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11/04/12 1:35 AM
Charles A. Capone asks for Judge William D. Acey to be removed because he feels he can't get fair trialPosted: Saturday, November 3, 2012 12:00 am
By KERRI SANDAINE of the TribuneThe Lewiston Tribune |
ASOTIN - Charles A. Capone wants a new judge to preside over his trial in Asotin County Superior Court.
The 51-year-old Moscow resident is charged with second-degree assault for allegedly attempting to strangle his estranged wife, Rachael Anderson, in late 2009. He is being held in the Asotin County Jail on a $1 million bond.
In a hand-written document filed at the Asotin County clerk's office Friday, Capone said he doesn't believe he can get a fair trial based on his high bond and what happened during a bond review hearing last month. He wants Superior Court Judge William D. Acey to recuse himself or be removed from the case.
Capone claims Acey is prejudiced against him because he didn't reduce the $1 million bond and "because (Asotin County Prosecutor Ben) Nichols shouted at the judge, and the judge backed down. Then he set my bond really high. Judge Acey said he usually sets bonds this high in murder cases. My case is not a murder case and with the way both Judge Acey and Mr. Nichols acted, I don't believe I will get a fair trial."
During a recent bond review, Nichols told the judge he was wrong at one point. Capone's attorney, public defender Jane Richards, said Nichols was being rude to the judge, and Nichols denied the accusation. The exchange between the two attorneys grew heated at times. In the end, the judge maintained Capone's bond saying his decision was based on the defendant's serious violent history and flight risk.
Capone's request for a new judge will be heard Monday morning in Asotin County Superior Court. No trial date has been set, but Capone has pleaded innocent to the domestic violence assault charge.
Anderson, a Clarkston mother of four, has been missing since April 16, 2010. Capone is a person of interest in her disappearance, but has never been named as a suspect. They were in the process of getting divorced when she vanished.
Sandaine may be contacted at kerris
@lmtribune.com or (208) 848-2264. Follow her on Twitter @newsfromkerri.
© 2012 The Lewiston Tribune. All rights reserved.
03/23/13 6:15 AM
Charges against Capone will be dismissedBy KERRI SANDAINE of the Tribune
ASOTIN - A domestic violence charge against a missing Clarkston woman's estranged husband is slated for dismissal on or before May 1 to make way for an anticipated federal case.
Charles A. Capone's impending trial has been called off in Asotin County, but he will remain in jail pending the outcome of a federal grand jury's decision next month.
Defense attorney Mark T. Monson of Moscow and Asotin County Prosecutor Ben C. Nichols agreed to a contract Monday calling for a delay of the trial, slated to begin Friday in Dayton, Wash., and dismissal of a second-degree domestic violence assault charge against Capone. Asotin County Superior Court Judge William D. Acey signed off on the agreement Monday. Capone, who has pleaded innocent to the assault charge, appeared in court via video link from the jail and indicated he agrees with the contract.
Because of Capone's criminal history, the potential sentence on a conviction on the second-degree assault charge in Asotin County is six to 12 months, Nichols told the Tribune. Capone has been in custody in Asotin County since October and will remain there until the federal authorities step in or May 1.
Capone, 51, was accused of attempting to strangle Rachael Anderson on Dec. 27, 2009, just days before she filed for a divorce, according to court records. She has been missing since April 16, 2010. Authorities have named Capone as a person of interest in Anderson's disappearance.
"Everyone realizes this case is really about the disappearance of Anderson," Nichols told the Tribune. "Because of the limitations in the state law, I don't believe we can do Rachael Anderson justice in the state court. I have been assured the federal authorities will indict Mr. Capone, and he will face more significant punishment for his role in her disappearance in the federal court."
Nichols said the agreement was worked out over the weekend and the motions were filed Monday morning.
According to the contract, the prosecutor agrees to dismiss the charge immediately upon an indictment by a federal grand jury or confirmation by the U.S. Attorney's Office that the government is not seeking an indictment against the defendant.
The charge will be dismissed no later than May 1. If no charges are filed, Capone will be released from jail.
"Given we have assurances that the state will dismiss the charge one way or another, we couldn't argue with that," Monson said in court via telephone. "We are satisfied with the agreement, and in the interest of justice, there is no reason to conduct a trial."
The next hearing in this matter will be at 9 a.m. on May 1 in Asotin County Superior Court before Judge Ray D. Lutes.
Sandaine may be contacted at email@example.com or (208) 848-2264. Follow her on Twitter @newsfromkerri© 2013 The Lewiston Tribune. All rights reserved.
07/02/13 3:09 PM
Posted on June 12, 2013 at 11:25 AM
07/29/13 2:35 AM
Hearings for Capone, Stone set for Tuesday By ELIZABETH RUDD of the TribuneThe Lewiston Tribune
MOSCOW - The preliminary hearings for two men charged with murder in connection to the disappearance of a Clarkston woman three years ago are set to begin Tuesday in Latah County.
Charles A. Capone, 52, and David C. Stone, 49, are facing several charges for their alleged roles in the death of Rachael Anderson, a mother of four who has been missing since April 16, 2010. While Anderson's body has not been found, officials believe there is sufficient evidence to proceed with the case.
The preliminary hearing is scheduled to begin at 8:30 a.m. Tuesday and expected to last three to four days at the Latah County Courthouse in Moscow.
The men are charged with first-degree murder, conspiracy to commit first-degree murder, failure to notify a coroner or law enforcement officer about a death and conspiracy to commit failure to notify a coroner or law enforcement officer about a death.
Anderson and Capone were in the process of getting divorced when she vanished.
Capone and Stone were arrested in May and have been held in the Latah County Jail. The two were initially denied bail but last week Magistrate John C. Judge approved the issuance of a $250,000 bond for Stone. He has been unable to raise the amount needed and remains in jail.
Latah County Prosecuting Attorney William Thompson Jr. said the hearing, which will be before Magistrate Judge, is to determine if the case has probable cause to be bound over to District Court for trial.
While similar to a trial, the preliminary hearing will not be heard by a jury, Thompson said. Instead, Judge will listen to testimony and view evidence presented by the prosecution and any cross-examination from either Capone's or Stone's attorneys. Moscow attorney D. Ray Barker will represent Capone, and Stone has retained Charles Kovis as his attorney.
Thompson said it is common to have a joint preliminary hearing for co-defendants such as Capone and Stone, but Judge will consider their cases separately. Judge also has the discretion to determine if there is enough substantial evidence per each of the four charges for both men.
Should Judge determine there is not enough evidence for the case to be bound over for trial, then he would discharge the defendants and their cases would conclude without prejudice, Thompson said. However, he said, the charges could be re-filed because it happened in a preliminary hearing.
For live updates during the Capone and Stone preliminary hearing, visit the Lewiston Tribune blog From the Newsroom at this shortened link: http://bit.ly/1e0L8p7. Regular updates will also be available by following the Lewiston Tribune on Facebook and @LewistonTribune on Twitter.
Rudd may be contacted at firstname.lastname@example.org or (208) 791-8465.
07/30/13 2:50 PM
Posted: Tuesday, July 30, 2013 2:20 p.m. Hally's testimony: Capone was not an emotional wreck over his divorce during conversation with Hally at his shop. (Thompson is asking the questions again.) Statement about Capone knowing where the body is was never disavowed, correct? Never disavowed, Hally said.
Any significance to Stone's response to blood statement? He didn't deny it, Hally said.
2:15 p.m.: Did you look in Clarkston for the Yukon? We looked all over the place for the Yukon, Hally said. He personally checked Clarkston, Port of Wilma, Snake River Road, Evans Pond, Anatone, anywhere he could think of.
Interviewed Stone at his house. He invited Hally and other officers in. Hally told Stone "he had blood on his hands." It's a statement I made, Hally said. I wanted to see his response. He responded by sitting backwards and asking for a drink of water. Kovis said he wasn't contacted and interview was not recorded.
"it's a murder case and you don't record an interview with someone you think has blood on his hands," Kovis said.
2:10 p.m.: Is it possible ping was coming from an airplane? I did not check to see if pings come from planes, Hally said.
Stone has never been indicted for murder, Kovis said.
Why have no charges been brought against Mr. Stone in the state of Washington? Because evidence does not show this crime was committed in the state of Washington, Hally said.
2:02 p.m.: Did Capone ever admit to causing damage to Anderson's car? He did not, Hally said.
Kovis takes over questioning. He wants to know more about pings on Anderson's cellphone.
2 p.m.: Hally has talked to U.S. Attorney offices and federal authorities about an indictment. Capone was arrested on a charge created to keep him in jail, Monson said. That charge was levied because there was probable cause he had assaulted Anderson. (They are referring to an Asotin County charge against Capone about an alleged strangulation.)
Charge came after more information about that domestic violence case surfaced, Hally said. Capone was arrested when his time at a federal prison for the firearms conviction had concluded. Monson said the reason Asotin County waited two years to file charge is because they wanted to keep Capone out of the community. (Monson represented Capone during Asotin County proceedings.)
Hally's credibility is at issue, Monson tells the judge.
1:55 p.m.: Earlier interview with Stone at MPD was recorded, Hally said. Problem with recording equipment on May 6 when he talked to Capone. Monson said the only incriminating statement by Capone was not recorded and only person who heard it was Hally. "And this is a murder case," Monson said.
1:50 p.m.: Stone was also at the police station that day. Hally said he didn't have any contact with him.
Monson is conferring with his client at the table.
1:40 p.m.: Search warrant for computer was placed in Spillman, Hally said. Interview with Capone on May 6 and subsequent report is now being discussed. Any other narratives? I don't believe so, Hally said. Was anyone else with you? Yes. ATF agent Lance Hart was there. Hally said he knew Capone had a divorce attorney. Interview with Capone was at Moscow Police Department. Only person in the room when Capone made alleged statement and who has any knowledge of any kind of passive confession is you, correct? Monson asked. That is correct, Hally said.
Hally called Monson's office after interview. "I didn't go after him," Hally said in response to a question about the interaction with Capone.
Monson said Capone has a Constitutional right to have a lawyer present during questioning. I wasn't questioning him, Hally said.
1:35 p.m.: Hally said he's had numerous contacts with Kristina Bonefield on the phone. She is Anderson's sister. Monson is asking when he last spoke with her. Hally said he got a text a few days ago. Now the questioning is turning to a computer that was taken from Capone's business.
1:25 p.m.: Monson is asking Hally about his reports. Hally advised Anderson to get a protection order. Last time he spoke with her was April 16, Hally said.
1:15 p.m.: Court is back in session. Capt. Dan Hally will resume his testimony. Capone was arrested May 6, 2010, in Moscow for an alleged firearms offense, Hally said. Monson, who represents Capone, is questioning the Asotin County captain.
12:25 p.m. Capone wanted an attorney present during questioning about alleged firearms offense. Hally asked Capone to talk about Anderson's disappearance. Hally told Capone he was going to tell him that he killed Anderson and where her body was. "You got one of those correct," Capone allegedly told Hally, indicating he didn't kill her. The body has never been found, Hally said
Court is now in recess until 1:15 p.m.
12:15 p.m.: Capone's demeanor changed when he first saw Detective Jackie Nichols. He started crying and said he wanted Anderson's vehicle removed from his shop. Nichols looks somewhat like Anderson, Hally said. Anderson's Dodge Stratus was parked at the Moscow business.
The Yukon she was driving was found April 21 in north Lewiston, Hally said. Her purse was in the vehicle. Contents were sealed by police.
During the contact at the shop, Capone allegedly told Hally he put grease on Anderson's head. The statement was out of the blue, Hally said. "Things weren't supposed to turn out like this," Capone reportedly told Hally.
Capone was later interviewed at Moscow Police Department after he was arrested at his shop by the ATF in early May.
12:10 a.m. Capone's shop was spotless, according to Hally. Loft area was covered with tarps. One was dirty and other appeared new, Hally said. Capone told Hally he contacted Clarkston Police Department on April 19 to check on Anderson. No record of that call was located, he said.
Noon: Hally said he became aware she was missing on April 19. He had her cellphone pinged. Based on ping, police went to general area and conducted a search off Warner Avenue and Gun Club Road in Lewiston. Nothing found.
Hally spoke to Capone on April 20 at his shop in Moscow. Capone told him he was involved with stalking and he used Spoof.com. He believed Anderson was doing same thing to him, Hally said. Through the program, you could select voice types and what phone numbers showed up on Caller ID.
Capone told Hally that Anderson went to his shop on Friday afternoon to retrieve her vehicle. She left to go computer shopping and returned. Capone said Anderson had purchased a six pack of beer. Capone said Anderson had four and he had two, Hally said. Capone told police Anderson left around 7 p.m. for a computer store and then called him to say she was headed home.
11:45 a.m. Anderson called Hally on Friday evening, about 6:58 p.m. She told me she was going to Moscow to meet with Capone and tell him their relationship was over, Hally said.
11:40 a.m. Next witness is expected to last 45 minutes or more. Capt. Dan Hally takes the stand. Hally said Rachael Anderson met with him in April 2010. She came to Asotin County Sheriff's Office on April 13 to discuss stalking and harassment. She was scared, Hally said. They planned to meet again on Friday the 16th. Anderson left a voicemail, saying she couldn't meet. Hally said he spoke to her and she said she was busy gathering materials for him. Hally told her he believed Charles Capone was doing the stalking. She was still believing it was another individual, Hally said.
11:35 a.m. Monson is questioning Porter. He said he didn't call police about conversation with Stone. Porter said Capone fixed his car, but they never talked about any of this.
Porter has his arms crossed and is leaned back in witness chair. Said he never saw a gun or received one from Stone.
Kovis is now asking Porter questions about the interview. Porter said he doesn't want to be here today. Kovis is asking him if he lied on tape recording. "I don't even recollect the conversation until I heard it today," Porter said.
Kovis implies Porter's wife was looking for reward money.
Thompson asks him why he doesn't want to testify. Porter said he truly doesn't remember conversations, and his girlfriend is the one who called police - not him.
He and his former girlfriend are now separated.
11:30 a.m.: Porter said he didn't want to be associated with "people like this." Besst asks him to call David Stone and allow the conversation to be recorded. Porter agrees, but said he wants to talk to his girlfriend first. Porter said he didn't want to put his family at risk. They talk about working something out.
11:25 a.m.: Stone allegedly asked Porter to "bump off his wife," according to a recorded interview now being played in court. He offered $10,000 and Porter says he declined to do it. Came back in March and told Porter about the pact with Capone, Porter said.
Tape is still playing. Porter had heard Charles was related to Al Capone, and he didn't want to get involved, he told Besst.
11:10 a.m. Interview with Chris Porter at Latah County Sheriff's Office is scratchy. Porter tells Besst he has family in this area and knew Stone when they worked for city of Moscow. Porter said he didn't want to be called into court or asked to sign anything. Not willing to put his family's life in danger, Porter told police.
Stone came over to my house and asked me how much it would cost to kill his wife, Porter said. I told him I wasn't going to do that. Blew him off after that, Porter is saying on tape. Says he didn't want to be involved. Porter told police Stone allegedly told him that he and Capone had a deal to kill each others' wives. Stone called me on April 14 and asked me if I wanted to ride down with Lewiston with him. He never asked me to ride to Lewiston before. Stone said a gun was over at Charles' mechanic shop, according to Porter's recorded interview.
Saw Anderson's picture on the news. She looked familiar, Porter said. Saw her at Capone's shop when he was having his car worked on.
10:55 a.m. Detective Tim Besst on stand to talk about Chris Porter. Porter was on the stand briefly, but Thompson dismissed him and called on Besst to clarify some items. Porter is an acquaintance of Capone and Stone, and he was ordered to be here.
Thompson wants a recorded interview played in court because Porter said he didn't remember conversations with police. Defendants' attorneys both object. Judge overrules objections. Porter is being brought back into courtroom and the recording will be played.
10:40 a.m. Anderson had talked to Asotin County Sheriff's deputies about stalking incidents. Combs said Capt. Dan Hally was lead investigator at that time. Remembers Capone did not want initial interviews with police recorded. Capone and Stone interviewed at Moscow Police Department; those interviews were recorded. Combs has been excused.
10:30 a.m. Clarkston Police Officer Dan Combs is on the stand. Thompson is questioning him. Met with Griswold at Anderson's house on April 20, 2010. Collected a computer tower, answering machine, toothbrush and hair.
Combs was off duty on the 19th. He was called by Chief Joel Hastings about missing person case, asked to assist Asotin County on the case.
10:20 a.m.: Griswold said she and her mom discussed online stalking applications. They tried to look up cellphone numbers used to text Anderson. We were trying to figure out who was stalking and harassing her and their method, Griswold said.
Barker asked if Capone ever babysat for her. Amber said Charles Capone may have been present when Anderson was babysitting, but she never asked him to babysit.
"I don't think Charles Capone is a good person," Griswold remembers telling her mom when they first started dating. Anderson disagreed and told Capone about the comment, Griswold said.
When asked if he ever fixed her car, Griswold said no, but he was helpful, kind and seemed friendly.
Kovis is questioning her now. Griswold said she has never met Stone. Met many people at church in Moscow with Anderson and Capone, but she doesn't remember meeting Stone. Never heard Anderson speak of him.
10 a.m.: Griswold said she assumed Capone would help search since "he was my mom's husband." He didn't help, Griswold said. He was quiet and didn't say much when Griswold contacted him about mother's disappearance. "He didn't seem very concerned."
Barker is questioning her now. Griswold said Anderson was driving Yukon and her car was getting fixed by Capone in Moscow. She said she waited outside her mother's house four hours on the 19th, along with her sister, Ashley Colbert. She returned to house later in the week with a Clarkston officer and collected samples of her mom's hair around sink and floor.
9:40 a.m. Amber Griswold of Pomeroy is on the stand. She is Anderson's oldest child. Said she talked to her mom a few times a week and saw her frequently. They both worked for Pathologists Regional Laboratory, but not at the same times. Younger sister is Ashley Colbert, who is also here today.
Met Capone in 2009 when he was dating Anderson. Griswold said Capone and Anderson started dating in February or March of that year. They got married in October, eloped in Coeur d'Alene.
Last contact with her mom was April 15, 2010. She came to a birthday party at Amber's house. She was driving a white Yukon.
Griswold was at school at Lewis-Clark State College on Monday, April 19, 2010. Path lab called to say her mom didn't show up for work that day. She immediately left school, called mom but got no answer, and went to a friend's house. She called police after checking her mother's house in Clarkston shortly before noon.
Griswold said she called Capone multiple times that day. Had to call Clarkston police again because officer didn't respond. Later that day, Asotin County responded and she was able to fill out missing person report. It took about four hours to speak with law enforcement. She was afraid to go in house because she thought she would find her mom's dead body.
Detective Jackie Nichols went in house with Griswold. Nothing looked out of place. They began trying to locate her mom's cellphone through GPS tracking and searching for Anderson.
9:30 a.m.: Wilcox said he asked for a divorce because Anderson said she didn't love him and they were fighting over money. Went through a bankruptcy; she racked up credit card debt, he told Monson. Very brief interactions with Capone and he's never met Stone.
Kovis confirms Wilcox does not know Stone. No further questions, witness excused. Next up: Amber Griswold. She will be questioned by Michelle Evans of the Latah County Prosecutor's Office.
9:20 a.m.: Bill Wilcox of Clarkston now on stand. He and Anderson have a 14-year-old son together. He said they were together eight years, married for two. Marriage ended 12 years ago. Anderson was in frequent contact with him. Tried to call her the weekend of April 17-18, 2010. Unusual to get no response, he said. Went to drop son off at Anderson's house on Monday morning, April 19, 2010; no one was home. By mid-morning, it became apparent she was missing.
Monson questioning him. Wilcox said he's always been able to get in touch with Anderson by phone. Capone went to Wilcox's house earlier that year and asked what was wrong with Anderson. Wilcox said he asked him to get off his property. Asking about Anderson's drinking habits. Wilcox said she was a social drinker, but there was no set pattern. They met in a bar when he was a musician and knew each other 21 years.
9:10 a.m.: Plunkett said Anderson told him David Stone was parked near her house observing her in Clarkston in late March or early April of 2010. He is being questioned by Charles Kovis, Stone's attorney. Kovis and Plunkett are engaged in a hot discussion about whether he remembers anything else about Stone. Judge said it's time to move on.
9 a.m.: Message was very short. She said she had a question for him and to give her a call. When he tried to return the call, she didn't answer. D. Ray Barker is asking him questions now. He represents Capone. Primary reason they got divorced was their age difference, Plunkett said. They are 25 years apart in age. He said it was Anderson's idea to get divorced and she had started a limited relationship with a co-worker. Anderson was 40 when she disappeared. No physical relationship between Plunkett and Anderson after divorce, he said.
8:50 a.m.: Plunkett still on stand. Thompson is asking him about the week Anderson disappeared. She brought their son to his house on Thursday. She was supposed to work on a project with him on Saturday. She left a message on his cellphone shortly after 8 p.m. Friday night, and he never heard from her again.
8:40 a.m. State calls Dennis Plunkett of Clarkston to the stand. He is a former husband of Anderson's. They were married for five years until March 2007, and they have a 9-year-old son together. Plunkett said they were only divorced legally, still stayed together as a family, sharing custody and daily contact by phone or in person. He knows Capone and is talking about when they met in 2009.
8:35 a.m. Mark Monson, representing Capone, wants witnesses to wait outside. Prosecutor William Thompson Jr. asked the judge to allow Amber Griswold to remain inside. Monson is now talking about the media. He is concerned a television microphone is so close it could pick up private conversations at the defense table. Judge just told the media to remove microphones from the table. Griswold has to leave until she testifies.
8:30 a.m.: Amber Griswold, the oldest daughter of Anderson, is here, along with detectives from Asotin County, Capt. Dan Hally and Detective Jackie Nichols. Magistrate Judge John C. Judge will be on the bench. Courtroom No. 3 is full of activity. The defendants just entered the room, dressed in orange jail garb.
8:15 a.m. Attorneys, reporters and courtroom staff are setting up at Latah County Courthouse as preliminary hearings for Charles Capone and David Stone are about to begin. We will be updating this blog throughout the day. The defendants have not arrived yet. The two Moscow men are facing murder charges in connection with the disappearance of Rachael Anderson, a Clarkston mother of four, who has been missing since April 16, 2010. She and Capone were in the process of getting divorced when she vanished.© 2013 The Lewiston Tribune. All rights reserved.
07/30/13 5:19 PM
5:30 p.m.: Seat belts were adjusted for a taller person, Mooney said. Evans said she has more for this witness. Judge said court will break now and resume in the morning at 8:30 a.m.
Lewiston Tribune will have a full report in Wednesday's paper and more from the courtroom tomorrow.
5:25 p.m. Blood spot on paper was submitted to state lab. Copy of Capone's driver's license was in Anderson's purse. Receipt from a Lewiston bank was found in Yukon. Appears Anderson went to an ATM about 4 p.m. Friday afternoon, the day she disappeared.
Going over everything found in vehicle right now5:15 p.m.: Mooney said he found a black purse, tip of a glove, and a piece of paper with blood on it.
Direct questioning will begin, judge said. Mooney works for Idaho State Police in Lewiston. Evans is asking about his background.
On April 21, 2010, Mooney joined task force to investigate disappearance of Rachael Anderson. Yukon was located that day. Mooney helped search the vehicle for evidence. He video-taped and photographed process.
The vehicle appeared to be pretty clean, some dirt and debris in wheel wells, Mooney said. Pink handbag was found, along with legal documents. Notes on stalking and correspondence with Asotin County Sheriff's Office and divorce papers were in bag.
4:50 p.m.: Seth Richman has been called to stand. He used to work at O'Reilly's, a parts company in Moscow. It used to be called Schucks. PMS had an account with the company. He is being asked if any parts were ordered on the evening in question. There were receipts from PMS that day, he said. Invoice indicates an alternator was ordered for a Nissan pickup-truck at 11:37 a.m. on the 16th. Only two parts were ordered that day from Capone's business. Other invoice was at 6:52 p.m.
4:45 p.m.: Alisa Stone has been testifying while looking at her statement. Judge said she has to testify about what she remembers, not by reading directly from her statement.
She was told Anderson went back to Lewiston in her borrowed vehicle. Stone told her Capone was somewhat upset because he wanted to return Yukon to its owner. Alisa said she went to be around 11 p.m. and her husband got home at approximately 12:30 a.m.
Monson is asking her about Mingles. She said her recollection is David Stone said he just dropped Capone off and didn't go in. He was home for 30 to 45 minutes on the night of the 16th, she said. He was not out of sorts or agitated, she said.
4:30 p.m.: Alisa Stone said David took her Dodge Durango to Palouse Multiple Services for auto repairs on April 16, 2010. She called her husband at approximately 3 p.m. and 6 p.m. Kovis objects to questioning because she is being asked to testify about her spouse.
Thompson said communications are not confidential. They were shared with consent and knowledge of Mr. Stone. Kovis said it was a private conversation between married people.
Judge allows testimony to resume.
4:15 p.m.: Preliminary hearing for Capone and Stone is back in session in Latah County. Alisa Stone has been called to stand. She works as a grants manager for the city of Moscow and has been married to David Stone for the past six years. She is here under subpoena. Alisa Stone said she has life insurance. She said her spouse is beneficiary, and confirmed that he has a gun.
3:45 p.m.: Barker asks Gleason if it would be disturbing to find out he was being followed. Gleason said he would probably drive to police department and find out what was going on instead of driving to someone's house and trying to confront them.
Gleason is excused from the witness stand. Judge said court will reconvene at 4:10 p.m. after a short break. He wants to go "as long as we can go" today.
3:40 p.m.: Police went to Mingles to watch surveillance videos. They did not see Stone or Capone enter the business on the night in question, Gleason said.
3:30 p.m.: Thompson said Stone's comments were not accurate and an attempt to cover-up activities of April 16-17. There is direct evidence of agreement between Stone and Capone to kill each other's wives, the prosecutor said.
3:20 p.m.: Stone told Gleason he was at Capone's shop on April 16. He wanted Capone to work on his car, and Anderson's car was up on the rack. She showed up later that afternoon to pick it up. He said she was in a Yukon and never entered the shop. Stone told Gleason she left about 6 p.m. He went to city shop and ran errands and returned to Capone's shop about 7 p.m. At that point, the Yukon and Anderson were back. He went to get some food and when he got back, the Yukon and Anderson were gone. Capone finished working on her vehicle and pulled Stone's car into shop, according to what Stone told Gleason. They went to Mingles at 9 p.m. Stone said he left Capone there and went home to talk to his wife. He said he picked up Capone and they went back to the shop. They both left after midnight. Stone told Gleason they went to Shari's to have breakfast the next morning.
3:10 p.m. Scot Gleason, chief deputy for Nez Perce County Sheriff's Office, is now on stand. He used to be a Moscow detective. He was contacted on April 19 or 20 about missing person case.
He spoke to David Stone on April 22. Wanted to ask him about confrontation with Bruce the night before and why they were with Mr. Capone. First he ever heard they knew each other. Gleason visited Stone at the city shop where he works.
On the day before, Stone had to pick his daughter up at soccer. Capone called him, saying he needed a ride. All three agreed to go get something to eat. He happened to notice he was being followed and drove down to Sandpiper. His wife showed up while they were waiting for dinner to arrive. Stone and his wife, Alisa, went to confront Bruce. Capone and their daughter left in other vehicle.
2:55 p.m.: Stones went to another police officer's house because they were afraid about what was going on, Kovis said. Bruce said he doesn't know where they went.
Bruce said he's never had someone follow him while he was part of a mobile surveillance. Stone did not talk to him. He was pretty calm and trying to get his wife out of there, Bruce said.
Monson wants to know if Bruce was part of task force. He is not now, the officer said. Meetings took place at MPD, and he sat in a few, but he hasn't been involved in task force in a long time.
Bruce answers "yes," when asked if it is odd not to record an interview with a murder suspect. On redirect, he says there have been times when recording equipment didn't work.
2:50 p.m. Capone and two others went into a restaurant, Bruce said. David Stone was in a Buick, pulled up in parking lot and waved at officer. Durango left the parking lot and went north on Main Street. Noticed the Buick was following him. Drove home and the Buick parked in culdesac and a female got out of car. She confronted me about following Charles Capone. She said I was freaking out her daughter. I told her she needed to leave, Bruce said.
Kovis now asking questions. Stone's wife was in Buick. She confronted Bruce in an aggressive manner, Bruce confirmed.
2:40 p.m.: Hally is done with questioning. Next witness is Sgt. Dan Bruce of Moscow Police Department. Thompson is asking him about April 21, and assisting with surveillance of Charles Capone. "I was asked to keep an eye on his place of business", Bruce said. He was supposed to report on any strange activities. A Dodge Durango pulled up and Capone got in. Bruce caught up with the vehicle and followed it until Third and Main. Another police officer started following vehicle.
2:30 p.m.: Task force to find Rachael Anderson made up of Moscow, Clarkston, Latah County, Asotin County, Lewiston and FBI, plus Idaho State Police. Monson is asking why Asotin County took the lead. He wants to know if Hally told Bill Jollymore, a Clarkston reserve officer, that Griswold had complained about Clarkston's lack of response and wanted to work with Asotin County. I've read that report, Hally said.
Officer Combs said it was somewhat strange that Clarkston didn't handle case, Monson said. Hally said all of the agencies were involved. I was asked by police chief to be the lead on the investigation, Hally said. We didn't just run with it. Each agency assigned a particular area.
Monson said he is trying to figure out how this became an Asotin County case. "We were very active in this case. She is an Asotin County resident and she came to us for help," Hally said.
When he heard she was missing, Hally told Clarkston police to take this case seriously. No one was aware of Hally's conversation with Anderson the week before. I never said I had a personal interest in this case, Hally tells Monson. I did tell Jollymore she was having problems with her husband.
07/31/13 12:11 PM
Posted: Wednesday, July 31, 2013 8:26 am
Court is now in recess until 1 p.m.
12:05 p.m. Kovis is questioning Norberg about her knowledge of Stone. Norberg said Anderson had only mentioned him once or twice, referred to him as "Stoney" and that he was Capone's friend. Norberg did not mention Stone in her statement to Asotin County Sheriff's Office Det. Jackie Nichols or during her testimony today.
Norberg was excused.11:55 a.m. Norberg is beginning to cry in reaction to Vowels' question about the last time she had spoken to Anderson. Norberg said she had not seen or heard from her friend since April 15 when Anderson allegedly told Norberg she planned to go to Moscow to tell Capone she was going through with the divorce.
Norberg said she saw the Yukon Anderson had been driving surrounded by police when she went on a lunch break. Norberg said she was asked to identify Anderson's belongings in the vehicle and that it was very clean.
Anderson is an "organized chaos" person, Norberg said, and it was odd for no other possessions to be present in the vehicle.
11:50 a.m. Norberg said Anderson told her she had just left the counseling session and had spoken to Capone in the parking lot. Norberg said Anderson told her that the session was just about one minor incident that happened months before and were not discussing the overall issue with their marriage. Anderson had allegedly told Norberg that Capone was "obsessing" about that incident.
Monson told Judge that he intends to object to every statement following back-and-forth between Monson, Vowels and Judge about Norberg's testimony containing hearsay.
"And you probably should," Judge said.
11:40 a.m. Norberg said Anderson had told her when they spoke April 11 that she was going to attend one last counseling session with Capone before deciding whether or not to follow through with their divorce. Anderson told her she was going to the session to appease Capone but intended to get divorced regardless.
Monson continues to object to Norberg's testimony on the grounds of hearsay. Judge said Vowels needs to create a sufficient foundation for her questioning.
11:30 a.m. Jennifer Norberg, a longtime friend of Anderson, has now been called to the stand. Norberg said she and Anderson was "very close" and were talking "a very minimum" of three times a week when she disappeared.
Norberg spoke with Anderson on April 11, 2010 and said she was very frustrated, fearful and anxious about the stage of her life at that time.
11:28 a.m. Vowels asked Judge to consider the content of the documents rather than just as items found in the Yukon. Judge said he will consider the substance because he wanted to take note that Capone had received notice of the divorce. Gallina has been excused.
11:20 a.m. Monson again objecting on grounds that information Gallina may or may not have provided to his client is confidential, not public. Judge overrules again because the first page of the document being questioned is a transmittal form indicating the document was submitted to Asotin County Superior Court and Anderson.
11:15 a.m. Judge overruled the object and Mia Vowels, of the Latah County prosecutor's office, proceeded with questioning.
Monson continued the objection following Vowels question to Gallina that it was safe to assume he was representing Anderson in filing for divorce from Capone.
Judge has overruled the object again and left it to Gallina's discretion to answer.
Gallina responded that he was the attorney of record for Anderson at the time.
11:10 a.m. Bowser has been excused. The prosecution has called Scott Gallina to the stand. Gallina was Anderson's divorce attorney. Monson objected to his testimony because of attorney-client privilege.
11 a.m. Evans has gone back to questioning Bowser about the second cadaver dog, Kenobi. She's asking about Kenobi's training and certification. Bowser said Kenobi is trained for outdoors, wilderness-area cadavers and Pandora is trained for vehicular cadavers.
10:55 a.m. Kovis has begun his cross-examination and is inquiring about Bowser's education and training. She said she has a high school diploma and taken some criminal classes about preserving crime scenes and working with dogs.
10:50 a.m. Monson is now asking Bowser about a separate cadaver dog, Kenobi, who also searched the Yukon and did not detect the odor of decomposing human remains.
10:40 a.m. Evans is questioning Bowser's technique for using a cadaver dog. Bowser is explaining how she has trained the dogs to detect the scent of human remains.
Bowser said that when the dog detects a hint of an odor they have a change in behavior and then continue to search for an area with the strongest scent. When the dog detects that area, Bowser said she has trained them to lie completely flat to the ground.
Bowser said that it does not matter if a body is there, the dogs are trained to react the same way if there was a drop of blood.
Bowser and Pandora were contacted to search the Yukon on April 29, 2010. During the search, Bowser said there were two other cars present that she had Pandora circle. The dog did not detect anything.
Bowser said she then had Pandora circle the Yukon in a similar pattern and detected a change in behavior at the back of the vehicle. Bowser said after that, she had requested that the seals be broken of all three vehicles.
Bowser said Pandora again detected the scent in the back of the Yukon, jumped into the rear of it, then appeared be frantic in her search for something and wouldn't leave.
Bowser said Pandora then sat in the vehicle and barked at her, which is a sign of frustration at being unable to pinpoint the origin of a strong detection of odor.
10:18 a.m. Court is back in session and the prosecution has called Ronda Bowser to testify. Bowser was a member of the Clearwater Search and Rescue team for seven years and has trained four different cadaver dogs, including Pandora who was used in the Anderson search. She is no longer a member of the Clearwater Search and Rescue team.
Court is now in recess for the next 10 to 15 minutes.
9:57 a.m. Monson asked if Mooney could tell who's blood was found on the pieces of paper found in the Yukon and how long it had been there. Mooney said at the time he did not know whose blood it was but he has since had it analyzed and determined that it belonged to Anderson. Mooney said he could not tell how long it had been there.
Monson concluded his initial cross-examination by asking about DNA collected from the inside and outside of the piece of black glove found in the Yukon. Mooney said Capone and Anderson could not be ruled out from the DNA collected on the inside, and there were three people's DNA found on the outside. Capone's DNA was the main one found on the outside of the glove, Mooney testified.
9:45 a.m. Monson continues his cross-examination asking Mooney about a subsequent search of the Yukon on Sept. 8, 2010 during which Mooney said he and a forensic scientist used luminol — a test that detects blood by reacting to iron found in hemoglobin — to test for blood in the vehicle. Mooney said they did not detect any blood.
Monson then asked about any blood found on the green and brown tarp that Mooney said earlier he and Besst returned to inspect. Mooney said they did not see any blood and did not test for blood on it.
Monson inquired about a second tarp which Mooney said he did see a blue tarp that "appeared to be considerably older" and there was white overspray on it.
9:30 a.m. Capone's attorney, Mark Monson, is questioning Mooney now. Monson is asking him to verify the report he sent to Clarkston Police Department and who's handwritten notes were included.
Monson now inquiring about the size of the found black glove tip in the Yukon and whether the initial search of the Yukon was video taped.
Monson asked Mooney if he had found blood anywhere in the Yukon other than on the pieces of paper already discussed. Mooney said they did not despite having swabbed the door frame of the vehicle for what appeared to be blood.
9:15 a.m. Mooney said the evidence collected in the Yukon and from Anderson's home — a glove tip, piece of paper with blood on it, toothbrush and hair — was sent to an Idaho State Police lab for testing. Mooney confirmed the items tested at the lab and what he documented aligned.
Evans then asked Mooney if in his position with the Idaho State Police he has access to all the reports filed within the agency. Mooney said he does. Evans asked if he has seen a report from either Capone or Stone on April 16, 2010, regarding the disappearance of Anderson. Mooney said he has not.
9:05 a.m. Mooney, accompanied by Lewiston Police Department Det. Brian Birdsell, inspected the white Yukon that Anderson was said to have been driving the day she was last seen. Mooney said he and Birdsell set up an experiment to determine if the driver seat of the Yukon was positioned for a person of Anderson's height — 5-foot-4. A woman who was also 5-foot-4 sat in the drivers seat and Mooney identified a photo they had taken of the woman's right foot reaching for the gas pedal.
9 a.m. Mooney said of the receipts he and Besst collected from Capoone's shop, one was for a tarp. Mooney said they remembered seeing the new tarp.
8:55 a.m. Mooney said they further inspected the shop, including a loft that contained "a very new, very shiny" tarp. Latah County Sheriff's Office Det. Tim Besst assisted Mooney in the search. The tarp is brown and green.
While searching the shop's office, Mooney said they also found documents piled on top of a desk. The documents included a dissolution of marriage document for Capone and Anderson and a small claims report from Capone against Anderson.
8:45 a.m. Mooney is still on the stand. He has been identify images from inside Capone's automotive shop, Palouse Multiple Services in Moscow. Mooney said he found pieces of gloves in a bag in the bathroom of the shop and a pill bottle on a toolbox in the shop.
Mooney said they seized the bottle that contained 14 sleeping pills. The pills were issued to Carole Bogden.
8:40 a.m. Evans has shown Mooney a picture of Capone's white truck and Anderson's car both of which he searched. Mooney said he found a box of gloves and receipts in Anderson's car.
8:30 a.m. Magistrate John C. Judge has entered the courtroom here in the Latah County Courthouse for the second day of the preliminary hearings Capone and Stone. The defendants are again dressed in orange jail garb and accompanied by their attorneys. Latah County Senior Deputy Prosecutor Michelle Evans will begin the day picking up where she left off Tuesday with testimony from Idaho State Police Det. Mike Mooney.© 2013 The Lewiston Tribune. All rights reserved
07/31/13 2:42 PM
5:21 p.m. Court is adjourned for the day and will reconvene at 8 a.m. Thursday.
5:17 p.m. Judge said he doesn't want to say too much about the issue of the nonexistent recording, but to shed the best possible light on the situation is that there were a lot of different people working on the same case and something fell through the cracks.
"That was a pretty big oversight," Judge said.
5:13 p.m. Evans asked Fry that after the alleged statement from Capone arose that Moscow Police Department began preparing to find a body. Fry said yes.
Fry has been dismissed4:47 p.m. Barker asked Fry what he knew about an interview conducted at the Moscow Police Department with Capone by Hally and ATF agent Lance Hart on May 6, 2010 during which no recording was made. Fry said a recording was made of that interview but that recording no longer exists.
Fry said when Monson showed up to the interview, he and other law enforcement officers believed they had a conflict with the recording of the room and attorney-client privilege.
Fry said they made a conscious decision to not record while Monson and Capone were speaking candidly in the interview room. Fry said the reason for that was to preserve attorney-client privilege and so the police did not obtain information they were not privy to.
"So why wouldn't you have put Mr. Capone and me in a separate room that wasn't being recorded?" Monson asked.
Fry said looking back he wished he had put them in a different room.
"We've been drilled for years that attorneys and clients have privileges," Fry said following additional questions from Monson.
The interview in question involved the alleged passive admission from Capone that Hally testified about Tuesday. During that interview, Hally testified that he told Capone that he was going to tell Hally that Capone killed Anderson and where the body was, and Capone replied that he got one of those things right.
4:42 p.m. Fry said he went with Asotin County Sheriff's Office Cpt. Dan Hally to Capone's shop April 20, 2010, and looked into a purchase made on Capone's debit card. Fry said the purchase was for a six-pack of beer.
4:37 p.m. Dethman has been excused and Lt. James Fry with the Moscow Police Department has been called to the stand.
In 2010, Fry said he was the detective sergeant for the Moscow Police Department.
4:32 p.m. Dethman said Stone had worked for his department for about five years and during that time he ran the street sweeper, dump truck and snowplow, along with the backhoe for the purpose of the front loader.
Kovis asked if Stone was then let go. Dethman said he was. Kovis asked if it was because he dug a hole, and Dethman said that was not. Kovis asked if Dethman was upset because Stone had dug the hole. "I was kind of baffled because it was so deep," Dethman said.
4:27 p.m. Dethman said he left Stone to practice with the backhoe after he showed him how to dig a grade, but when he came back Stone had dug a hole instead. Dethman said he had Stone fill the hole before he left for the day.
4:20 p.m. Spence has been excused. The next witness to testify is Gene Dethman. Dethman works for the City of Moscow street department and has been employed there for 20 years.
Dethman said employees in his department are trained to use various pieces of equipment, including sanders, street cleaners and backhoes. Dethman said he knows Stone and met him about six years ago. The two worked together for the city.
Dethman said he tried to train Stone in how to run a backhoe. Stone approached him with interest in learning how to use the equipment. This occurred, Dethman said, a couple weeks before Anderson's disappearance.
4:10 p.m. Bill Spence, owner of Spence Hardware & Supply, is now on the stand. Evans is questioning him about how records are kept at his store.
Spence said Capone has an account with his business. Capone visited his store April 17, 2010, and made a purchase that was put on his account. Spence said Capone then paid off and closed the account.
Evans is showing Spence a receipt from his store. Spence identified it and read the time, date and item sold for the receipt — 8:39 a.m. April 17, 2010, for a green and brown tarp.
Spence said Capone said he wanted to close the account and he did not want anyone else to charge on it.
4:05 p.m. Kovis is now questioning Donner about Capone's business — how many customers come in, if it was a good business and if it's common for Capone to meet with customers in the office, outside or behind closed doors. Donner said it was common. Kovis concluded the questioning for Donner and he has been excused.
4:03 p.m. Capone is conversing with Monson as Barker cross-examines Donner about statements made earlier in his testimony.
3:50 p.m. Evans is asking Donner what Capone had said about his relationship with Anderson after they had split. Donner said Capone would tell him how much he loved Anderson.
Evans has concluded her initial questioning and Barker is now cross-examining the witness. Barker is asking if Donner was an employee of Capone's. Donner said he was an employee prior to when he started working for FedEx in June 2010.
3:45 p.m. Evans asked Donner if he knows Stone. Donner said he does as Capone's friend and he has seen him eight or 10 times at Capone's shop. While Stone was at the shop, Donner said he would just chat with Capone.
Evans asked Donner if there was a period of time prior to when Anderson went missing where Stone's visits to the shop became more frequent. Donner said it wasabout once a week and the conversations were held behind closed doors.
3:40 p.m. Donner said he was in Riggins at the jet boat races during the weekend Anderson went missing. Capone and Anderson had gone with Donner and his friends the year before. Donner said he and his friends had asked Capone to come again in 2010, but Capone said he had too much work to do.
Donner said the last day he was in Capone's shop was Thursday, April 15, and he had planned to be gone from Friday to Sunday night. Capone knew that was Donner's plan, he said.
Donner said Capone told him over the phone that weekend that Anderson was missing and he couldn't get a hold of her.3:30 p.m. Donner said after Capone and Anderson were married, Capone was living with Anderson in Clarkston. Capone later moved to Viola when he and Anderson began having problems, Donner said. During that time, Donner said Capone asked him to check on Anderson about 20 different times.
3:25 p.m. Donner knew Anderson prior to her relationship with Capone. Donner said she worked for her father. Donner said that he ran into Anderson in the spring of 2009 at a bar in Lewiston. Capone was with him and Donner said he introduced the two of them. Capone and Anderson started dating after that, Donner said.3:20 p.m. Court is back in session and Nathan Donner has been called to the stand. He used to work for Capone in his shop. He would also use Capone's shop to do his own detail work. Donner is now employed by FedEx.
3 p.m. Barker asked Wagner if a person who took Ambien with alcohol would cause a buzz, but Wagner said it would likely not. Wagner said it could cause an opposite effect. Wagner has been excused.
Court is now in recess.
2:52 p.m. Wagner is describing the effects of Ambien, a sleeping drug. He said the effects of the sleeping pill would be intensified if alcohol was added on to it.
Wagner said in the past two years it has become more common for women to be prescribed a lower dose of Ambien because it has been discovered that women are more effected by the drug.
2:48 p.m. Daren Wagner was called to the stand. He is register pharmacist, attended Washington State University and has worked for 20 years at the Rosauers pharmacy2:45 p.m. Carole Bogden said she was surprised to see the evidence and that her pill bottle was found in Capone's shop. She said she doesn't know how it got there.
Kovis asked Carole Bogden if she knew Stone. She said she did not. Carole Bogden has been excused2:25 p.m. Carole Bogden said she uses sleeping pills and has done so for about 15 years. She said she gave Capone some of her sleeping pills about a week or more before Anderson disappeared.
Carole Bogden's testimony to giving Capone her prescription medicine — a controlled substance — caused Kovis, as a public defender, to bring attention to the fact that it is illegal to do so. Judge agreed and quickly briefed Carole Bogden that anything she says could be subject to prosecution. Latah County Prosecutor William Thompson Jr. said the state had no intention of prosecuting the woman based on her testimony today.
2:19 p.m. Robert Bogden has been excused and his wife, Carole, was called as the prosecution's next witness. She is originally from France, speaks with an accent and English is her second language.2:14 p.m. Vowels asked if Bogden had ever transported a dead human body in the back of the Yukon. Bogden said he had not.
2:12 p.m. Kovis asked Bogden if he knew Stone and Bogden said had never met him and Capone had never mentioned a "David Stone." The only name Bogden said he heard was "Stoney Dave."
2 p.m. Capone moved out of Bogden's home on April 20. That was the same day Bogden went to Capone's shop to talk with him when the police were there, he said. Bogden said he became concerned for the safety of his family given conversations he had with Capone about the stalker and what was being reported on the news.
1:55 p.m. Prompted by questions from Capone's second attorney, D. Ray Barker, Bogden said he turned over his Yukon over to Capone about three weeks before April 16. Prior to doing that, Bogden said he detailed the vehicle. When detailing the vehicle's interior, Bogden said he only focused on the front portion and did not touch the back. He also cleaned out the tire tread, wheel wells and rims. Bogden said he did an "excellent" job cleaning the Yukon.
1:45 p.m. Vowels is questioning Bogden about conversations he and Capone had surrounding Capone's ability to possess a gun. Bogden said he did not know that Capone was a felon and unable to have a gun.
Capone also mentioned the cops had accused him of putting sleeping pills into Anderson's drink, Bogden said. Capone also asked Bogden if DNA could be found in sweat. Bogden said that during that conversation Capone did not look at him, which was "very unusual" because the two had a visual and interactive relationship.
1:35 p.m. Bogden said his wife told him that Capone had told her that Anderson had taken off with the Yukon. At that point, Bogden said he got a feeling that something wasn't right.
Capone was still staying with Bogden's family when Anderson went missing. Bogden said he went to Capone's shop when police where there talking to him about Anderson's disappearance. Capone was "very defensive" at the time, Bogden said.
1:30 p.m. Bogden is the owner of the white Yukon that witnesses have said they saw Anderson driving the day she went missing. Bogden said he saw Anderson driving the Yukon at about 6:15 p.m. April 16, 2010, on Third Street in Moscow when he was at Baskin Robbins with his two children.
1:25 p.m. Bogden said Capone was very concerned about someone who Capone said was stalking Anderson. Because of Bogden's line of work, he said Capone asked him a lot about collecting information about collecting information from phone numbers, tracing calls, how call blocking worked and how to track phones based on where they were purchased. To him, Bogden said it seemed like a normal conversation that didn't raise any red flags.
1:15 p.m. Bogden said he and Capone had a conversation about Capone being concerned that Anderson was being stalked and watched her go into her home alone one night. Bogden said he told Capone that he was basically stalking Anderson and that nothing good could come of it. In the same conversation, Bogden said he asked Capone if he had a gun and Capone told him he did. Bogden said he told Capone he needed to get that out of the equation.
1:10 p.m. Capone moved in with Bogden and his wife, Carole, in February 2010. Bogden said he felt a growing friendship between he and Capone and Anderson from the time spent working on his vehicle. When he learned Capone was living in his shop, Bogden said he invited Capone to live with him because that was not suitable for his friends.
1:02 p.m. Court is back in session and the prosecution has called Robert Bogden to the stand.
Bogden works as a molecular microbiologist. He and Capone met from initially when Capone was working on his vehicle. They later became friends. Bogden said he extended his home and help to Capone when he learned Anderson and Capone were going through a divorce
08/01/13 1:05 PM
Posted: Thursday, August 1, 2013 7:55 am |
12:02 a.m. Court is breaking for lunch and will reconvene at 1:15 p.m.
11:53 a.m. Fager said the recording equipment cannot be totally shut off effectively. He said the audio or video can be turned off or not monitored, but he believes the server is always recording. Monson asked Fager about the process of getting the recording off the equipment. Fager explained how to do it and said it is possible for the recording to be cut for a specific time period. Fager said the majority of the officers do know how to use and save the recording.
Vowels asked if when the recording is being saved, do officers listen to a little of the beginning and end. Fager said they do, but not always right then. In the event that it is a long interview, Fager said, they will cut it, burn the recording to a disc and then review it later.Fager has been excused.
11:48 a.m. Fager said he was involved with a search warrant sent to AT&T by Moscow Police Department Lt. Dave Lehmitz.
Monson is now asking Fager about the interview on May 6, 2010, at the Moscow Police Department. Fager said he did not witness the interview between Hally and Capone. Monson asked if heard about it afterward. Fager said he had but doesn't remember from who.
Fager said he did not know about any malfunction with the equipment that day. He is now explaining how the recording equipment works.
11:44 a.m. Monson questioned Edwards further about the 50-statea canvas and Edwards said in that search they detected no hits since 2007.
Edwards has been excused and Sgt. Bruce Fager from the Moscow Police Department has been called to testify.
11:34 a.m. Monson asked if this database search was the only involvement he had in the case. Edwards said he was involved again recently.
Monson asked Edwards about that involvement, but Edwards said he is not allowed to speak on that based on the subpoena he was issued to be present today. Monson said Edwards is not directly answering his question. Judge asked Edward to elaborate. Edwards explained he is authorized to talk about the 50 state canvas and database search. Latah County Prosecuting Attorney William Thompson Jr. said based on his understanding this issue is out of Edwards' hands. Judge agreed. Monson is questioning Edwards on his direct testimony.
11:26 a.m. Houser has been excused.
Ryan Edwards has been called to the stand. He is an agent with the FBI. He is currently a special weapons and tactics officer, along with investigator and task force coordinator.
He conducted a database search for Anderson. He searched her birthday — June 11, 1969. He said there were no hits from any of the government agencies after April 20, 2010. The only hit came from a credit bureau in October 2010, which resulted from a failure to pay a credit card bill.
11:05 a.m. Judge has returned to the courtroom and is back on record. Houser has been asked to return to the stand as well.
Judge is asking if Evans or Monson have any additional questions before making their cases about why or why not the conversation between Capone and Houser at Qdoba is private and privileged information.
Monson asked Houser if he and Capone regularly met at Qdoba for counseling and if he remembered anyone approaching either him or Capone at the time. Evans is now asking Houser about where they were sitting in the restaurant and if he remembered the number of people passing by them.
Evans is now making an argument saying that the clergy privilege is different from attorney-client privilege because there is an objective and subjective standards. She said the objective standard is that it's private and the subjective standard is the intent — she said she does not think these standards have been met.
Monson is saying because Capone and Houser sat apart from everyone else and made an effort to distance themselves from other customers creates the intent for it to be private. He said he thinks this is clearly a situation that Capone and Houser intended the conversation to be private.
Evans is comparing the conversation between Capone and Houser to a conversation between her and her husband. She said they are both occurring in a public space and while they would like it to be private, she understands if someone walks by and hears it is no longer private.
Judge is responding to the arguments. He said Evans is arguing for a narrow interpretation of the clergy privilege, but that there is strong privilege in Idaho with no exceptions.
After reviewing the cases, Judge said he thinks if a religious privilege is lost because a person walks by then it is a disservice to the privilege. Judge is sustaining the assertion of privilege.
Evans attempted to provide proof, but Judge said he made his ruling.
10:42 a.m. Judge, Evans and Monson are discussing whether or not a counseling conversation between Capone and Houser at Qdoba Mexican Grill in Moscow was private or not and allowed to be discussed during Houser's testimony. Monson is arguing that the conversation is privileged because it occurred between a religious leader and a member of his congregation.
Judge has taken a recess to review a memo from the prosecution.
10:31 a.m. Court is back on the record.
The prosecution has called John Houser to the stand. Houser is the pastor for the Crossing Church and has been for nine years. Houser said he knows Capone from his time as his pastor and as his friend.
Houser said he knows Anderson as an acquaintance and as a woman Capone dated, then later married.
Houser said he also knows Stone, calling him "Stoney," as a friend and member of his church.
Capone started attending his church in about 2005, Houser said. Anderson also attended the church from time to time after she and Capone started dating.
Evans asked if Houser had counseled Anderson and Capone. He said no, but that he and Capone would have conversations at Capone's shop. Houser said the private counseling between he and Capone and Capone's church attendance went down and eventually stopped in mid-March 2010.
Houser said Capone called him twice on April 19, 2010 and that's when he learned that Anderson was missing. He missed the first call, but said he spoke to Capone at about 7 p.m. Houser said he had a conversation at-length with Capone the following day, April 20.
Evans asked if Capone had attended church the day before telling Houser learned that Anderson was missing. Houser said he did and sat at his normal spot. Capone was wearing sunglasses and left early, Houser said.
Court is now in recess until 10:25 a.m.
10:06 a.m. Monson concluded his questioning with a list of names of people who Glass may or may not have known from his time in jail. Kovis followed simply asking if in the time Capone was "basically spilling his guts" to Glass, did he ever mention a man named David Stone. Glass said no.
Evans is now asking when Capone allegedly told Glass that Anderson was "doing nothing but pushing up daisies." Glass said that occurred after the last time he spoke with Det. Nichols, but he wrote it down.
Monson asked where he kept those notes, and Glass said under his bunk mattress.
Glass has been excused.
9:53 a.m. Monson is continuing his cross-examination by asking Glass about who was in the jail pod with him and Capone. Glass said he was moved out of Capone's pod in about February 2013.
Monson asked Glass if he had talked with anyone about Capone's alleged statements or about a reward for finding Anderson. Glass said he did not and the only instance involving the reward he could think of would be when he and the other inmates were trying to get Capone riled up about Anderson's disappearance. That's when Capone allegedly said he buried the body so deep they wouldn't find it, Glass said.
9:37 a.m. Vowels asked if Glass was being rewarded in any way for testifying today. Glass said he was not.
Monson is now cross-examining Glass asking him about his criminal background.
Monson is asking if Glass was expecting to get a deal on the charges he was facing at the time he met Capone. Glass said he was not. Monson asked if Glass was arrested with a co-defendant and Glass said he was — his girlfriend — and she was found guilty of the charges. Glass said it was because she made statements to the police and he did not.
Monson has inquired about communication between Glass and Asotin County Prosecuting Attorney Ben Nichols — who is also married to Det. Jackie Nichols.
Monson is asking Glass about the specific dates that he and Capone had conversations including the alleged statements regarding cutting up a body, how he would kill someone and about Anderson "doing nothing but pushing up daisies."
9:32 a.m. Vowels is asking Glass how many times Capone told him he messed with Anderson's car. Glass said there were a few times but the only one he remembers specifically was when Capone said he unscrewed the oil filter.
Capone also gave Glass a book that "hits pretty close to home," Glass said. The book was called "Tailspin" and was about a woman named Rachael being poisoned and her body being dumped in a river, Glass said. When Glass read that much of the book, he said he looked up and Capone was watching him and winked after saying that it hit close to home. Glass said Capone also allegedly told him that's why you bury the body instead of putting the body in water because it might come back.
9:23 a.m. Glass said he and Capone had a conversation about serial murders and that Capone allegedly told him how he would kill someone, including choking or poisoning them, waiting 12 hours for the blood to coagulate and then chop the body up in a tarp so the blood doesn't splatter.
Glass said he talked with Nichols a second time after Capone allegedly made a comment to another inmate saying, "Don't make me chop up another body."
The third time Glass talked with Nichols, he said, was prompted because Capone allegedly told Glass he was "spoofing" Anderson, messing with her car and watching her house.
9:18 a.m. Brent Glass has been called to the stand. He knows Capone from Asotin County Jail and has identified him in court today. Glass said the first time he met Capone in December 2012. They were in the same pod for a couple months. Glass said he was in jail on charges of second-degree burglary and second-degree theft. He said he was not convicted of those charges.
Glass said he and Capone had a good relationship because they both disliked Asotin County Sheriff's Office Det. Jackie Nichols.
Evans is questioning Glass about how he eventually talked with Nichols and why. Glass said he has talked with the detective three times and the first time was because Capone allegedly made a comment about barely strangling Anderson and that they would never find a body.
Glass said Capone "winked" at him after saying Capone allegedly said it wasn't like he was trying to kill her when he allegedly strangled her.
9:16 a.m. Birge has been excused.
9:08 a.m. Birge said Capone had a friend pick up the computer on April 16, 2010, but he could not identify him in the courtroom.
Birge said he received a message at 7:15 p.m. from Capone about needing help with his computer because he had work to do during the weekend. Birge said Capone sounded like he was in a hurry in the message, but that it wasn't uncommon with business owners who have computer problems. Birge said Capone did not mention Anderson during the message.
9:03 a.m. Besst has been excused and Kevin Birge, former owner of Computer Crazy in Moscow, has now taken the stand.
Birge said he knows Capone and Anderson and would work on Capone's computers for his shop. On April 16, 2010, Birge said a computer from Capone's shop was dropped off and picked up from his store.
8:57 a.m. Kovis is now cross-examing Besst about his knowledge of Stone's involvement and an interview with Stone on May 6, 2010. Kovis then asked Besst if he had reason to believe Anderson was dead and if he had notified a coroner. Best said he had not because he would need a body to do so.
8:51 a.m. Besst said he did not make a report about the interview between Hally and Capone and does not know if anyone else did either. Besst said he is positive he talked with other officers about that statement but doesn't remember who.
Barker is cross-examining Besst now and asked if he was a part of a conscious decision that Fry referred to in his testimony Wednesday. Barker is referencing a statement Fry made during his testimony about consciously deciding not to record in the interview room that Capone and Hally were in after Capone's attorney, Mark Monson, arrived based on attorney-client privilege.
8:46 a.m. Besst was present during Wednesday's hearing and witnessed Moscow Police Department Lt. James Fry's testimony. Barker is asking if he had knowledge that there was no recording of that interview. Besst said he did not know if there was or wasn't a recording.
8:40 a.m. Evans asked Besst if he has the ability to access all the records at the Latah County Sheriff's Office and if he had seen a report from either Capone or Stone about Anderson's disappearance. Besst said he does have access and has not seen any report.
Evans is now asking about the interview at the Moscow Police Department on May 6, 2010, between Capone and Asotin County Sheriff's Office Capt. Dan Hally. That is the interview that Hally alleges Capone made a passive confession about knowing where her body was located.
Besst said he did overhear that interview and heard Hally saying something to the affect of "Today you're going to tell me you killed Rachael and you're going to tell me where the body is," and Capone allegedly responded by saying Hally had one of those right. Besst said when he heard that it caught him off guard because he did not expect for Capone to say that.
8:38 a.m. Latah County Senior Deputy Prosecutor Michelle Evans is questioning Besst about his search of Capone's automotive shop — Palouse Multiple Services in Moscow — on April 22, 2010. She's specifically inquiring about receipts found and the green and brown tarp.
Besst said they did find a receipt for a green and brown tarp on the day the search warrant was served. Besst said they returned the next day to inspect the tarp further.
8:32 a.m. Latah County Sheriff's Office Det. Tim Besst has now been called to the stand. He has worked with the sheriff's office for about 18 years, 10 of which have been as a detective.
8:30 a.m. Voss is now being questioned by Barker about an offer he made to wear a wire. Voss said he did make that offer, but officers did not think it was a good idea because of the thin and minimal clothing in jail.
Stone's attorney, Charles Kovis, asked Voss if he knew Stone or if Capone had ever mentioned him. Voss said no to both.
Voss has been excused.
8:25 a.m. Barker is referencing Voss's statement now and asked what he meant by Capone wanting to be the top dog in jail. Voss said there is a pecking order in jail and Capone "just had that demeanor" of working toward being the top in their pod.
Voss said he had five days left in jail when Capone made the comment to him and he reported it to authorities. "The state had nothing for me," Voss said in response to questioning about his incentive for relaying the information.
8:20 a.m. Capone's attorney, D. Ray Barker, is asking Voss who else was present when Capone allegedly said they would never find a body. Voss said they were at a table by themselves. Barker asked if Capone has ever admitted doing anything to his wife. Voss said Capone did not say anything more than the comment about not finding a body.
8:15 a.m. Voss said Capone made an odd statement to him after Voss asked him if Capone thought he would get out of jail. Capone allegedly told Voss he wasn't too worried about it because they wouldn't find the body.
Voss is saying he and Capone had also had a discussion about a gun.
Mia Vowels, with the Latah County Prosecutor's office, is questioning Voss about whether Capone ever denied that he killed his wife. Voss said he never blatantly asked him.
"I've got to live with this guy, I'm not going to try to irritate him," Voss said.
8:11 a.m. Joshua Voss has been called to the stand. He knows Capone from being in jail with him about three years ago in Bonner County Jail.
8:08 a.m. Zachow said he recognized Anderson as the woman he had helped look for a desktop computer. He said Anderson was there for about 20 minutes.
Barker asked Zachow what Anderson's demeanor was when she was at the office store. Zachow said she was excited to buy a computer and when she learned it was out of stock she was a little disappointed, just like any other customer.
Zachow has been excused.
8 a.m. Magistrate John C. Judge has entered the courtroom and is back on the record for the third day of the hearing. The prosecution has called Kent Zachow. He is an employee at Office Depot in Moscow.
Zachow said he was working at about 6 p.m. April 16, 2010 and was helping a female customer shop for a computer.© 2013 The Lewiston Tribune. All rights reserved.
08/01/13 1:40 PM
4:55 p.m. Court is now adjourned.
4:53 p.m. Judge set arraignment for 11 a.m. Aug. 7.
Kovis is requesting a lower bond for Stone. He was issued a $250,000 bond last week.
Judge is declining a reduced bond. He said that he believes the set bond is sufficient for the severity of the alleged charges.
4:50 p.m. "So I am going to bind Mr. Capone and Mr. Stone over as pled in the filed criminal complaints based on these reasons," Judge said.
4:48 p.m. Judge said he believes there is probable cause to believe that each of the overt acts detailed by Thompson occurred in the conspiracy charges
4:38 p.m. Judge said this is a little more removed, but there is evidence that suggested Capone had motive to want "to silence" Anderson because of a gun violation.
Judge said the incident involving Mingles Bar and Grill — when Capone and Stone were said to have stopped there — and were not shown on the surveillance camera shows that the two men were not being truthful.
4:35 p.m. Judge said there is the evidence of Capone stalking Anderson — including text messages from Anderson herself to Capone where she said she knew Capone had Stone follow her. There is also the recorded interview with Porter when he told Latah County Sheriff's Det. Tim Besst that Stone and Capone had a "pact" to kill each other's wives.
4:24 p.m. Judge said it is reasonable to assume that Anderson is not coming back and everything presented about her disappearance proves to be "totally out of character."
"The evidence supports the conclusion that the murder occurred in Mr. Capone's shop, and there's physical evidence to corroborate that," Judge said, adding the fact that it is the last place she was seen.
Judge said there are questions about all of the evidence, but there are dots that seem to connect to
Judge said he thinks sufficient evidence for probable cause has been presented for the murder, so the next question is: Who is responsible?
4:23 p.m. Judge is now addressing the court.
He said he believes that the state has proved to a probable cause standard that Capone and Stone committed the crimes they are charged with.
4:22 p.m. Kovis said Thompson started his statement by saying the case begins with Chris Porter. If the case hinges on Porter, Kovis said Judge should dismiss the charges against his client, questioning Porter's credibility.
4:19 p.m. Monson is now responding. He said that today we don't know anything more than Anderson is missing, there is no evidence that a murder occurred, that anything happened in Latah County or at Capone's shop and there is still the issue of the nonexistent recording.
Because of that, Monson said he asserts that the state has not reached its requirement of proof of probable cause.
4:17 p.m. Thompson said he believes the state has provided the court with substantial evidence for probable cause and asks that Judge bound over Capone and Stone to district court for trial
3:41 p.m. The state requested the submission of affidavits from Latah County coroner Cathy Mabbutt.
The state rests.
Thompson is now offering his observations to Judge. He said it is an unusual case because of its circumstantial nature because the body has not been found.
Thompson said there is evidence of Capone stalking Anderson, Capone's small claims document that was found in the office of his shop, the pending divorce and "ultimatum" of Anderson giving him an answer about their relationship on April 16, 2010.
The main reason they have to believe Anderson is dead, Thompson said, is that she has not had any contact with her two juvenile sons and was their primary caregiver.
Thompson said the phone records shown today, while detailed and perhaps better suited for trial, has striking information and shows a dedication to find the truth in this case.
Thompson is now talking about how the Yukon Anderson was driving "mysteriously" ended up in northeast Lewiston when she was last seen in Moscow. Thompson is reiterating the blood found on paper in the vehicle, the placement of Anderson's items and the cleanliness of the Yukon.
Thompson has further recapped — in a condensed version — the ongoings of the preliminary hearing, and said it was all within the context that Capone and Stone had an agreement to kill each other's wives.
3:29 p.m. Judge has returned and cross-examination of Birdsell will now begin.
The defense questioned Birdsell further about cellphone signals, sectors and the ping discussed during the first day of the preliminary hearing.
Birdsell has been excused.
Court is now in recess until 3:25 p.m.
3:12 p.m. The final slide showed a comparison of no voice activity on Anderson, Capone and Stone's phones based on their individual records.
3:09 p.m. Birdsell said based on Stone's phone records, they found that his phone had no activity between 8:40 p.m. April 16, 2010, and 8:52 a.m. April 17, 2010.
3:04 p.m. Birdsell is now explaining a slide that shows calls made from Stone's phone to Capone's shop with times and call duration aligning, based on phone records obtained by the search warrant.
2:58 p.m. Birdsell said that based on Capone's phone records they were able to determine that his phone had no voice activity from 7:30 p.m. and 9:57 p.m. April 16, 2010.
Birdsell said Capone's phone received data at about 1:07 a.m. April 17, 2010, on the southern side of Colfax, Wash. Birdsell said that information was collected from Capone's phone records. At 1:14 a.m. on the same date, Capone's phone also received data from a tower just before Pullman near the Whitman County landfill.
2:52 p.m. Birdsell is explaining two charts he created based on the records he received from Anderson's phone records. Vowels pointed out that the volume increased in the day or two prior and after Anderson was last seen, but dropped off in the last few days charted. Birdsell agreed. He said he charted the records from mid-March 2010 to April 23, 2010 when Capone's phone was confiscated by Moscow Police Department.
2:46 p.m. Birdsell said Anderson's record also show no data between 8:27 p.m. and 9:20 p.m.
Birdsell said when Anderson's phone hit on a tower again — after the block of no data — it was recorded in the Lewiston Orchards. Birdsell said her text message records also hit on the tower in the Orchards at 9:20 p.m.
2:42 p.m. Birdsell is explaining a slide that shows the last call Anderson made was at 8:09 p.m. April 16, 2010. He said the significance of this is that she has no data in her phone record between 8:09 p.m. and 9:57 p.m. Birdsell said that could be caused by the phone not hitting on any tower, the battery is not in the phone or it is turned off. Birdsell said Anderson's last call was made to Dennis Plunkett and it hit off the Palouse Ridge tower.
2:36 p.m. Birdsell is explaining slides that are showing approximate locations for where Anderson was on April 16, 2010, in Lewiston when she exchanged phone calls with Capone.
Slides have moved to phone calls to or from Anderson's cellphone in Moscow. Birdsell said one phone call hit on the Moscow dormitory tower — on the UI campus — and aligned with when Robert Bogden testified to seeing Anderson drive by the Baskin Robbins on Third Street.
2:32 p.m. Birdsell is identifying two cell towers in Moscow — one along Palouse Ridge and one on the Theophilus Tower on the University of Idaho campus.
2:28 p.m. Birdsell is explaining how cellphone calls and text messages are picked up by the cell towers, how that information is recorded on the phone records and how it can determine an approximate location for where the phone is being used.
2:15 p.m. The slide being shown now are text messages sent to Anderson's phone after the last time she was seen. It is four text messages from Capone. The first text came in at 9:50 p.m. April 16, 2010. The last one was at 8:01 a.m. April 17, 2010.
The next slide is more texts on April 17, 2010, sent to Anderson's phone. The text messages are from Capone, which Birdsell said appeared on both Anderson and Capone's phone records.
One text read, "hello. Hello hello."
Birdsell is continuing to explain the slides. The text messages continued on April 18, 2010. One text from Capone read: "Rachael what's wrong? We need to trade vehicles back. Please stop ignoring me2:09 p.m. Birdsell is continuing to identify text messages off of Anderson's phone.
Vowels asked Birdsell to read a text message from Anderson to Capone. The text message was enlarged from the report with a portion of it blocked out. Vowels asked Birdsell why and Birdsell said it was because it referenced a prior incident that did not apply.
Monson objected and Judge asked Vowels why the message was being manipulated. Vowels replied that it wasn't being manipulated and the blocked out portion was "to protect Mr. Capone."
Monson and D. Ray Barker, Capone's second attorney, are reviewing the message. Monson said he had no objection after reviewing the message.
1:53 p.m. Birdsell is identifying and explaining a cellphone record. Birdsell said he confirmed that the number on the record belonged to Anderson. Birdsell said he also confirmed that the secondary number on the record belonged to Capone.
The slide shows two text messages — one from Anderson and one from Capone.
Monson is objecting to the substance of the text messages as hearsay.
Judge said he is overruling hearsay, and said they will take each slide one at a time to record the various objections.
1:43 p.m. After objections from the defense, Vowels asked Birdsell about the quantity of the records he received. Birdsell said there were a lot.
Vowels is setting up a slideshow presentation that she will ask Birdsell questions from.Birdsell issued a search warrant for the cellphone records of Capone and Anderson in June 2010. 1:27 p.m. Birdsell also served a search warrant for the phone records of Capone's business in June 2010.
Birdsell said he received the records for both the cellphones and the Palouse Multiple Service records in July 2010.
Vowels asked Birdsell if Capone's iPhone was placed into evidence at the Lewiston Police Department and if a forensic analysis was done it. Birdsell said yes to both.
1:19 p.m. Court is back in session and the state has called its final witness — Lewiston Police Department's Brian Birdsell.
Birdsell was a member of the Rachael Anderson task force. He was a detective at the time, as well as the evidence custodian. He is now a patrol sergeant responsible for a day shift.
08/02/13 11:38 PM
MOSCOW - Her body has never been found and it's not clear how she was killed, but a judge determined Thursday there is sufficient evidence to force two Moscow men to stand trial for the murder of Rachael Anderson.
Following three days of testimony at a preliminary hearing in 2nd District Court here, Magistrate John C. Judge said the standard for probable cause has been met in what attorneys described as an unusual and complicated case. Judge said he realized the gravity of the charges and carefully considered the evidence while making his decision.
Charles A. Capone, 52, and David C. Stone, 49, are charged for their alleged roles in the death of the missing Clarkston woman, who vanished more than three years ago. They will be arraigned in 2nd District Court at 11 a.m. Wednesday.
All of the elements are subject to questioning and attack from defense attorneys at trial, but the judge said these are the dots that seem to connect. Anderson was murdered and is never coming home. According to the evidence at the hearing, the alleged crime likely took place in Capone's shop, the last place she was seen, Judge said.
In addition, her blood was found on paperwork in the GMC Yukon she was driving, along with a glove tip with DNA from Capone and Anderson. A cadaver dog indicated decomposing human flesh was allegedly transported in that vehicle.
As for possible motivation, Capone didn't want a divorce from Anderson. He was angry about it and he acknowledged stalking behavior, Judge said. He may have wanted to silence her from testifying against him about his gun ownership or in an Asotin County domestic violence case, Judge said.
The two men didn't have clear explanations for where they were the night Anderson disappeared. Some of the evidence suggests they weren't being truthful, Judge said. Then Capone ended up at Spence Hardware the next morning buying a new tarp, which seems significant, he said.
A recorded interview with Chris Porter was important for a lot of reasons, the judge said. Porter's testimony offered alleged proof of an agreement between Stone and Capone that forms the basis of the conspiracy charge. Capone and Stone allegedly made a pact to kill each others wives, and Stone reportedly talked about collecting his wife's life insurance money.
Stone's wife, Alisa, immediately left the courtroom when the judge announced his decision late Thursday afternoon. Anderson's family members and friends said they were relieved the men were bound over for trial.
Latah County Prosecutor William Thompson Jr. said the case is based on circumstantial evidence and it's complicated because the body is not available.
"Typically we know the cause of death," he said. "We are dealing with a different type of case than this court has ever seen."
The main reason they have to believe Anderson is dead, Thompson said, is that she has not had any contact with her two juvenile sons and was their primary caregiver. Anderson, who was 40 when she disappeared, is the mother of four children. Her two daughters were in court this week.
During his closing arguments, Thompson said overt acts need to be considered, like Stone's experience of digging a deep hole with a backhoe and Capone's alleged statement to a former cellmate that he'd buried Anderson's body so deep they wouldn't be able to find it.
The last time anyone has any knowledge she was alive, she was in the company of the two defendants, Thompson said.
Attorney Mark Monson, who represents Capone, along with attorney D. Ray Barker, argued there was no evidence of her death in Latah County or the state of Idaho.
"At the end of the day, we're left with speculation and conjecture," Monson said.
Public defender Charles Kovis, who represents Stone, said he's been through thousands of preliminary hearings, and this was the longest one he's ever done. He said if the case against his client hinges on Porter, the charges should be dismissed based on the witness' credibility.
Kovis asked the judge to reduce Stone's bond from $250,000 to $100,000 Thursday. That request was denied.
Sandaine may be contacted at email@example.com or (208) 848-2264. © 2013 The Lewiston Tribune. All rights reserved.
08/02/13 11:43 PM
MOSCOW - In an interview with police, the estranged husband of Rachael Anderson allegedly indicated he didn't kill her, but he knows where her body is.
The judge and a defense attorney expressed dismay Wednesday when a Moscow police lieutenant said a recording of that interview was taped over, based on a conscious decision by three law enforcement officers three years ago.
Defense attorney Mark Monson was incredulous when the information surfaced at the end of the second day of a preliminary hearing for Charles A. Capone and David C. Stone, who are facing murder charges in Latah County for their alleged roles in the disappearance of the missing Clarkston woman. Monson represents Capone, along with attorney D. Ray Barker.
"You made a conscious decision to not preserve the most critical piece of evidence in this case?" he asked Moscow Police Lt. James Fry.
Fry said in retrospect, he wishes they had kept it, but the officers who made the decision were trying to protect attorney-client privilege. The statement Capone allegedly made to Asotin County Sheriff's Capt. Dan Hally was on the same recording as a conversation between Monson and Capone, Fry said, so they decided to let it get taped over on a 90-day loop. Fry said he made the decision with former Moscow Cpl. Scot Gleason and federal agent Lance Hart, and no report about the discussion was ever written.
Calling it a "pretty big oversight," Magistrate John C. Judge, who is presiding over the hearing, said the District Court will have to address potential issues of loss of evidence and loss of documentation if the Moscow men are bound over for trial. The preliminary hearing resumes at 8 a.m. today.
The interview in question took place May 6, 2010, at the Moscow Police Department. Hally confronted Capone about his role in his wife's disappearance, demanding that he tell him two things - that he killed Anderson and where her body was. Capone allegedly responded, "You got one of those correct," indicating he knew where the body was, but that he didn't kill her. Hally and Capone were the only two people in the interview room at the time.
Shortly after the statement was allegedly made, Monson met with his client in the same room. That's when the three officers decided to shut things down in the recording room, Fry said. They had been drilled for years that attorneys and clients have privileges, and they didn't want to hear anything they shouldn't have, he said.
"I get edited tapes all the time," Monson said. "There is a method to copy the relevant information."
Judge said the deleted recording is troubling. But shedding the best possible light on the situation, he said no one was really in charge of the investigation at that point and there were many agencies involved.
Capone, 52, and Stone, 49, are both charged with first-degree murder, conspiracy to commit first-degree murder, failure to notify a coroner or law enforcement officer about a death and conspiracy to commit failure to notify a coroner or law enforcement officer about a death. They are being held in the Latah County Jail.
Anderson, the mother of four kids, disappeared April 16, 2010. She was in the process of divorcing Capone when she vanished.
The state called 11 witnesses to the stand Wednesday, and nine more are slated to testify today. Latah County Prosecutors William Thompson Jr., Michelle Evans and Mia Vowels are handling the case. Public Defender Charles Kovis was appointed to represent Stone.
Idaho State Police Detective Mike Mooney told the court he helped search a borrowed GMC Yukon Anderson had been driving, Capone's auto repair shop in Moscow, his pickup truck and Anderson's car, which also was parked at the shop. Forensics testing revealed a spot of blood on a piece of paper in the Yukon belonging to Anderson, he said. In addition, a glove tip was found in the passenger seat. Soil samples from the tires indicated the Yukon had recently been driving on the Palouse, but not in the forest.
Ronda Bowser, a cadaver dog handler from Orofino, testified her dog alerted to the presence of decomposed human remains during a search of the Yukon. The dog became frustrated when she couldn't pinpoint the source of the scent, Bowser said, but the strongest odor was found in the back of the vehicle.
One of Anderson's close friends, Jennifer Norberg of Lewiston, told the court Anderson was frustrated, anxious and frightened when they spoke on the phone in the days before she disappeared. Capone had asked her to go to a counseling session with his pastor in an attempt to save the marriage, but Anderson reportedly told Norberg her estranged husband was obsessed over a minor incident and would not address the underlying issues in their relationship.
Anderson agreed to meet Capone on April 16, 2010, to talk about their marriage, Norberg said. Anderson told her friend she was going to proceed with the divorce and she was fearful of his reaction.
A molecular biologist, Robert Bogden of Viola, said Capone was his mechanic but their relationship evolved and they eventually became good friends. Bogden and his wife let Capone move into their home when they found out he was sleeping at his shop, Palouse Multiple Services, after he split up with Anderson in early 2010.
Capone told Bogden he was watching Anderson's house in Clarkston and he was relieved when she came home alone. Bogden told the court he advised Capone to quit watching her, saying "nothing good is going to come of that." Bogden said he later took possession of one of Capone's guns, a Glock, "so nothing would happen in a moment of jealous rage." That gun was later turned over to police. He didn't know Capone was a convicted felon, Bogden said.
The news of Anderson's disappearance caused Bogden to go into defense mode, he said. He sent his wife and child to Utah, and asked Capone to move out immediately.
"My advice was tell them everything you know and get a good lawyer," he said.
Bogden, who works in the DNA field, said Capone later contacted him May 5, 2010, at his business in Pullman. Bogden said he was concerned for his safety and didn't know what to expect, so he armed himself before he got in Capone's vehicle.
Capone wanted to talk about his firearms. He told Bogden he could get in huge trouble for having guns because it was a federal offense. He was worried about pictures of him hunting on his computer, and he also asked Bogden if the authorities could get DNA out of sweat, according to Bogden's testimony.
"He couldn't look at me," Bogden said. "He was upset. He was looking straight ahead, hanging on to the steering wheel."
Capone was arrested on federal firearm charges the next day in Moscow.
Bogden described Capone as an "honest and fair" businessman who treated his customers well.
Witnesses said Capone bought a tarp on April 17, 2010, in Moscow, and an older tarp in his shop had been replaced by the shiny new one. The purchase was made on the morning after Anderson disappeared.
Nathan Donner, a former employee of Capone's, said Capone lived with Anderson in Clarkston after they were married. Capone later moved to Viola when he and Anderson began having problems. During that time, Donner said Capone asked him to check on Anderson about 20 different times because he frequently drove by her house on the way to visit his girlfriend.
Gene Dethman, a city of Moscow employee, told the court he used to work with Stone at the city shop. About two weeks before Anderson disappeared, Stone told Dethman he had an interest in running the backhoe, so Dethman explained how to set a grade with the equipment. After showing him how to operate the controls, Stone dug a hole as deep as could, Dethman said.
Sandaine may be contacted at firstname.lastname@example.org or (208) 848-2264. Follow her on Twitter @newsfromkerri.
© 2013 The Lewiston Tribune. All rights reserved.
08/11/13 4:29 AM
MOSCOW - Arraignment for two Moscow men bound over for trial last week on murder and conspiracy charges in the disappearance of Rachael Anderson has been postponed.
Charles A. Capone, 51, and David C. Stone, 50, were bound over to 2nd District Court by Magistrate John C. Judge after he determined evidence shown during a three-day preliminary hearing met the standard for probable cause.
The men are charged for their alleged roles in the death of the missing Clarkston woman, who was last seen in April 2010. Capone and Anderson were in the process of getting divorced when she disappeared.
Arraignment for the men in District Court was scheduled for today, but was delayed following a motion from the Latah County Prosecutor's Office calling for disqualification of District Judge John R. Stegner.
The motion was filed without cause, meaning a reason for the request does not need to be given, said Latah County Senior Deputy Prosecutor Michelle Evans.
Capone and Stone are charged with first-degree murder, conspiracy to commit first-degree murder, failure to notify a coroner or law enforcement officer about a death and conspiracy to commit failure to notify a coroner or law enforcement officer about a death.
Evans said a new arraignment date will be set after Stegner appoints a different judge from within the 2nd Judicial District, which includes Latah, Lewis, Clearwater, Idaho and Nez Perce counties.
The trial is still set to take place in Latah County, Evans said.
Both men remain in custody of the Latah County Jail.
© 2013 The Lewiston Tribune. All rights reserved.
09/18/14 9:48 PM
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