‘Big lie’ involved victim, defendant getting pot

In final arguments, defense attorney tells why Capobianco not forthright with police

Anticipating an objection in his charged final arguments Wednesday morning, defense attorney Jon Apo gestures to Maui County First Deputy Prosecuting Attorney Robert Rivera. Apo was making his case to the jury in the murder trial of Steven Capobianco. The Maui News / MATTHEW THAYER photo

Anticipating an objection in his charged final arguments Wednesday morning, defense attorney Jon Apo gestures to Maui County First Deputy Prosecuting Attorney Robert Rivera. Apo was making his case to the jury in the murder trial of Steven Capobianco. The Maui News / MATTHEW THAYER photo

WAILUKU — Murder suspect Steven Capobianco had a reason to lie to police about why he was with his pregnant ex-girlfriend in the Keanae area the night she was last seen alive, his attorney said Wednesday.

But the reason he told police that Carly “Charli” Scott had driven him there to retrieve his stalled truck wasn’t to cover up his involvement in a murder, defense attorney Jon Apo told jurors during his closing arguments in Capobianco’s 2nd Circuit Court murder trial.

Addressing “this big lie the state says is proof of murder,” Apo said: “Why would it be a surprise to anyone that a drug dealer, as the state has evidenced him to be, would be lying to a detective about why he was at a particular location?”

“If you’ve lived on Maui long enough, you know there’s no shortage of pakalolo in Keanae,” Apo said.

Referring to testimony that Capobianco and Scott had been involved in growing marijuana when they lived together in Kula, Apo said the drug was “the real reason Steven and Charli stayed together after they broke up.”

Defendant Steven Capobianco listens to defense attorney Jon Apo make a case for a verdict of not guilty in his closing arguments Wednesday morning. The Maui News / MATTHEW THAYER photo

Defendant Steven Capobianco listens to defense attorney Jon Apo make a case for a verdict of not guilty in his closing arguments Wednesday morning. The Maui News / MATTHEW THAYER photo

“You also heard evidence that Steven would go to Hana to pick up pakalolo and Charli would go with him on occasion in the past,” Apo told jurors. “Is Steven supposed to tell Detective (Wendell) Loo about that?”

Capobianco, 27, has pleaded not guilty to second-degree murder of Scott and second-degree arson of her vehicle.

He is the last person known to have seen her alive.

In interviews with police detectives and conversations with family members and friends, Capobianco said Scott drove him from Haiku to about 3 miles past Keanae the night of Feb. 9, 2014, after his truck had stalled there the night before. After fixing a loose battery cable on the truck, Capobianco said he was driving back to Haiku, with Scott following, when he lost sight of her headlights in the Twin Falls area.

At the time, 27-year-old Scott was in the fifth month of her pregnancy with a son. Apo said Capobianco didn’t dispute the child was his “based on timing,” even though “we have never been provided any proof of that.”

Defense attorney Jon Apo questions the veracity of the prosecution’s case while making his closing arguments Wednesday. The prosecution will have the final say in rebuttal today. The Maui News / MATTHEW THAYER photo

Defense attorney Jon Apo questions the veracity of the prosecution’s case while making his closing arguments Wednesday. The prosecution will have the final say in rebuttal today. The Maui News / MATTHEW THAYER photo

Scott’s dog Nala, who Capobianco said was with Scott in her vehicle that night, was found the morning of Feb. 10, 2014, at Nahiku Marketplace.

Two nights later, police found her 1997 Toyota 4Runner burned near the “Jaws” surf spot in Peahi.

On Feb. 13, 2014, a searcher found a pair of DKNY blue jeans with Scott’s blood over a guardrail at the edge of a cliff at Milepost 9.5 along Hana Highway.

Later that afternoon, searchers, including Scott’s half sister Phaedra Wais, found a black skirt and blue polka-dotted tank top that Scott had been last seen wearing, along with her maggot-infested green blanket and other evidence in a wooded area at Nuaailua Bay.

Over the following two days, police officers searching the same Nuaailua area makai of Mile Marker 15.5 found a black bra, pieces of Scott’s lower jawbone, five fingernails from her right hand, a bone fragment, skin fragments, clumps of red hair and a body piercing.

Defense attorney Jon Apo points to the jury while making his closing argument The Maui News / MATTHEW THAYER photo

Defense attorney Jon Apo points to the jury while making his closing argument The Maui News / MATTHEW THAYER photo

On Feb. 14, 2014, “while out at Nuaailua Bay, Detective Loo testified he had already concluded by then that Charli Scott had been dismembered by Steven Capobianco,” Apo said.

He said detectives’ interviews of 10 others described as “persons of interest” were “token follow-ups, just to say they did it.”

In addition to not following up on other suspects, Apo said police “refused to consider anything but that ludicrous dismemberment theory.”

“Forget that this is pig grounds,” Apo said. “Forget you’ve got bones so small there’s no explainable reason for getting them that small except if they went through a wood chipper.”

Testifying for the prosecution, forensic anthropologists and pathologists said marks on Scott’s lower right jawbone were consistent with having been made by a serrated knife. But defense witness Dr. Michael Laufer, a Stanford emergency room doctor and trauma surgeon, said the linear, parallel marks were made by an animal, possibly a wild boar weighing 150 pounds or more.

Referring to the prosecution’s four forensic expert witnesses, Apo said: “Why can’t any single one of them give you some explanation about why somebody would be sitting there with a serrated knife on a jawbone making parallel lines?”

Apo said that, under the law, jurors couldn’t hold it against Capobianco because he chose not to testify. “Why would he, given the state of the evidence?” Apo asked.

He said the defense wasn’t required to present evidence or prove anything.

“We the defense have actually proven that the state has no idea what it’s talking about,” Apo said.

He said the first prosecution witness, Planned Parenthood clinic manager Linda Puppolo identified Capobianco as being “coercive and disruptive” while accompanying Scott to the clinic Oct. 25, 2013, to discuss her having an abortion. Puppolo testified she remembered the encounter, in part because Capobianco was shorter than the red-haired Scott, who had the same name as Puppolo’s daughter, Apo said.

“The uncontradicted evidence is Steven Capobianco is at least 6 feet tall,” Apo said. “Charli was 5-10.”

He said Capobianco’s time card for that date shows he worked at Mana Foods in Paia the day of the clinic visit. Apo questioned whether Capobianco could have made it to the appointment.

“Turns out Ms. Puppolo is Mr. Rivera’s mother’s friend,” Apo said, referring to First Deputy Prosecuting Attorney Robert Rivera. “And she didn’t come out until two years later, right before trial.”

Referring to testimony that Capobianco had asked a co-worker “how to get away with murder” two weeks before Scott’s disappearance, Apo said such “quirky” comments weren’t uncommon among Mana Foods bakery employees.

“It would be ridiculous for anyone planning a murder to ask out loud in front of a group of people how to accomplish such a task,” Apo said.

He disputed the prosecution’s argument that Capobianco was angry when he learned Scott hadn’t gone through with an abortion, giving him motive to kill her and her unborn child.

Capobianco’s then-girlfriend Cassandra Kupstas testified she had been upset when he told her that Scott was pregnant.

But by the time Scott went missing, Kupstas “had assured Steven that everything would be fine between them even with the baby,” Apo said. He said Kupstas encouraged Capobianco “to take care of his duties as a father.”

“That’s Cassandra’s own words, and she wasn’t here to help Steven,” Apo said.

“The evidence is as clear as day — Steven did not have any motive to kill Charli by the time she went missing,” Apo said. “The real evidence is that it is nothing but reasonable for Steven to be noticeably concerned about becoming a father and nothing but reasonable to be aggressive in an attempt to communicate with Charli.”

Apo said Scott had plans to raise the child on her own without Capobianco’s help.

He said witnesses and others reading posts on the “Find Charli Scott” Facebook page had been “Facebooked into believing that all efforts to find justice for Charli equates to hanging Steven Capobianco for killing his unwanted child.”

Apo also questioned the prosecution’s timeline based on analysis of Capobianco’s cellphone activity and analysis of maggots by forensic entomologist Lee Goff.

Based on the analysis, Capobianco would have had three hours to drive from his house in Haiku to the Nuaailua Bay murder scene, then through Nahiku and Hana before returning to Haiku the night of Feb. 9, 2014, Apo said.

“That defies common sense and reason,” he said. “And that’s assuming he burned a 4Runner later on.”

At 7 p.m. the next day, when another egg-laying event coincided with the alleged wrapping of Scott’s body in her blanket at Nuaailua Bay, Capobianco’s cellphone activity showed he had been back in the Haiku area for an hour, Apo said.

He said the defense didn’t agree with Goff’s analysis because he used Kahului temperatures provided by police rather than Hana weather data and he had been given incorrect times for when maggots were refrigerated.

At times during Apo’s argument, Rivera objected and 2nd Circuit Judge Joseph Cardoza upheld some objections.

“Arguments should be based on evidence in the record and reasonable inferences therefrom,” Cardoza said to Apo at one point. “There’s no evidence on the record to support some of the things you’re saying.”

The trial was scheduled to resume today with the prosecution’s rebuttal arguments.

* Lila Fujimoto can be reached at lfujimoto@maui news.com.

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