s not to scale and match it up to another photo that’s not to scale, and put it together.”

“That is misleading and you can disregard that,” said Rivera.

The prosecution said their expert witnesses do not speculate as to why a crime was to occur, but, “what they do tell you is how and what caused the injuries that they observed on bone.

“Think about it, when you look at these four cut marks, it resembles what we all have at home, a cutting board.  Look at your cutting board or think about your cutting board, it looks just like that.  There’s cut marks in it.  Sometimes they’re straight, sometimes they’re not.  That looks exactly like a cutting board, and that, unfortunately is what Chari’s jawbone was at the time,” said Rivera.

DNA Probabilities

Rivera said the defense was partly correct in the numbers, but not in argument. Rivera said the state is asking the jury to convict the defendant based on the fact that the DNA evidence found in the waistband of the bluejeans with Charli’s blood, occurs in 1 out of 185 people, and the defendant is one of those people. “He also told you that the numbers must be in the quadrillions–and the state doesn’t dispute that–but he told you the numbers must be in the quadrillions, and the state is asking you to convict the defendant on the fact that it’s only 1 in 185,” said Rivera.

“First of all, you never heard that from state. And that is completely misleading and completely false,” Rivera argued.  “The state is not asking you to convict the defendant because of the DNA results.  All the DNA results do is it says the defendant cannot be excluded as a person who left his DNA marker, his partial DNA markers, or his profile in the waistband of the bluejeans.  He just can’t be excluded,” said Rivera.

“And the chances that another person with those same markers would be 1 out of 185.  So it would be ridiculous for the state to argue that therefore he’s guilty.  The state is not arguing that.  Again, that’s misleading and that’s false.  Disregard that,” said Rivera.

“What is asking you to do, ladies and gentlemen, is convict the one person in the world, who has the same DNA markers, and one–that person knew Charli Scott, and who had the same DNA markers; and he impregnated Charli Scott, and who had the same DNA markers; and he lied about how he found out Charli was pregnant; and that same person with the same DNA markers lied about injuries to his hands on the night Charli is murdered; and that same person with that same DNA markers who by their own phone records uses their phone on Maui 99% of the time in a place other than the Nua’ailua area; and of the 1% of the time that person with the same DNA markers would have used his phone in the Nua’ailua area,” said Rivera.

“Not only that, in the 1% of the time that that person with the same DNA markers used his phone in that 1% of the time in Nua’ailua, it happened to be when Charli is murdered, when her body is covered with her own blanket.  And by the way, when Charli was covered, she was wrapped in her own blanket for a short time being, that became her temporary grave. And the person with the same DNA markers that returned the next day, and was there just before the second onset of maggot activity. That’s what the state is asking you to do.  And there’s only one person in the world who fits that description,”‘ said Rivera.

Admission to Lie About Car Breaking Down “Validates Cell Site Analysis”

During closing arguments on Wednesday, defense attorney Jon Apo asked, “Why would it be a surprise that a drug dealer, that the state has evidenced him to be, would be lying to a detective about why he was at a particular location.”

That remark drew rebuttal from Rivera who said the, “Right then and there, the defendant’s own lawyer conceded.  The defendant lied about his car breaking down.  Now since the defendant is making that admission at this late stage, that means a number of things. For the first point, it means, because now he admits that the defendant did lie about his car breaking down, it means that Special Agent Michael Easter’s cell site analysis is accurate, because Special Agent Michael Easter told us, pursuant to that cell site analysis, the defendant never left the Haʻikū area.  We know that’s true, not just from the analysis, but they’re conceding that,” said Rivera.

“We also know, based on that concession, that Taylor Farner was accurate when she told you the defendant would never leave his old white truck stranded.  So one can conclude beyond a reasonable doubt that the defendant would not leave his prized Toyota 4Runner with custom sounds stranded. In fact, he didn’t because he’s now admitting he lied,” argued Rivera.

“It also means, ladies and gentlemen that Kyle Knight also testified accurately, that he never gave the defendant a ride to work. You can believe him.  It also means that the defendant’s grandfather was accurate as well when he saw the defendant drive his 4Runner to work… In fact, what is accurate is Bank of Hawaiʻi surveillance video. That was, no question, that was the defendant’s vehicle driving up the road at 6:41 in the morning, right before he clocked in to work,” Rivera argued.

Rivera said that also means that the mechanic who testified is accurate when he told the jury that your car is not going to stall when the battery disconnects.

“That also means that when Kurt Kaiser came to court and took the stand, and told you that the defendant himself told him to come pickup his backpack because his 4Runner was unlocked and parked in the Mana Foods parking lot all day on Sunday.  That’s accurate as well,” Rivera argued.

Lie to Cover a Drug Deal?

“Lets take a deeper look into this new concession.  Now remember, his explanation from what happened on Sunday flowed from his lie that his car broke down on Saturday,” said Rivera.

“That means Charli did not have to drive him to his car which was supposedly broken down, because we know it wasn’t. She did not have to shine her headlights on his car engine so he could reconnect a battery cable that was never disconnected in the first place.  In fact, his car was never there for her to shine her lights on.  That means more horrifically, ladies and gentlemen, Charli never followed the defendant home safely. Charli never left the Nua’ailua area. She was murdered there that night. That also means he never texted her and told her thank you. So, because that’s the case, why maintain that lie?  Why would he say that during three interviews with the police; during an interview with Mileka Lincoln on TV.  Why would he tell Brooke [Scott] that? Why would he tell Adam [Gaines] that?  Why would he tell everyone that again after Charli’s disappearance was reported to police?  Why would he lie?  Why would he say these things? Is it to hide a drug deal?  Is he lying to hide a drug deal, as counsel would have you believe?”

“As the defense points out, ladies and gentlemen, the entire Maui blamed the defendant… and one would think because the entire Maui is blaming him, and this is Mr. Apo’s argument, they are all against him.  One would think that given the opportunity he would clear his name.  Because during the first interview on the 12th, that’s the story he gave to police and everyone else.  Sixteen days later on Feb. 28th, one would think he would have come forward and for once–because his friends blamed him, Charli’s family blamed him, the media blamed him, and as Mr. Apo said, the entire community blamed him–you would think at that time, he would come forward and clear his name in a murder investigation,” said Rivera.

“It is completely inconceivable that he didn’t try to clear his name and continue to lie just to cover up some kind of marijuana deal.  According to the defense, and not the state, according to the defense, he’s a drug dealer and he deals marijuana.  So he’s trying to cover up a marijuana deal? And let himself get blamed for murdering his pregnant ex-girlfriend?  Does that make any sense at all?  It is utterly and absolutely ridiculous,” said Rivera.

“Irony” of Jawbone

Rivera continued saying, “This question had puzzled law enforcement. Why. Why would the defendant mutilate Charli’s mouth?”

“Why would he do what he did to her jawbone? Why her mouth? He already stabbed her in the chest. Stabbed her over 20 times and destroyed her womb.  Why go after her face–her mouth especially?” asked Rivera.

“As Mileka Lincoln asked in the interview, and she asked the defendant a question, and he answered. Of all things, he answered ‘I could see her pissing somebody off.’  Before he said that he said, ‘She had kind of a mouth on her,’ and then he said, ‘I could see her pissing somebody off,'” Rivera said.

“The somebody that Charli pissed off is none other than the defendant,” Rivera argued.  “He is the only person, ladies and gentlemen, that had a motive to dismember her mouth and deflesh her jawbone.  And that’s why its so ironic that the only piece left of Charli Scott for us to see is her jawbone,” said Rivera.

The statement drew an objection from the defense who argued that it assumed facts not in evidence. The judge sustained the objection based on the prosecution’s use of the word “only.”

Rivera rephrased his statement and said, “The largest piece of Charli’s anatomy left for us to view is her jawbone. Charli Scott, ladies and gentlemen, is speaking to you through her jawbone.  She’s telling you that the defendant lied to her that his car broke down.  She’s telling you, folks, that a pig didn’t do this to her. Charli is telling you to follow the forensic sciences and listen to the legitimate forensic experts.”

The statement raised further objections from the defense who said, “That’s speculation what Charli is telling anyone.”

Rivera responded saying, “No matter how loud he yells, it’s not speculation.”

Judge Cardoza sustained the objection and the move to strike the comments was granted.

Rivera continued saying, “The only person who could have done this to Charli Scott is the only person with a motive, the opportunity and intent.  She doesn’t want your pity or your sympathy.  She wants justice.  Find him guilty.”

That statement, too, raised an objection from the defense, and the judge sustained the motion to strike that portion of the argument.

Rivera returned and concluded his rebuttal by saying, “Find the man who did this to Charli guilty. He’s right in front of you. Thank you.”

Court is not expected to reconvene again until the jury has reached a verdict or communication is made to the court for a need to reconvene.

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.

State v Capobianco trail. Defense Attorney Jon Apo in foreground with fellow defense attorney Matthew Nardi and defendant Steven Capobianco (background) . PC: 12.01.16 by Wendy Osher.

State v Capobianco trail. Defense Attorney Jon Apo in foreground (right) with fellow defense attorney Matthew Nardi and defendant Steven Capobianco (background) . PC: 12.01.16 by Wendy Osher.

State v Capobianco trail. Judge Joseph Cardoza. PC: Wendy Osher 12.1.16

State v Capobianco trail. Prosecuting Attorney Robert Rivera. PC: 12.01.16 by Wendy Osher.

State v Capobianco trail. Prosecuting Attorney Robert Rivera. PC: 12.01.16 by Wendy Osher.

State v Capobianco trail. Steven Capobianco . PC: 12.01.16 by Wendy Osher.

State v Capobianco trail. Defense Attorney Jon Apo in foreground with fellow defense attorney Matthew Nardi and defendant Steven Capobianco (background) . PC: 12.01.16 by Wendy Osher.

State v Capobianco trail. Steven Capobianco (background) with his defense team. PC: 12.01.16 by Wendy Osher.