repeatedly claims she was tired of the years of abuse and insults from me and that she just wasn't going to put up with it anymore p15l16-21;
falsely claims she never published the pictures of Sage in his underwear, and that she's terrified for Sage because any pedophile can see those pictures on the website p20l14-p21l22;
falsely claims I had included Gabriel on almost all of my emails to her p24l44-45;
falsely claims the reason she continued to engage me in conversation was because she was under court order to p38l7-9;
appeared to be very emotional, pretending to cry, and at times on the verge of breaking down.
Desiree even goes so far as to claim there were days she was so traumatized by me she couldn't even get out of bed; she was always looking over her shoulder; she wouldn't make new friends, wouldn't talk to anybody p27l30-41.
At one point, however, Desiree inadvertently mentioned that she hadn't actually read any of the blog posts until just before the trial. This is significant because if she was not aware of what was stated in the posts they could not have contributed to her fear for her safety p43l23-27.
In the Supreme Court of British Columbia, at Vancouver, this 13th day of June, 2017, recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
Myhre:
Nothing to canvass, My Lady. The Crown's ready to go.
Lagemaat:
There is still the issue, My Lady, of tomorrow morning.
Myhre:
Oh, right.
Lagemaat:
And I've had discussions with my friend. I expect he'll tell you he might be finished early today. I will need a little bit of time with Mr. Fox before I start cross-examination. I can tell My Lady that this is, essentially, the thickness of the materials I will be putting to Ms. Capuano. So I will not be nowhere near what Mr. Fox's original estimate was. I did attempt to get ahold of opposing counsel on my other matter and, not to criticize him, but he's always been difficult to communicate with, and I had my office leave messages, my assistant call and see if he would consent to adjourn. I did not hear back. If that changes today, I will notify My Lady, but, as it is, it would be a default order against my client if I'm not there tomorrow morning.
Judge:
All right. And you thought you could be here by about 11?
Lagemaat:
Yes. And what I had discussed with my friend and I'm proposing is that we could -- we could let the jury go for the morning. It would give me some extra time to spend with Mr. Fox, if I got here at 11 or 12 for example, and we could start early, start one o'clock, and perhaps have two breaks in the afternoon. I was going to originally suggest, if my friend finishes early today, that we stand down until tomorrow afternoon. And I still will suggest that, but, of course, that would be giving up the afternoon and the morning. But what that would give me would be the afternoon to spend with Mr. Fox.
The court saw, I'll say, a small percentage of the materials. I will need to go through a lot of material with Mr. Fox before starting my cross-examination because, while it is my cross-examination, I do need to make sure I'm getting his theory on the record. So I will need to go through a lot of materials with Mr. Fox before I start. So, regardless of how we proceed, as long as I have the time to spend with Mr. Fox before beginning my cross-examination.
Judge:
All right. Anything, Mr. Myhre?
Myhre:
No, that's something we discussed, My Lady.
Judge:
All right. It's a slightly unusual situation, with your involvement, Mr. Lagemaat, and you have obligations inherent to your role that are somewhat different from those of defence counsel who might have been on the case for a long time, with the ability to take instructions. We will work around your obligation tomorrow morning on another case, if you are not able to get some assurance from opposing counsel on that other case. If you can, that would, obviously, be preferable.
Lagemaat:
Yeah.
Judge:
But, if you're not, we'll work around it. And I think what we should do is wait until later today and see how things are going.
Lagemaat:
Thank you, My Lady.
Judge:
All right. Are we ready for the jury?
Fox:
Um, I wonder if we might be able to remind the jury that everything that was discussed yesterday is outside of the timeframe of the indictment, that that's purely just for background. None of the emails that were brought up yesterday make up part of the charge.
Judge:
Mr. Myhre, is that something you can do in your examination or that I should consider doing?
Myhre:
I kind of did do that, My Lady, in my opening. I told the jury that they were going to need to really focus on the question of that time period. In my submission, I know Your Ladyship is going to give them a very clear instruction about the charge period. But, as Your Ladyship knows, what happened before is relevant to inform the mindsets of the parties during the time period charged, so it's not like that's irrelevant, and any instruction in that regard would have to be thoughtfully done.
Judge:
Might it not be -- I'll put that more positively. It seems to me that it might be preferable that you simply work into your questions -- [background conversation]. I'm just going to wait for a moment. It might be preferable and more natural that you simply work into your questions that you're continuing on with some background to the period covered by the indictment. Something along those lines. Would that be acceptable?
Myhre:
I can certainly do that.
Judge:
And that would function as the reminder that Mr. Fox is asking for.
Fox:
Thank you.
Judge:
All right. Mr. Lagemaat, is everything all right?
Lagemaat:
Yes. I was just mentioning to the sheriff I'd like to spend the morning break with Mr. Fox.
Judge:
I see. All right. I wanted to make sure there's not a problem before I bring the jury in.
Lagemaat:
No problems, My Lady.
Judge:
We all set?
Sheriff:
Yes.
Judge:
Please.
Sheriff:
Yes, My Lady.
The jury, My Lady.
(JURY IN)
Judge:
Good morning, members of the jury.
Clerk:
Let me remind you, Ms. Capuano, that you're still under affirmation.
DESIREE CAPUANO
a witness called for the Crown, warned.
Myhre:
My Lady, I have the additional copy of the book of records.
Judge:
Thank you.
Myhre:
Are we okay to go, Madam Registrar?
Clerk:
Yes.
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
Myhre:
Ms. Capuano, when we left off yesterday, we had just finished getting to the end of a few of the emails from 2014 that are in this book. I'd like to go back. There are a couple of things and we skated over a little too quickly. Could I take you back to - and we're at Tab 10 of the book here - to the July 22nd, 2014 email, titled "Telephone communication regarding Gabriel".
Now, I understand you've thought about this a little bit overnight. Last -- yesterday you couldn't really remember what this conversation was about.
Capuano:
Correct.
Myhre:
Do you have any recollection of it having thought about it overnight?
Capuano:
This -- this telephone call, if memory serves correctly, was in regards to me calling him and asking him to stop with the website, to take it down and stop emailing my co-workers.
And we talked yesterday how -- about how, in many of these emails, when they're originally sent to you on the dates in 2013 and 2014, the name "Richard" was being used, not "Patrick".
Capuano:
Correct.
Myhre:
So that looks like it's been replaced in these emails.
Capuano:
Correct.
Myhre:
If you look at the P.S. section of this email [as read in]:
P.S., is it really necessary to keep using the name Patrick?
Okay. Moving ahead again, so the email titled, "The ugly proof" from December 17th, 2010 -- 2014. Did you check overnight whether or not this was one of the emails that Gabriel was cc'd on?
Capuano:
Yes, I did, and yes, he was.
Myhre:
Okay. And after court yesterday, you pointed something out to me that troubled you in this email that we'd overlooked yesterday when you were testifying. What was that?
Capuano:
The question on whether or not the email made me fearful, because he's indicating that he owns firearms and he's purchased these firearms under the identity of Patrick Fox, but what was concerning to me, particularly in this email, was where he says [as read in]:
Regardless of what you believe, that birth certificate, together with my BC ID has been sufficient every time I've crossed the border. You only require the passport when flying, not driving.
Madam Registrar, could you hand that to Her Ladyship?
Myhre:
Can you just flip through that? It's a stapled set of three -- three pages. Do you recognize these documents?
Capuano:
Yes.
Myhre:
Are these the ones that were attached to this email?
Capuano:
Yes.
Myhre:
And the ones that were attached to these -- these documents have things vetted out. It looks like the middle name, Patrick-something-Fox is vetted out from each of them. Was that how they were sent to you?
Capuano:
Yes.
Myhre:
My Lady, could these be marked as an exhibit, please?
Judge:
Any objection, Mr. Fox?
Fox:
Not yet, I mean, we are getting very close though, to something I'm going to object to.
Judge:
But you're not objecting to this?
Fox:
No, I don't object to this yet.
Judge:
All right.
Myhre:
And what number exhibit are we at?
Clerk:
It would be Exhibit 2, My Lady.
Judge:
And you're proposing that all three pages be marked together as Exhibit 2?
Myhre:
Collectively as the attachment to the December 17th email.
Judge:
And the version I have, that's a copy, is it, not the original?
Myhre:
These are all copies, My Lady, printouts.
Judge:
All right. But has Madam Registrar got one is what I'm asking.
Myhre:
Oh, I believe the copy that the witness has should become the exhibit.
Judge:
All right.
Myhre:
That's my intention.
Judge:
Can I see that one, Madam Registrar? Is that a colour -- yes, it is, thank you.
EXHIBIT 2: Identification documents attached to email of December 17, 2014, 3 pages
Myhre:
Okay, Ms. Capuano, we're now going to move into the time period that -- for which Patrick Fox is actually charged with criminal harassment. January the 11th, 2015. So if I could take you into Tab 11, and if you could flip over a couple of pages to the end of this email chain ["Your loving home and parental teaching and guidance"]. It appears to start on January the 11th at 9:04 a.m. and now, to be clear, by this time was Richard corresponding with you in the name "Patrick"?
And he's asking you some questions about how Gabriel's doing.
Capuano:
Yes.
Myhre:
Now, had Gabriel been with Richard over the winter break?
Capuano:
Yes.
Myhre:
And do you remember roughly when that was?
Capuano:
December 20 -- in the range of December 20th until January -- first week of January. It's the two weeks winter break through Christmas and New Year's.
Myhre:
Now, I'd just like to highlight something in this first portion of the email, and over the next page, so the very -- the very last page of this email string, the second full paragraph that starts with, "I know that by saying this...". If you look a little further down, about halfway down, Richard writes [as read in]:
The longer Gabriel is there with his bad attitude, his indifference toward you and Sage and your family and his subtle demeanour of disgust and condescension toward you and Sage and your mother and your trashy ways, the more it will instill into Sage's subconscious --
I'm sorry, Mr. Myhre, I'm lost and it may be that members of the jury are too. Where are you, please?
Myhre:
Thank you, My Lady. So this is the very end of the first email string that's included at Tab 11.
Judge:
When you say "the end", what kind of end do you mean? When it began or when it finished or...?
Myhre:
Right. I see how it's all confusing. So I'm looking at the third page at Tab 11, and the first words on that page are, "Example, your home...".
Judge:
Okay.
Myhre:
Thank you.
Myhre:
And so the second full paragraph down that starts with, "I know that by saying this...", Ms. Capuano, I'd like to ask you a question about this portion that appears halfway down [as read in]:
The longer Gabriel is there with his bad attitude, his indifference toward you and Sage and your family and his subtle demeanour of disgust and condescension toward you and Sage and your mother and your trashy ways, the more it will instill into Sage's subconscious that he is inferior and inadequate, the more it will slowly eat away at your perfect family. Sucks. Now, on the one hand, you're pulled by your upbringing, years of conditioning to react in the only way you know, with anger and spite, to want to keep Gabriel there because you believe that it will adversely affect me. On the other hand, you know I'm right and that I've been manipulating the situation for two years and that as long as Gabriel is in your home, you will never be happy because you will never have your fairy tale.
Now, do you remember what Gabriel's demeanour was like when -- around this time when Richard sent you this email?
Capuano:
Anytime Gabriel came back from his visitation with his father, his behaviour was different. He was reserved, he wouldn't talk, he wouldn't associate. He would --
Judge:
Just -- just a moment, please, Ms. Capuano. Yes, Mr. Fox?
Fox:
I'm terribly sorry, but I'm sometimes having difficulty hearing the witness. Would it be okay to request that she speak just a little louder?
Judge:
All right.
Fox:
Or is there -- is there a microphone perhaps?
Judge:
I'll ask Ms. Capuano can you speak a little more loudly?
Capuano:
Yes, I can try.
Fox:
Thank you, My Lady.
Judge:
Thank you.
Myhre:
So you said that any time he came back from his visits with Richard, he was reserved --
Capuano:
He would not associate with the family, he would not accept hugs like he normally would, he'd shut himself up in his room. If he was in the living room, he would sit as far away from us as he could, and it would take quite a bit of time to get him to be normal again.
Myhre:
Okay. If we go forward in this email chain, so just to the page preceding the one we've just been looking at, and there's an email about a quarter of the way down the page that starts, "On Sunday, January the 11th, 2015, Patrick wrote...". And three paragraphs down into that email, or, sorry, the last paragraph in that email, Richard writes [as read in]:
I've discussed all of this with Gabriel and I've explained to him what my plan is with respect to you. I've told him if he's uncomfortable with any of it, then I won't proceed. He's is fully aware that he is being used as a pawn in my plan to ruin your life and he seems to be okay with it.
Ms. Capuano, how did that statement from Richard make you feel?
Capuano:
Incredibly sad. But I knew that my son was being manipulated to help his father, oftentimes unknowingly. So I was watching this happen and it was very frustrating that he put it into words, I mean, put it down on paper and there's still nothing I could do to stop it.
Myhre:
Okay, now I'd like to go to the first page of this email string, so the first page after Tab 11. Now, it has the parties there listed, "From Patrick to Desiree" at the top. Do you know whether this was one of the emails that Gabriel was cc'd on?
Capuano:
I'm sorry, which -- which one are we referring to?
Myhre:
So it -- as soon as you open from Tab 11, that first page.
Capuano:
Correct.
Myhre:
Do you know whether or not Gabriel was cc'd on this email?
Capuano:
I believe he was.
Myhre:
And what we see following are some little arrows that show what your response to Richard's initial emails that we just looked at were.
Capuano:
Yes.
Myhre:
And then below those arrows, there's Richard's response to your response.
Capuano:
Correct.
Myhre:
And so I'd like to take you to -- just partway down the page where there are little arrows that start with, "Your stalker-like obsession...", about a third of the way down the page. And you write to Richard [as read in]:
Your stalker-like obsession with me is truly impressive. The amount of time and energy spent thinking of me is flattering, but honestly, a little pathetic.
And you told us earlier how you had, for a time, been ignoring emails from Richard.
Capuano:
Yes.
Myhre:
Here you've done something different.
Capuano:
Yes. I was trying a new -- a new approach.
Myhre:
Can you explain what that approach was and why you took that approach?
Capuano:
A lot of the times with a bully, if you ignore them or don't give them what they're after, they'll stop, and so that's what I had been trying. I was trying to placate and give him what he was demanding or just not engaging.
At this point, I instead tried to defend myself, stood my ground, and I wasn't going to be pushed around anymore and I thought maybe if he saw that I wasn't intimidated or if I wasn't affected, that maybe he would stop, and so I pushed back and I was trying some bravado and just -- I was tired.
Myhre:
And Richard's response to you saying that was [as read in]:
If there's any sincerity in your statements that you -- then you've grossly misinterpreted my intentions. I was pretty direct when I told Detective Tuchfarber that my intention was to do everything in my power and capabilities to make your life as miserable as possible and, if possible, to the point that you ultimately commit suicide.
That would be my ultimate desire. But before you reach that point, it is imperative that you experience as much misery, disappointment, and suffering as possible first. At this point in your life, you have very little to lose, so there is not much incentive for me to actively publish your information. I shall wait patiently until you rise up a bit, then proceed with the billboard campaign around Phoenix. I will wait until you actually have some financial significance, then publish your complete credit and financial history, including your social security number and birth certificate. Not illegal as long as it is done outside the U.S. I don't see how you could interpret such intentions as being misguided affection.
How did that statement from Richard make you feel?
Capuano:
It gave me a clue into some of the things that he was planning on doing.
Myhre:
And did that have any affect on you?
Capuano:
Yes. At that point, I started to wonder what else he had planned. I honestly figured it was just a matter of time before he was going to do something else. But again, I couldn't get him to stop, so...
Myhre:
Okay, Ms. Capuano, can you flip the page and go to the third page in this email string. This is the page that starts at the top with, "I know he is capable of so much...". And if we look at the second-last paragraph, halfway down that paragraph there's a little arrow and it says -- you've written [as read in]:
He is the one being hurt by your actions, scheming and manipulation.
And so what was your purpose in telling Richard that Gabriel -- you believed Gabriel was being hurt?
Capuano:
Whether Richard wanted to believe it or not, my son did love me. He does love me. So for Richard to try to continue to convince Gabriel that I was a horrible person confused him, and the fact that he kept telling Gabriel what his plans were with regard to me and how he was planning on destroying me, is not really good for a child, especially when that's his mom. The fact that he was using Gabriel to get information about me to put on the website, manipulating and using him as a tool, that scars a kid. That hurts a child. He should never be used like that. So, yeah.
Myhre:
How did it make you feel --
Capuano:
I felt like I couldn't protect --
Myhre:
-- when this was happening --
Capuano:
-- my child.
Myhre:
-- to Gabriel?
Capuano:
I felt like I couldn't protect him.
Myhre:
Okay. The last paragraph on that page reads, and this was Richard writing:
He once asked me if I would shoot you. I told him that murder is illegal and immoral and can result in spending the rest of one's life in prison. And that the rest of my life in prison is not a risk I'm willing to take. But otherwise, no, I would have no qualms about it; that that is how much I despise you for the things you've done and continue to do. He did not flinch; he didn't look anything other than indifferent; as best I could tell, he didn't care. The topic never came up again. That was during his visit last summer. To be clear, I told Tuchfarber the same thing. There is nothing illegal or threatening about wanting to harm someone as long as you don't act on it. I am reasonable and rational enough to know the difference, and to refrain from engaging in such activity.
And let me be absolutely clear on this point: I would never deliberately cause you physical harm, other than in self defence or defence of another. Though that is nothing special toward you - I have that rule for 'ALL' people. Also, I emphasize that [Gabriel] brought up the question and I only responded to it truthfully.
I -- I, in my own mind, questioned Richard's ability to rationalize what's -- what's right and what's not. I also questioned his respect for the law and, to me, what that meant was if he could figure out a way that the risk of going to jail was not there, that he would absolutely shoot me,
and he discussed it with our child.
Myhre:
Okay, if we could flip to the next email chain.
And again, My Lady, I do apologize for not having page numbers. That would have made things easier.
If we could flip to the beginning of this email chain, so over the next page. If you look at the bottom of that page, see an email that starts, "On Monday, January 26th, 2015, Patrick wrote...".
So, okay, pardon me, members of the jury. I can see you're flipping. So if we could -- there's the email that starts, "Your talk with Gabriel..." at the subject line on January 27th, 2015. So if you could just flip the page from there and at the very bottom of that page, it says, "On Monday, January 26th, 2015, Patrick wrote...".
And if we look over the page, Ms. Capuano, at the end of that email, the second paragraph reads [as read in]:
By the bye, about your medical records, I got them from Penn Mar unofficially, of course. That's when you were diagnosed as bipolar, and since there is no cure for it and it never goes away, if you were bipolar then, you're bipolar now.
Do you know, Ms. Capuano, whether or not Mr. Fox -- Mr. Riess was able to obtain your medical records?
Capuano:
No, I don't know if he was able to get them or not. I don't know if he has them.
Myhre:
Generally speaking, around this time, what was your belief about Mr. Riess's ability to find out information about you?
Capuano:
I figured everything that he said he had, he actually had. He generally doesn't lie, so when he says he's going to get it or has it...
Myhre:
Now, this email continues on with a criticism about your parenting [as read in]:
How is it you've still not inspected Gabriel's eye and brought him to the ophthalmologist. It's been two weeks since I ridiculed you for being so indifferent toward him that you hadn't even noticed it and now you still have not. How do you live with yourself being so full of shit that you claim to love and care about your children and that you're a good parent, dude. You're one of the worst fucking parents I've ever known. Even my crappy mother at least eventually would have taken me to the doctor. Dang, woman, you're a fuckin' sad excuse for a human being. Anyway, it's about time that I update your website and put it back online.
So there we see another criticism of your parenting. Do you remember whether there was a problem for which Gabriel needed to go to the ophthalmologist?
Capuano:
Gabriel is blind in one eye. He's between half and three-quarters blind. He had ROP, which is retinopathy of prematurity, so he had it from being premature, and he lost the retina. The retina detached in that eye, so the eye is essentially dead, which means it's going to milk over and it's going to lose the colour and it's -- this is just normal. I've taken him to the eye doctor. There's nothing to be done about it. The eye is essentially dead, and we knew that.
Myhre:
Okay. If we could flip back to the beginning of this email string where the subject line is listed, "Your talk of Gabriel", January 27th, 2015. So in this file of email printout, what we see here is your response to those previous emails, has a line along the left-hand side, and then Richard has responded underneath those.
Capuano:
Yes.
Myhre:
And right at the top we see your response [as read in]:
Paddy, I can clearly see that maturity is not your strong suit.
So how would you characterize your response there?
Capuano:
It was -- it was a little antagonistic, it absolutely was. I was really tired of the insults, I was really tired of being called a terrible person, I was really tired of being questioned on everything, especially when it was not true. But I also wasn't going to be pushed around anymore.
Myhre:
Did you notice, Ms. Capuano, whether or not there was any difference in your relationship with Gabriel when your responses changed in January of 2015?
Capuano:
Absolutely.
Myhre:
How did it change?
Capuano:
When I was not responding to Richard, then Gabriel only had one side of the story. He had Richard's side of the story only. I -- I refused to put my son in the middle and so I wouldn't talk to him about any of this. So when he saw that I wasn't responding to emails, and I wouldn't talk to him about the situation, all he had was his father's perspective.
When I started responding to these emails, and when I started defending myself, that's when Gabriel started respecting me.
When he actually saw me standing up and he saw me not just laying down and taking it, and he started to see some of my responses as well, and he started to realize that there were two sides to the story.
At one point, he told me it was good that I was finally responding.
Myhre:
Now, if we go just look at the next page, and just over halfway down, there's your response there with the left -- bar along the left [as read in]:
All for what, to pursue some selfish vendetta against me.
And so you're questioning why Richard is doing what he's doing.
Capuano:
Yes.
Myhre:
And we see Richard's response was [as read in]:
Wait a second, my vendetta against you is somehow more selfish than what you did? You had me detained for six months, then physically removed from the country of my birth so that you could gain custody of a child you clearly don't even care about. Yet, in your warped mind, I'm the selfish one?
Otherwise, yes, as I've stated consistently for the past year and a half, the singular goal of the rest of my life is to destroy your life. I don't care if I die penniless and alone, as long as I know I have done everything I can to make your life as difficult and miserable as possible within the confines of the law.
And so right now we're going to flip to the website itself. So if we could go to Tab 1 of this book, Ms. Capuano. Can you give the jury some idea of the frequency, if at all, that you visited this website yourself?
Capuano:
I -- I went there when I initially learned of it and I would look at specific parts of it, if somebody brought up something that I should look at. But, for the most part, other people reviewed it on my behalf.
Myhre:
Why didn't you look at this website more carefully?
Capuano:
Because it's disgusting.
Myhre:
Okay. At Tab 1 here, we see the homepage.
You're familiar -- have you see this before?
Capuano:
Yes.
Myhre:
You've been to this on the website?
Capuano:
Yeah, it's changed over the course of the years, but yes, I've seen this.
Myhre:
And so you knew, as is written at the top, that the goal was to [as read in]:
Increase the awareness of Desiree Capuano by informing the public of the atrocious, the despicable and the downright evil things Desiree has done.
Do you know -- did Richard ever tell you why he was calling you a white supremacist?
Capuano:
Yes.
Myhre:
Why?
Capuano:
Well, having read through the book in preparation, he actually has a whole post there about why I'm a white supremacist, but essentially, there was a single line in one email where I refer to him as a dirty Mexican, and that was very bad. And then there was another line in another email about having to go to Compton courthouse and not being able to figure out our issues on our own. So those two sentences from the two emails over the course of the six years is why I'm a white supremacist.
Myhre:
Do you remember anything about a dagger in your home that --
Capuano:
Yes.
Myhre:
What do you remember about that?
Capuano:
My ex, the one that was arrested, did have a knife. It was on the wall. It have a swastika on it. It did face on the inside of the wall. I did not like it. He tried to say that it was -- that the symbol meant something before the Germans used it, and that was what he was impressed by, but that was him.
Myhre:
You're referring to Kristopher Lauchner [phonetic]?
Capuano:
Yes.
Myhre:
So this would have been 2012 or --
Capuano:
'12.
Myhre:
-- sometime earlier. Okay. And when we look at the -- what's on this website section, it says there's a blog section, a mail section, legal, police reports, pictures, background history, and you know from your view that those things are all on the website?
Capuano:
Yes.
Myhre:
And we've already seen the mail section that lists -- appears to have every -- virtually every --
Capuano:
Correct.
Myhre:
-- email ever sent between the two of you since 2011. I'd like to flip over the page -- or to Tab 2 "Fun Shit" page of website, as of 2016-06-05. So videos of Michael Capuano, is that Michael Capuano? Right, Tab 2.
Capuano:
Sorry, Tab 2. Yes, that video was taken long after we were no longer together.
Myhre:
And below that, is that your son Sage?
Capuano:
Yes.
Myhre:
Do you know what video that is?
Capuano:
I have that video.
Myhre:
Roughly how old is Sage in that picture?
Capuano:
I think he's about six, seven.
Myhre:
Do you have any idea how Richard could have gotten it?
Capuano:
Same way he got the pictures of everything. I then took the pictures using my cell phone, and in Facebook there's an upload section, used to be, and so Richard would go into Gabriel's Facebook account where I was linked with him, and he would go into my pictures and he would look at my uploaded pictures and he would take them all.
Myhre:
Now, do you know that for a fact or is that your best --
Capuano:
That's my best guess.
Myhre:
-- guess as to how he would have gotten them?
Capuano:
Because I didn't even post these on Facebook. They were just in the camera roll.
Myhre:
If we go over to Tab 3, please. So this page is titled photo albums "Pictures" page of website, as of 2016-06-05. There's a picture of you, there's your current partner, James Pendleton, Kristopher Lauchner, your son, Sage, Michael Capuano. Those are -- and that's accurate, that's who those people are in those pictures?
Capuano:
Yes. The picture of Michael Capuano, that was -- that was after we were already separated and divorced, that -- that picture he got.
Myhre:
Is that actually your bedroom there?
Capuano:
It was.
Myhre:
That actually -- was that your bathroom?
Capuano:
Yes.
Myhre:
In what years?
Capuano:
That was -- that was 2014 and '15. That was the apartment I had with just the boys and me.
Myhre:
When did you move out of that apartment?
Capuano:
Summer of 2015.
Myhre:
Was that the bathroom?
Capuano:
Yes.
Myhre:
Was that -- it's like a living room under "my home".
Capuano:
That living room was from a previous apartment that I had with Kristopher Lauchner in 2012 or 2011.
Myhre:
Okay. Under the "San Diego", do you know where that picture is from?
Capuano:
That's from the family vacation that we took in San Diego that Gabriel was supposed to be with us.
Myhre:
In 2011?
Capuano:
Yes.
Myhre:
If we flip the page over, we see photo album, Desiree Capuano. Where is the -- can you tell the jury where the first three pictures are from?
Capuano:
The first picture is the mug shot from when I was arrested for marijuana. The second picture is the marijuana card. The arrest actually -- the charges were dropped for the arrest for marijuana. And then all of the rest of the pictures are still-shot images from the interview that I did with the CBC.
Myhre:
Okay. If we flip the page --
Myhre:
And, members of the jury, if we're counting page numbers in this photo album, if you go to page 3.
Myhre:
If you look down to the sixth row, Ms. Capuano, you see there's -- looks like a picture of you and then a blurred-out face.
Capuano:
Yes.
Myhre:
Whose face is that?
Capuano:
Gabriel's.
Myhre:
And then the next row, the third picture, whose face is blurred out there?
Capuano:
Gabriel's.
Myhre:
If you flip over to the next page, there's some photos of you and -- is that Kristopher Lauchner at the top there?
Capuano:
Yes.
Myhre:
Do you know where these photos came from?
Capuano:
Some in the camera roll. They weren't -- they weren't published.
Myhre:
Sorry, you said they weren't public?
Capuano:
I didn't post them on the Facebook. They were just in the camera roll section that you can get to through Facebook.
How does it make you feel these -- knowing these pictures are up on the website?
Capuano:
This section was added after the last custody hearing in which the judge maintained that I have sole custody over our son, and that I'm responsible for all visitation and communication. Richard called Gabriel and Gabriel told me that Richard's intentions were now to go after Sage, my other child,
and this was his way of doing this, to put all of these pictures of my son on the site. And this scares me so much, because that's public. So any paedophile --
Judge:
Would you just stop for a moment, please.
Fox:
No, I'm sorry.
Judge:
All right.
Fox:
I don't object.
Judge:
There was a hearsay issue in there. That's why I'm -- can you go back and address that again, please, appropriately?
Myhre:
So the relevant question, Ms. Capuano, is how does this make you feel, and I think you were starting to tell us that.
Capuano:
Yes.
Myhre:
You came to believe, for the reasons you've outlined, that now --
Capuano:
There was a reason --
Myhre:
-- Richard was focusing an attack on Sage.
Capuano:
Yes.
Myhre:
How did that make you feel?
Capuano:
Again, this is a danger and this is a risk to a minor child. This website has my home address. It has pictures of my house. It has maps detailing the area where I live along with bus routes, and any other information. So if anybody took a liking to my kid, they could very easily find him. And above that, the kid was 12 years old. He did nothing to Richard. Richard might claim that I deserve this punishment, but this kid did nothing to deserve punishment.
Myhre:
How did that make you feel, to feel like Sage was being punished now?
Capuano:
Scared. At this point we talked about moving, we talked about hiding identities, we talked about what we could do to disappear so that I could protect my family.
Myhre:
Okay. Ms. Capuano, if you look at the last row of pictures on the first page of the Sage Capuano photo album, in the middle, do you know who is in that picture, the middle picture? So the photo -- the first page of the Sage Capuano photo album.
Capuano:
Yes.
Myhre:
The last row, the middle picture.
Capuano:
Yes.
Myhre:
Who's in that picture?
Capuano:
Gabriel.
Myhre:
Who else?
Capuano:
Sage.
Myhre:
And who's the one who's face is blurred?
Capuano:
Gabriel.
Myhre:
If we flip to the -- counting page numbers of this photo album, the 1, 2, 3, 4, fifth page, the last -- well, actually, how about the first row. You see in the middle photo in the first row, there -- there are two, it looks like children laying on the floor and a dog.
Capuano:
Yes.
Myhre:
Who is that?
Capuano:
Sage and Gabriel.
Myhre:
And whose face is blurred?
Capuano:
Gabriel's.
Myhre:
If you look at the last row on that page, the middle photo or the first two photos in the last row, whose face is blurred out there?
Capuano:
Always Gabriel.
Myhre:
And the boy in the light blue, that's Sage?
Capuano:
Yes.
Myhre:
Okay. I would just like to skip ahead to Tab 5 now.
Capuano:
There's also a picture of Sage in his underwear on the last page outside by the pool.
Myhre:
So those are the last two rows on the second-last page of the Sage Capuano photo album?
Capuano:
Yes.
Myhre:
And you pointed them out because...?
Capuano:
It's a child in his underwear on a disgusting website.
Again, these are not photos I published to Facebook. They were just in the camera roll.
Myhre:
Tab 5, please. So this page is titled "Associates". Now, my question is you've looked at some of these, and some of the people you don't know and some of them you do. As far as the people you know, these are actually those people. Like that's actually a picture of Theresa Hoffman [phonetic], Donald Tomlin [phonetic], Sage Capuano, James Pendleton?
Capuano:
Yes.
Myhre:
Could you flip over the page, the second page? The third person down is Wendy Mary Pendleton?
Capuano:
Yes.
Myhre:
And that's -- it's written there [as read in]:
Wendy Pendleton is my fiancé James Pendleton's mother.
Is it true that this is James Pendleton's mother?
Capuano:
Yes.
Myhre:
And it's written that -- the last line under Wendy Pendleton:
Wendy owns Express Employment Professionals, a staffing agency in Tucson.
Is that true?
Capuano:
Yes.
Myhre:
Okay. And then some of the people below that you know, and some of them you don't.
Capuano:
Correct.
Myhre:
Generally the people you know, are those people from Apollo?
Capuano:
Yes. Where it actually gets to be associates, a couple of pages later, those are the people that -- some of them I know because they worked at Apollo, but most of them I don't know.
Myhre:
How does it make you feel to know that there are other people that you know or are associated with are posted on this website?
Capuano:
Isolated. I know that anybody associated with me, anybody that knows me, anybody that supports me, anybody that sticks up for me, is going to become a target. These people have nothing to do with this and they should not have to be referenced on this. I am -- I actually had to send out a message to all of these people and let them know that they were on the website, just in case anybody ever asked them, and I apologized to them.
Myhre:
Do you remember when you did that?
Capuano:
I don't remember exactly when I did that, no. I could find out.
Myhre:
My Lady, I'm going to be moving back into the emails. It might be a time for the break. I'm in Your Ladyship's hands.
Judge:
I would suggest we go another five to ten minutes unless there's a reason to take a break now.
Myhre:
No, I'm content to continue on, thank you.
Myhre:
If we could go then back to Tab 11, please, Ms. Capuano. Now, if we could flip to the next email after the last one we were looking at. This one's titled, "Your talk with Gabriel" dated January 27, 2015.
If we just look down to the -- where the arrows start, it says [as read in]:
Paddy, I can clearly see that maturity is not your strong suit.
-- I'll fill you in on one of the plans that I'm working on for you. What I'd like, very much, is to be able to add some "intimate" pictures of you to your web site. To do that, of course, I'd have to hire someone to get close to you, pretend to be interested in you. Eventually, gain your trust, then eventually sleep with you. That should take...what, about 3, 4 days? Difficult to find people that unscrupulous. But for the right price there's always someone willing to do what you want. Hooray America!
There's nothing criminally illegal about it. You may be able to pursue a claim in civil court, but I'm not going to worry about that.
This -- this was -- he actually had Gabriel on this email to me, where he was saying that he was going to hire someone to have sex with me so he could get pictures for the website. It is disgusting. It was -- it was sick. It was sick.
Myhre:
Okay. If we could flip to the next email, please, titled "More plans", dated January 28th, 2015. Ms. Capuano, do you remember if Gabriel was cc'd on this email?
Capuano:
I don't remember, but I'm pretty sure he was. I'd have to verify that, but Gabriel was put on almost every email he sent, so...
Myhre:
Okay. I'm going to read it out for you, Ms. Capuano [as read in]:
Desiree:
Being that my primary goal in life is for you to experience as much misery as possible, allow me to point out another way in which you've been manipulated. Gabriel being in your home serves that goal much better than if he were here with me. How so? His formative years were spent in an environment very different from yours, around people who viewed the world very differently than you. By now, you should have come to the conclusion that he's not going to assimilate to your way of life. He'll never see the world through your perception. Sage, on the other hand, has always been with you and only knows your way of life. You and Safe live harmoniously. Gabriel brings friction to that world of yours. By now you should have realized that he is and will remain a constant source of contention. Gradually his presence erodes the delicate fantasy bubble that you're trying to maintain, and so as I say, it serves my purposes better, him being with you.
A few months ago, I suspected you were starting to get fed up with how he was disturbing the balance in your made-up world which inevitably would result in you sending him away. So I opened these lines of communication because I know the one thing that is more important to you than anything else is to spite me and prove me wrong. By maintaining this email correspondence, I motivate you to keep fighting, i.e. to keep Gabriel with you to spite me so that his presence continues to eat away at your ridiculous fantasies.
I tell you this now because, in your mind, hearing someone else say these things which you know are true gives them validity, makes them more real and now you can add this knowledge to the list of things eating away at you. I know you'll never admit it openly, pride perhaps, but you know everything I'm saying is true.
Around this time, January the 28th, was there friction between Gabriel and Sage, or you and Gabriel?
Capuano:
He -- Gabriel had been back for a couple weeks so he was starting to warm up again, starting to open up.
And, no, at no point was Gabriel causing friction in my home.
I was just trying to develop and build a relationship with my son who I hadn't seen in a number of years. So it was a challenge to get to know each other and to build that bond
especially with Richard trying to destroy it at every turn.
But for Richard to think that the only reason I was keeping my son was out of spite for him is ludicrous.
Myhre:
Okay. If we could flip to Tab 12.
My Lady, I'll just point out that there is an email on the last page of Tab 11, but it's actually -- just because of the double-sided printing, that email is actually -- appears at Tab 12 as well. So I'm not skipping that email, it's just duplicated.
Myhre:
So, Ms. Capuano, at the beginning of Tab 12, the email titled, "Re mail" dated April 9th, 2015. This is an email from you to Richard.
Capuano:
Yes.
Myhre:
And you write [as read in]:
Richard:
I enjoy your banter as much as the next person, so long as said person is going through a quadruple root canal without pain medication and multiple broken bones. That being said, your stalking behaviour is really not welcome. Unless there is something pertinent pertaining to Gabriel, I have no desire to receive correspondence from you. Please cease and desist any and all communications that do not fall under the above guidance for communication.
Further, you do not have my permission to use my emails, photos, recordings, audio and visual likeness or any other item to include, but not limited to the website you've put back up. In other words, stop stalking me, stop posting things online pretending to be me. Stop assuming my identity through email and other sources and take down the domain and foolish website.
That serves as formal notice.
I believe at that time I had called the RCMP for the first time, and was asked whether I specifically told him to stop and to take the website down, which I had, but that was another attempt.
And the initial sentence, it was sarcasm and it was [indiscernible], but again, I received emails every day from him, multiple times a day. All of them were designed to just tear me down and make me feel horrible about myself.
So I didn't want him to see that it was working.
Myhre:
Was it working, Ms. Capuano?
Capuano:
He wasn't able to pull my family apart, but yes. Yes, it was.
Myhre:
And can you elaborate on that? What do you mean, it was working?
Capuano:
There were many days I didn't want to get out of bed. There were many days I didn't want to face anything. There many days it was really hard to just go about a normal routine. I was scared. I was always looking over my shoulder. I wouldn't make any new friends. I wouldn't talk to anybody. I was in my head going over all of the things that he could do, all of the things that he was going to do, all of the things he said he was going to do, all of the information that he was planning on getting, what information did he have. It was just constant.
Myhre:
My Lady, could we take the break now, please?
Judge:
All right, we'll do that. Members of the jury, we'll take the morning break now.
(JURY OUT)
Judge:
Anything to address before we break?
Myhre:
No, My Lady.
Judge:
Thank you.
Clerk:
Order in court. This court stands adjourned for the --
Judge:
Mr. Fox, do you have something?
Fox:
No, [indiscernible/not at microphone].
Judge:
All right. Thank you.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
DESIREE CAPUANO,
recalled.
Direct-examination of Desiree continuing
Sheriff:
The jury, My Lady.
(JURY IN)
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
Myhre:
Ms. Capuano, I'd like to continue on with some of the emails. And at Tab 12, we looked at an email titled "Re mail". The next email is titled "Parenting obviousness" dated April 26, 2015. You've read this -- you read this email when it was sent?
Capuano:
Yes.
Myhre:
Would it be fair to characterize it as criticism of your parenting.
Capuano:
It would, yes, it is.
Myhre:
Okay. I'm just going to highlight a couple of lines. If you look at the fourth paragraph, it starts [as read in]:
That is why I say you're an idiot who is a terrible parent.
One final note, you see where I called you an idiot, but I have the decency to explain why I believe you're an idiot. See how nice and civilized I am? When was the last time you backed up your claims against me?
Yeah. This is also an example of where he insults me and then tells me that I shouldn't be offended, or that he's nice and civilized about the fact that he's insulting me.
This criticism came because my son snuck out in the middle of the night and went up to the grocery -- the convenience store and bought an energy drink, and we found out and disciplined him. This email is telling me about why I should not have disciplined him.
Myhre:
If we could go to Tab 13, please?
Myhre:
And, My Lady, I'd like to do maybe I ought to have done when we created these books, which was number these pages, because this first email that starts, "Gabriel summer visitation 2014", continues for quite a ways. So what I propose to do is that we -- so we know where we're referring to, we simply go page by page and just write 1, 2, 3, 4 at the bottom. You're going to see that page 2 is a completely blank page. Let's all label that "2" so that we know where we are.
Judge:
Now, what about Ms. Capuano, who has the original.
Myhre:
Could -- maybe it would be helpful if she wrote those numbers too, My Lady.
Judge:
All right. I wonder if Madam Registrar should do that, please, in the original exhibit. We're at Tab 13. So we're at Tab 13, and the idea is to number every page so that we have 1, and then the back of that page --
Clerk:
The back is a 2.
Judge:
--- is 2, although it should be a blank page.
Clerk:
I know, double --
Judge:
Are you at Tab 13?
Myhre:
Okay.
Clerk:
Tab 13, and then it --
Myhre:
Madam Registrar, can I see that book?
Judge:
And we have a problem. And one of the jurors has a problem as well.
Juror:
Yeah, her book is not matching up with mine.
Clerk:
Yeah.
Judge:
Is that the new book that arrived today?
Clerk:
No. No.
Myhre:
Okay. My Lady, could I ask yourself and members of the jury some -- those of you who have a blank page, if you flip to the next -- the start of the next email, the one that says "Gabriel's summer visitation 2015", and the date is May 6, 2015 at 5:51 p.m. So May 6th, at 5:51 p.m.
Judge:
No. For me, the next email string -- all right, I'm -- I'll explain what's in my copy, Mr. Myhre. At Tab 13, there's the email string that begins "Re Gabriel summer visitation 2015". That's on the first page. On the second page, that's blank, and on the third page at the top is the second half of a list beginning "3. What childish tantrums?"
Myhre:
Does everybody have the email that -- for some of you, it might be the first email, for some of you it might be the second email that starts May 5th, 2015 at 9:26 p.m.
Unidentified Speaker:
Yes, that's the right page.
Myhre:
Okay.
Judge:
Yes. For me, that is page 5.
Myhre:
So it appears, My Lady, that in some of these copies we're missing that first email that starts April 26th, 2015, at 11:35 and that's missing from this exhibit copy. So I'm going to propose that we proceed without that. So that would mean the jurors who have the April 26th, 2015, 11:35 email should take out the first two pages, if you're content with that, My Lady. That would give us all, I think, the same thing.
Judge:
All right. So then if I understand you correctly, for some of us, at Tab 13, the first email is "Re Gabriel summer visitation 2015" and it is dated Sunday, April 26th, 2015. Some have that string of emails and some do not. And the string goes for about four pages, although one of those pages is blank in my copy, and what you're suggesting, Mr. Myhre, is those of us who have that string, simply remove it.
Myhre:
Yes, so we all have the same thing.
Judge:
Right. And so we would all then start with an email with the same title, "Re Gabriel summer visitation 2015", but the date would be Tuesday, May 5, 2015.
Myhre:
At 9:26 p.m.
Judge:
At 9:26 p.m. Now, is that clear for everyone?
Juror:
We just noticed in our books here that in -- in Tab 12, that we have the April 26th [indiscernible/not at microphone] or summer visitation 2015. That is in Tab 12 in this --
Judge:
So it got to the wrong tab.
Juror:
It looks like it, My Lady.
Judge:
All right.
Unidentified Speaker:
It appears in my Tab 12, the last page of it and also the first page of that "Re Gabriel's summer visitation", but it's only the first page of that email which, because it was on the back, I guess the Crown made photocopies of that and put the photocopy as the first page of Tab 13. So I'm not sure if the jurors have the entire email or just the first page.
Judge:
All right. Mr. Myhre, how would you like to deal with this?
Myhre:
So I think that that is what's happened, as they're two-sided. We just happened to get the first email from that string at the back of Tab 12, but I'd still like to proceed by just -- I can ask the questions I need to ask without those two pages.
Judge:
All right. So we'll go back to that plan. With those who have that email that's -- the string dated Sunday, April 26th, 2015, please just remove it, and then we'll start Tab 13 at the email that's dated Tuesday, May 5, 2015. Mr. Fox?
Fox:
Just so that I'm clear, then, should that be numbered as page 5 or should that be renumbered and we start back at 1.
Judge:
I think we'll start that at -- have you already numbered the exhibit, Madam Registrar?
Clerk:
No, I haven't touched it.
Judge:
And it will start that at page 1.
Clerk:
So the Tuesday, May 5th, 2015, 9:26 --
Myhre:
Will be page 1.
Judge:
Yes. That will be page 1.
Clerk:
I'll renumber them that --
Judge:
And number them on every page, so the front of the page is 1, the back of the page is 2.
Myhre:
So then the email that starts May 6, 2015, at 5:51 p.m. would be page 5.
Judge:
Yes.
Myhre:
And then page 9 is the email, May 6th, 2015, at 10:05 p.m., page 9? And then page 12 would be the email dated May 7th, 2015, at 12:32 p.m., page 12. And 13 is the last page in this email string.
Clerk:
I have 26 pages.
Myhre:
Twenty-six pages in Tab 13?
Clerk:
Yes.
Myhre:
We're only going to -- My Lady --
Clerk:
And number -- you said number them back to front, and so I have three here.
Judge:
Sorry, what do you mean by that?
Clerk:
I said I'd renumber them, as mine are all double-sided, so 1, 2, I've got 26.
Well, it might -- personally, I'm numbering all of these tabs so that I can find the documents again, but it's up to members of the jury if they wish to put numbers on.
Myhre:
Okay. Ms. Capuano, you've read this email string before. You participated in it.
Capuano:
Yes.
Myhre:
And it starts -- the jury doesn't have this, but on April the 20th, 2015, you sent an email to Richard telling you that Gabriel -- or telling him that Gabriel wanted to spend his summer visit with Richard.
Capuano:
Yes.
Myhre:
And you provided dates to Richard?
Capuano:
Correct.
Myhre:
Okay, and then I counted approximately 44 emails black and forth, that'd be roughly 22 each in this email string. Does that sound about right?
Capuano:
There were 44, that is correct.
Myhre:
And would it be accurate to say that this email string sort of devolved into an argument about what the word "itinerary" means?
Capuano:
Absolutely.
Myhre:
Now, in the course of this argument, Richard referred to you in a number of derogatory ways.
Capuano:
Correct.
Myhre:
On page 1, if you look at the very last paragraph, it says [as read in]:
Go look up the word "itinerary", you fucking moron.
If we go to page 9, the sixth paragraph, Richard writes:
Do you ever get tired of being the perpetual loser? Do you ever think to yourself, what's the point? Ever seem to you that maybe life is just too fucking hard and there's no point because we're all going to die in the end anyway? If not, well, that's too bad, the world is going to be a better place when you're no longer in it.
Ms. Capuano, did you ever wonder to yourself sometimes what's the point, as Richard asked you here?
Capuano:
Yes. And I can --
Myhre:
Did you --
Capuano:
-- just be easier to give up. Many times.
Myhre:
Can you give the jury some idea of the -- the extent to which you felt that way?
Capuano:
I never contemplated how to commit suicide, but there were many times I questioned whether I had the strength to keep going, whether it would end, whether I would get my life back or if this was just what I was going to deal with every day for the rest of my life now. It's -- this is what -- this is what I should just be used to, and I didn't know if I could get used to living this kind of life forever. But I'm -- I know who I am, and I know I'm strong enough.
Myhre:
Okay. We're going to flip to the next email, Ms. Capuano, the one that's titled, "The motivation for your behavior". This is dated May 7th, 2015 at 12:51 p.m., so it comes about 20 minutes after the last email in the previous email string; is that right?
Capuano:
Yes.
Myhre:
And Richard writes, top [as read in]:
The only reason you're being such a stupid cunt right now, well, always, really, is because you know that Gabriel would rather be with me than with you.
And he goes on to explain why he thinks that you're being -- giving the responses you were giving in that previous email chain.
Capuano:
Yes. Why I was standing up for myself and not just accepting, why I was actually setting rules and guidelines and stipulations for visitation.
Myhre:
Ms. Capuano, I think you said you were -- thought you were standing up for yourself?
Judge:
Just a moment, please, Mr. Myhre. Mr. Fox has a concern.
Fox:
I'm sorry, I'm just having difficulty hearing again.
Judge:
All right.
Fox:
Not hearing Ms. Capuano.
Judge:
Mr. Myhre, if you keep your voice up and Ms. Capuano will more likely keep hers up.
Myhre:
Thank you, My Lady, I'll try. Apologies, Ms. Capuano, I'll try to keep my voice up.
Now, you -- I think what you said was you felt you were standing up for yourself in that previous email.
Capuano:
Yes. I was actually, in my own way, trying to control the situation for one of the first times, determine the guidelines, the stipulations and the rules for Gabriel's visitation which is something that I hadn't necessarily done before,
and it's my belief that that's why he called me a stupid cunt.
Myhre:
That's how you understood his response?
Capuano:
Correct.
Myhre:
If we could go to the next email, please, the one titled "Belligerence" dated May 7th, at 7:01 p.m., and Richard wrote [as read in]:
For someone who claims not to care, you sure spend a lot of time trying to get a rise out of me.
If I believe your intention was to try to annoy me, to anger me, then I will phrase my responses in a way that makes it seem I am annoyed so that you will believe you are succeeding and you will continue. You have an incredible habit of saying things that shoot me in the foot and that contradicted previous statements. One day when Gabriel is older and starts forgetting what you're like and starts thinking maybe you deserve another chance, like I did, then I can show him all of these emails and how you lie incessantly to get what you want and how you betray people's trust and how you play on their guilt with a passion to get what you want from them, and I'm sure that will be enough to convince him not to get back in contact with you.
You see, it will be your own words and actions that keep Gabriel away from you once he's no longer there under court order.
That has been my plan since March 2013, and you consistently played right into it. Because you're too arrogant to ever acknowledge that you've been beat, or that I'm better and smarter than you. See, I can even come right out and tell you and it won't matter. You'll just keep getting suckered right into it.
So another example of Richard telling you what his plan was.
Capuano:
Yes. The fact that he tells me in this email that he can tell me what his plans are and it won't matter, because he's smart enough to have covered his tracks.
Myhre:
The next email is titled "Petition for annulment". Do you know what Richard was referring to when he said "petition for annulment'?
Capuano:
Yes, I've submitted -- began the paperwork for an annulment.
Myhre:
Annulment of...?
Capuano:
The marriage between him and I.
Myhre:
When did you realize that you were still legally married?
Capuano:
It wasn't long after -- it was probably around 2005.
Myhre:
And so would it be fair to characterize this email as Richard saying it doesn't really matter if I appear. Either way I will accomplish what I want to.
Capuano:
Yes. That no matter what, he intends to [drag this] out and keep me in court for years and never grant the annulment.
Myhre:
And we see the last paragraph [as read in]:
You see, careful meticulous planning, that's how you prevail or I'm lying about everything in this message just to mess with you.
Did you ever determine whether or not he was telling the truth in this message?
Capuano:
He did not appear for that hearing, and the annulment was granted. It's finalized.
Myhre:
The next email dated May the 11th, 2015, titled "Website updates" [as read in]:
Desiree:
As promised I posted all the emails up to this point to the site. You can view them at http.www.desireecapuano.com/mail, but I'm sure you already know that. I find it fascinating that even though you know every single piece of correspondence with you is going to be posted publicly on a website hosted on a domain with your name, you still allow yourself to get overly emotional and say things that make you look like an idiot. I would think you'd be a little more cautious in what you say.
Is that an email you received on May the 11th, 2015 from Richard?
Capuano:
Yes. Yes.
Myhre:
The next email dated May 15th, 2015 is titled "The most difficult border in the world to cross". This was an email in which Patrick sent you pictures of a place at the border where he said he could cross the border.
Capuano:
Where he says he does cross the border.
Myhre:
How did that make you feel?
Capuano:
Scared. He shows me pictures of a place where there's no law enforcement, there's no immigration, there's no custody, there's nobody to check his identity, there's nobody to see if he's got guns on him, there's nobody. He -- it's just a park and he just walks across and he shows me pictures of it, tells me how easy it is.
Myhre:
The next email is titled "Search engine results" dated May 23rd, 2015. I'll read the first couple paragraphs [as read in]:
Hello Desiree:
Thought you might like to know that when I Google Desiree Capuano, the website is the second entry on the list. Not bad for people that might want to Google you. When I Google Desiree Tomlin, the site is the 18th in the search results. Need to improve this so people who don't know you changed your name can find it easier, people you went to grade school with and such.
And is this an accurate copy of the email you received on that day, other than as you've told us before, the actual email address was --
Capuano:
Correct, yes.
Myhre:
Do you remember in the summer of 2015 whether or not Gabriel -- you sent Gabriel to visit Richard in Canada?
Capuano:
Yes, I did.
Myhre:
Do you know roughly what dates?
Capuano:
End of May through July. I was under court order to provide reasonable visitation and communication between Gabriel and his father.
Bless you.
Myhre:
Do you remember when that order was made?
Capuano:
The last hearing that we had had. I'd have to look at records.
Myhre:
Okay. If we could go to Tab 14, please. Email titled "Re automobile accident" dated June 12th, 2015, and Ms. Capuano, if you could flip to the fourth page of this email string, the last page of this email string. If I could summarize this email string, this is you and Richard arguing about what happened around Gabriel being born prematurely.
Capuano:
Correct.
Myhre:
What we see on the last page, the second-last full paragraph, it appears Richard wrote [as read in]:
Now what I would like from you is for you to deny these claims and call me a liar. I will then gladly post the medical, insurance and police reports to your website. Yes, medical reports are confidential, but you live in the greatest country in the world where anything can be purchased, yay America.
So, first of all, do you know whether Richard had obtained any of your medical records?
Capuano:
I don't know.
Myhre:
At that point in time, did you think that he could or not?
Capuano:
I think he's capable of getting anything he says he's going to get.
Myhre:
Do you know whether he had bcc'd to anybody on this email?
Capuano:
I have no idea.
Myhre:
Did the possibility that he had cause you any concern?
Capuano:
Only because I don't know who he would have bcc'd. I don't know if it would have been more work colleagues or friends or to people he knew. There's no way to know. If you want to point out this is -- this is the first notification that I ever got that he believes that our son was premature because I punched myself in the stomach,
and that is the story that he gave to our son while he raised him.
Myhre:
How did that make you feel knowing that that's what your son had been told?
Capuano:
I had to talk to him about it, and he told me he already knew the story. I had -- it was -- it was really baffling. He was there during the whole event. He -- Richard knew what had happened. I'm not really sure where he got that from.
Myhre:
Now, I'm start -- just going to stop you there, Ms. Capuano. The question is how did it make you feel?
Capuano:
Disgusted. Just -- just another lie.
Myhre:
Okay. If we could go to the next email, please, Ms. Capuano. It's titled "Re status update", dated June 15th, 2015. If we went to the bottom of this page, it appears that it starts with an email on June 13th, 2015, and it says -- Patrick wrote [as read in]:
And goes on to say what they've been up to. Then in the last full paragraph on this page:
I don't understand how it is that he's been with you two and a half years and you've not taught him anything, yet you still try to convince him you're a good parent.
Then it appears later that same day if we just go up from the start of that email, says on Saturday, June 13th, so that same day the first email was sent. Patrick wrote [as read in]:
What, no comeback? Could it be that you finally accepted that you really are a terrible parent and an overall bad person?
June 15th, some two days later, you wrote back [as read in]:
I understand that you feel the need to document every milestone of parental responsibility to prove you'd do anything beyond supporting a 14 -- with way too much free money. Do you want a good boy? Well, good boy, Richard, I'm so glad you taught your son something, way to go.
And then the same day there's a response at the top from Richard, and the last paragraph says:
Why do you want your children to remain incapable of doing anything on their own so they have to depend on you? That's terrible parenting, but then you're a single mother. That's what all single mothers do. Single mothers don't want to raise children, they just want to have babies. I know, because I grew up around many of them.
So the question, Ms. Capuano, is how did it make you feel, Richard telling you that he was telling Gabriel that you like Sage more?
Capuano:
He was telling Gabriel and convincing Gabriel that I was trying to play favourites, but the reasons he gave Gabriel weren't true.
Myhre:
And how did that make you --
Capuano:
It was very frustrating. It was very frustrating because then Gabriel came home and I had to deal with the repercussions of that.
Myhre:
If we could go to the next email, please. This one is titled "Re Carrington College", and if we look at the bottom of the page, it appears to start with an email on June 27th, 2015. Patrick wrote [as read in]:
Hello Desiree:
May you confirm that you've taken a position with Carrington College in Tucson. If so, then I should update your website. If you have any interesting quotes or pseudo-facts that I can put on the site, but I can't imagine there'd be much of a need for a systems analyst at an individual campus of a demi-college. Wouldn't that be a bit of a step down from what you were purportedly doing at Apollo? But since the campus is substantially smaller, then you'd -- then you'd be less anonymous and word of your website and your backstory should spread quickly.
Now, I think you told us yesterday that your job with Apollo ended --
Capuano:
In --
Myhre:
-- at the end of September 2015. Do you remember whether or not at this time, June 27th, you were still employed by Apollo?
Capuano:
Maybe it was 2014 that I was laid off. I may have been mistaken.
Myhre:
Do you want to just think about that for a second?
Capuano:
Yeah. Yeah, it must have been 2014 then, sorry.
Myhre:
Now, in June of 2015, did you take a position with Carrington College?
Capuano:
No. No, I was still employed with Apollo at that time. I -- I was laid off in September of 2015. I moved to Tucson, and I kept my job in Phoenix and I drove up to Phoenix for the last couple of months of my tenure there. I was still employed with Apollo at this time.
Myhre:
Okay. So you weren't looking for a job in June of 2015.
Capuano:
No.
Myhre:
Okay. Did this email mean anything to you, or...?
Capuano:
Yes, it meant that he was trying to find where I would be working. He was researching places and he had already indicated that if he had -- he would -- as soon as he found out where I would be working, he would be informing them, just like he did at Apollo, which meant he was going to try to ruin any new job that I got, and Apollo was having difficulties, they were going through lay-offs at that time.
Myhre:
So then above that, there's another email from Richard and then on June 28th, 2015, it says Desiree Capuano wrote -- you wrote [as read in]:
And then above that, the first paragraph on this page we see Richard's response [as read in]:
Is that because you're embarrassed about having to take such a step down? You think that if you don't tell me, that I won't be able to confirm it anyway? Can I not just call HR and ask them, and as long as you use your social security number, then couldn't I just run a credit check on you?
I was scared when I got that, because at that point he'd basically just told me he had my social security number.
Myhre:
Okay. Ms. Capuano, could we flip back in this book to Tab 7, please. And what we see here is -- says "type of blogs" on the first page. It says "recent posts" and then it says "popular posts" and then near the bottom of the page, it starts listing blog posts, starting with [as read in]:
And then the list continues over the next page for several pages. I believe there are about 90 blogs listed; does that sound roughly accurate?
Capuano:
Based off of this documentation, yes. I don't know, I haven't read any of the blogs before the hearing.
Myhre:
You hadn't read any of these before the hearing?
Capuano:
No.
Myhre:
Now, if we look at -- if we go past the list and again, My Lady, I apologize for the lack of page numbers. The way these -- the blogs are printed out here, if you flip to the very bottom of the page and you see a title of a blog that says, "My New Home and Job", that starts after the list of the blogs. It's dated July 13th, 2015 over on the right-hand side.
Capuano:
Yes.
Myhre:
You can see under that it says "Perspective" -- sorry, under the title, "My new home and job", it says [as read in]:
Perspective Desiree 306 viewers, views zero comments.
And its website. Do you have that there, Ms. Capuano?
Capuano:
Yes.
Myhre:
Do you know who Green Valley Hospital is?
Capuano:
Yes.
Myhre:
Okay, what -- what do you know about that?
Capuano:
I submitted my resumé to them for multiple positions.
Myhre:
Now, this blog is dated October 13th, 2015.
Capuano:
Correct.
Myhre:
When did you submit your resumé to them?
Capuano:
I was laid off on September 30th of 2015, and I'd been submitting resumés for all potential employment during those two weeks. They actually had multiple openings so I submitted for multiple openings.
Myhre:
The two weeks following September 30th, you were submitting resumés?
Capuano:
Correct.
Myhre:
And that included to Green Valley Hospital?
Capuano:
Correct.
Myhre:
And did you ever hear from Green Valley Hospital?
Capuano:
No.
Myhre:
Now, Ms. Capuano, it might be easiest to find the next blog if you just start from the back, the last part of Tab 7 and flip backwards until you find the blog, "Oh, to work at Pima Community College". And so that blog contains a picture that looks --
Okay. So tell the jury how that application went. Did you ever hear from them?
Capuano:
Yes. I applied for a position with Pima. I went on a series of interviews and I was made an offer. It was a very good position. I was working on a contract at the time, so it was substantially more money. It was a full-time position, all benefits for me and the kids. I had a starting date. They'd already given me the offer letter which I had signed, and when I asked them if I was good to give my two weeks' notice at my current job, they said, "Hold on."
Over the course of the next couple of weeks, they went back and forth with their legal department and determined they couldn't take the risk of employing me because of the website, and so they withdrew their offer.
Myhre:
And was that around May 2016 that was happening?
Capuano:
Yes.
Myhre:
Okay. We're going to go back to the emails, Ms. Capuano, if we could look at the last email of Tab 14. So would it be accurate to summarize this email as Richard saying his lessons when he's a parent and going through hard times are better than your parenting approach.
Capuano:
Oh, yes.
Myhre:
And then the last sentence of that email, Richard wrote [as read in]:
He doesn't hate you because of what I tell him about you. He hates you because of what you do.
The next email, the first one at Tab 15 titled "Status", dated July the 5th, 2015. Was -- do you remember, was Gabriel with Richard in Vancouver at this time?
Capuano:
Yes.
Myhre:
And I see the first sentence [as read in]:
Hello, Desiree:
One, yes, Gabriel and I are having fun at your expense.
The only remaining reason I can think of is that you do it to spite me, but that's backfiring on you because I have already worked out a plan that involves Gabriel remaining with you until he turns 16, then moving to Ontario where neither you nor the U.S. or Canadian courts can touch him, and I've explained that plan to him. He doesn't like it, but he understands and appreciates the motives.
So by insisting on keeping him with you, aren't you really just spiting yourself? Aren't you really just subjecting yourself to the additional difficulties of providing for a child that looks down on you, that considers you below him because of your refusal to be anything more than a white trash pothead, because of your inability to make any good or proper decisions, because of you're continually doing things that adversely affect him and giving him any choices?
And then goes on to list 51 ways that you are being made fun of.
Capuano:
Correct.
Myhre:
Who did you understand Richard to be referring to when he said "we"?
Capuano:
Him and Gabriel.
Myhre:
Do you know whether Gabriel was cc'd on this email?
Capuano:
Yes.
Myhre:
The next email ["Babying Gabriel"] dated July 12th, 2015, Richard wrote [as read in]]:
Gabriel tells me that when you bring him to the airport, you get a security pass and escort him right to the point that he boards the plane. Are you fucking retarded? Why do you single mothers always baby their kids? Dude, he's 14, for Christ's sake. No wonder when he arrives here he seems incapable doing the smallest things.
Yes. I understand some parents handle things in different situations, but nothing I did was right by him. Didn't matter.
Myhre:
Okay. The next email titled "Re contact information". If we flip to the second page of this email and look at where it started, at the bottom, the last two paragraphs, Patrick wrote [as read in]:
According to Google maps, that address is a U.S. post office. You are legally required to provide me the address where Gabriel will be physically residing.
Why didn't you provide Richard with your mailing address -- or your home address.
Capuano:
Two reasons. One, he was outside the country. He was not supposed to enter the country, so there should be no reason for him to need a physical address, and two, I didn't want it up on the website.
Myhre:
And it goes on. If we look at the -- further up the page, this same page that we're just looking at, the second full paragraph, Desiree Capuano wrote [as read in]:
As long as Patrick Fox continues to put my personal information on a public website, it will not be provided.
And it goes on. If we look, flipping back to the first page, he demands the address again. You don't give it to him, and then his final response at the top of the page [as read in]:
Since I've not heard back from you with the current address at which Gabriel will be residing, I will not be transporting him to the airport.
Yes, he was telling me in this email thread that unless I gave him a physical address, he's not going to return my son to me.
Myhre:
The next email titled "Re update to your site", if we look halfway down the page on July 13th, 2015, Patrick wrote [as read in]:
Desiree:
I've updated some of the information on your site. Let me know if anything is inaccurate, namely on the home page and on the news page. I was sure to include your new address, a picture of your presumed boyfriend and a picture of your new home.
And then if we look up at the email at the top of the page:
Desiree:
Oh, I should mention before you freak out at Gabriel and ground him for telling me where you live, I already had the address from the times you'd previously spent the weekends at the house. Given the address, finding the name of the person who owns the property is a simple public records check. Given the name of the property owner, a simple Google search provides his Linked In and Facebook profiles. From the Linked In profile, I could see that he also worked at Apollo Group at the same time you did. Using basic deduction and given how well I know you, I was able to conclude that you were intimately involved with Mr. Pendleton. Why else would you take your kids and spend numerous weekends at his house which is hours drive from where you live. So, you see, Gabriel told me nothing. Any fool with partial intelligence and a bit of background on you could figure it out.
He was tracking Gabriel through the use of his cell phone. He was monitoring the GPS location of the cell phone. That's how he figured it out.
Myhre:
That's what you believe?
Capuano:
Yes.
Myhre:
The next email, "Gabriel's return", dated July 14th, 2015 [as read in]:
So tell me, Desiree, how was Gabriel upon his return? How's his demeanour seem? Does he seem happy to be back with you? Has he been sharing with you all the things he did, his wonderful accomplishments? Is he excited about his new home? Is he looking forward to starting his new school? Or has he been withdrawn, keeping to himself, spending most of his time in his room? And as I've said repeatedly, the misery that will bring -- that will bring you and your home is far greater than a court order for you to return him. The court order gives you the opportunity to get people's pity, a son that hates you because you're a narcissistic fuck-up, leaves only you to blame.
Do you remember around that time how Gabriel was when he returned home from his visit with Richard?
Capuano:
That one was worse than any of the others. That was also during the same visit where he had told Gabriel that I loved my other kid more, and given him reasons. When Gabriel got back, he was like a completely different person. He wouldn't come near me. He wouldn't talk.
He was excited for the move before he went to Canada. And when he got back, he was just scared, and it broke my heart.
Myhre:
This might be a good time, My Lady.
Judge:
All right. We'll break for lunch now, members of the jury.
(JURY OUT)
Judge:
Mr. Myhre, I'd like to raise an issue -- again, it's hearsay evidence -- relating to the application at Community -- Pima Community College. Bearing in mind that Mr. Fox is self-represented, I have a concern that that evidence went in without objection and without any suggestion that there are limits on the use to which the evidence can be put. I'm thinking that a mid-trial instruction may be in order. Do you agree?
Myhre:
I'd support that.
Judge:
I let it go at the time because I wasn't sure whether there would be later emails that would, essentially, confirm the hearsay evidence given, but I didn't hear anything.
Mr. Fox, what I am getting at is that Ms. Capuano testified that she was told by Pima Community College that she wouldn't be hired, they'd be withdrawing their offer because of the website, and that was the reason that her offer was withdrawn, and that's considered hearsay evidence. It was -- what was said, if it was said, was said by someone who's not here to testify and not available to be cross-examined. So the evidence that Ms. Capuano gave can be considered only as going to her state of mind, what she believed, what she understood.
Actually, I'm not sure it can even be -- I'm thinking out loud there. I'm not sure that it can, because that would, essentially, reinforce the truth of the content. I think the jury has to be told that they have to disregard that evidence and they can take from the evidence simply that an offer she had been given was withdrawn.
Mr. Myhre?
Myhre:
My Lady, I'm just thinking we should address this without Ms. Capuano here.
Judge:
All right. How do you propose that we manage that? There's a sequence here that takes a bit of time.
Myhre:
Right. Well, if Your Ladyship's content to do it in her presence, then I'll just go ahead.
Judge:
Well, if it's something that -- if it's not appropriate that she be here, she shouldn't be here and we'll have to --
Myhre:
It --
Judge:
-- find a way --
Myhre:
It won't affect her evidence. I mean, we've covered that. The Crown's moved on. We won't be revisiting it.
Judge:
Well, is it --
Myhre:
So I don't see how it would affect her evidence.
Judge:
Well, there's always the potential that it would affect it later.
Lagemaat:
I would worry it might affect her --
Judge:
All right.
Lagemaat:
-- cross-examination, My Lady.
Judge:
Then, we had better stand down for a couple of minutes, make the arrangements for Ms. Capuano to leave the courtroom and begin her lunch break, and then we'll resume in a couple of minutes times and address this.
Myhre:
Thank you, My Lady.
Judge:
All right. Just stand down now.
Clerk:
Order in court. This court stands down.
(WITNESS STOOD DOWN)
Discussion of Desiree's claims about Pima Community College being hearsay
Myhre:
So, My Lady, the Crown position, of course, is that that evidence is not tendered for the truth of its contents. That's part of the narrative, and it explains why Ms. Capuano feels the way she does, and that's the relevant evidence. She felt that she was denied a job for that reason, and the relevance of it. And I think a jury instruction along the lines you first mentioned, but not going as far as you then went, would be appropriate.
Judge:
It might be easier to give a jury an instruction to that effect if the evidence of what she was told hadn't been led. But, once that's been said, it's difficult to tell the jury to disregard that evidence, but -- or to view it as only going to her state of mind and not for anything having to do with the truth. I'll see what I can draft.
Myhre:
And, My Lady, I think there is -- there is other evidence that the Crown is tendering in the same fashion for the same reasons. For example, things Gabriel said to her. What's relevant is Ms. Capuano's perception of what's going on, not how Gabriel was feeling or what Gabriel actually did. It's what Ms. Capuano's perceiving. And so I'm just saying I think a generalized instruction would be appropriate, perhaps with specific examples like the one about Pima Community College.
Judge:
Well, I'd prefer that more care be taken in leading the evidence in the first place than there be a generalized instruction, because there may be a difference between the use that could be put to evidence of what Gabriel said to her as opposed to what the legal department at Pima Community College said to her. So I'm going to ask you to try to avoid the type of problem that we're dealing with now, but thank you for your submission about what you see as a suitable instruction.
Now, Mr. Fox, you have a submission too?
Fox:
I just wanted to respond to Mr. Myhre's comment about possibly entering some statements that Gabriel may have made to Ms. Capuano. That I would strongly oppose calling, especially since Gabriel is not present to confirm any of it. In my exper -- well, I believe that much of what Ms. Capuano would say about her relationship or any communication with Gabriel is going to be extremely [indiscernible/not near microphone].
Judge:
All right. Thank you. So, Mr. Myhre, you need to keep that in mind as you continue with the evidence. Bear in mind that there may be objection to certain portions if you consider it appropriate to try to lead them.
Anything else?
Myhre:
Not from me, My Lady.
Judge:
Mr. Fox?
Fox:
Oh, I think maybe Mr. Lagemaat might have some concerns that he mentioned on direct -- or I mean on cross there might be some issues, but if this hearsay --
Lagemaat:
That was regarding whether she was going to be here to make this submission.
Fox:
Oh, okay.
Myhre:
My Lady, I think I'll be done direct with Ms. Capuano roughly by the time of the break this afternoon, maybe a little before, maybe a little after, just to alert my friends to where I think the timeline is.
Judge:
All right. Thank you.
Lagemaat:
And then, I can say, My Lady, I will need to spend some time with Mr. Fox following that, downstairs. And, given the considerable amount of materials I have, that could be at the end of the day before I finish.
Judge:
All right.
Lagemaat:
Or I can -- I can show My Lady that --
Judge:
You don't need to give me visual aids --
Lagemaat:
Thank you.
Judge:
-- Mr. Lagemaat. Shall we talk at the end of the day or perhaps at the afternoon break about timing for tomorrow?
Lagemaat:
Thank you, My Lady.
Judge:
Thank you.
Clerk:
Order in court. This court stands adjourned till 2:00 p.m.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
(JURY OUT)
Direct-examination of Desiree continues
Myhre:
My Lady, did you want to address the topic of a potential jury instruction?
Judge:
Yes. I have a trial instruction. Is there any difficulty with my giving it in the presence of Ms. Capuano?
Myhre:
Not for me, My Lady.
Lagemaat:
Not for me, My Lady.
Fox:
Not for me.
Judge:
Could we -- do you wish to review -- I drafted it beforehand. It's brief. It's along the lines that were discussed before lunch.
All right. Could we have the jury, please.
Sheriff:
Yes.
DESIREE CAPUANO,
recalled.
(JURY IN)
Sheriff:
The jury, My Lady.
Judge:
Members of the jury, before we go on with Ms. Capuano's evidence, there's an instruction I need to give you about a portion of her evidence before lunch, probably 10, 15, 20 minutes before lunch.
Ms. Capuano was asked about a blog titled "Oh, to work at Pima Community College," and she was asked about an application she made to that college for employment, which she said was in or around May of 2016. She testified that an offer was made to her, with a starting date, but that when she asked if she should give her two-weeks notice at her contract job, there were further discussions and the offer was withdrawn. Ms. Capuano then testified that the offer was withdrawn because of the website.
That part of her evidence was hearsay evidence and you can use it only in the way I'm about to tell you about. It is hearsay evidence because nobody is here from Pima Community College to testify in this courtroom and be cross-examined about the reason the offer was withdrawn. You must not use Ms. Capuano's hearsay evidence about why the offer was withdrawn as evidence of why in fact the offer she described was withdrawn. You can use her hearsay evidence only as evidence of what she believed the reason to be.
So I'll repeat that last part, and it's referring to the hearsay evidence about why the offer was withdrawn. You must not use that evidence for why in fact the offer Ms. Capuano described was withdrawn. You can use the evidence as evidence of what Ms. Capuano believed the reason to be.
All right. Thank you for your attention to that instruction.
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
Myhre:
Ms. Capuano, if we could continue where we left off with the emails. Tab 15, we had finished looking at the email "Gabriel's return", and we -- I would now like to direct you to the "Ridiculous tattoo on your finger", dated July 14th, 2015.
Capuano:
Yes.
Myhre:
And the email states [as read in]:
I heard you're in the process of having that tattoo removed. Wonderful, more money you're spending on yourself while you make your children live like vagrants. Nice. But, you know, white trashiness is a mindset. Removing a tattoo won't make you less trashy. It might just make it easier to conceal until you open your mouth anyway.
Another example of the way that Richard would speak to you.
Capuano:
Yes. He also got this information from our son, so for me, it was another example of how he was taking innocent things that my son would say to him in passing and use them to try to hurt me.
Myhre:
The next email titled "Gabriel's infection" dated July 18th, 2015. Do you know whether Gabriel was cc'd on this email?
Capuano:
I don't. I would have to check. He might be, but I don't know for sure.
Myhre:
And I'll just read a few of the lines [as read in]:
Desiree:
What the fuck is wrong with you? You're still not taking Gabriel to the doctor about the infection on his ear and neck.
What the goddamn fuck is wrong with you? Get the fuck off your lazy fucking ass and take your fucking son to a fucking doctor, you stupid piece of shit. How the fuck do you get off calling yourself an excellent mother?
How did this -- do you know what he was referring to, an infection?
Capuano:
Yes. Before Gabriel went up to Canada for a visitation, he had a sore on the back of his ear, put Neosporin on it,
and then he went up to Canada where apparently it spread to cover his neck and both ears.
So when he came back, the rash that he had covered ears and neck.
He had some medication, ointment, that he apparently got up in Canada, so we were going to finish that out and then I was going to take him to the doctor.
It took us actually a long time to get rid of that. It was some form of a staph infection. We tried various different things. Coincidentally when he dyed his hair, the rash came back. So we don't know for sure what caused it. It could have been an allergic reaction to hair dye, but we're still not sure.
But we did eventually get it taken care of. It took about six weeks, but we eventually got it.
Myhre:
How did this email make you feel?
Capuano:
Furious.
Myhre:
The next email, titled "Re contact information", and here, if we look about halfway down this first page, we see the first inline portion on July 18th, 2015. You wrote [as read in]:
Richard, have you stopped to consider that if what you have was a real address or not, just an intentional misdirection, that you would be endangering Gabriel's safety and privacy with your amateur website,
publishing an address your son would potentially be residing at. Good job, classy, real classy.
Did -- did Richard in fact have your correct address?
Capuano:
Yes.
Myhre:
Okay. And so what did you mean when you said he would be endangering Gabriel's safety?
Capuano:
There's a lot of information on the website that could be insulting to a great many people. To put the address of the website also on -- the address of my home also on the website was a risk to everybody in the house, including his son.
Myhre:
Okay. If we look at Richard's response, the second paragraph from the top [as read in]:
I've considered whether publishing the address of an openly racist anti-Latino who happens to be physically present at the same house which my son is also physically present at, and after careful consideration have concluded if such an event as angry Mexicans showing up to express their discontent with you and your white supremacist beliefs were to occur, the focus of their attention would be on -- would be you, not Gabriel. The Latino people are generally honourable and would not harm an innocent child if they had issues with the child's misguided mother. So, no, I don't believe Gabriel would be put in danger -- put in any danger by publishing your address.
And what did you understand him to mean, or how would you summarize what you understood from that?
Capuano:
He selected one potential scenario that could cause danger, and determined that as long as that one potential scenario was not going to happen, that myself and the family were safe. But that's just one potential scenario of what could happen that would cause us harm. A great many people besides angry Mexicans could show up at my house for any number of reasons.
Myhre:
Did --
Capuano:
So it did not alleviate my fear.
Myhre:
If we flip the page to the next email in -- with the same subject line, "Re contact information", sent the same day, July 18th, 2015 about a -- it looks like it would be about 15 minutes after the previous one. There's another response from Richard, and he goes on to say [as read in]:
I also considered the legal implications if something were to happen like, for example, a pissed-off Mexican showed up at your house and attempt to cause you -- harass you in retaliation for your racist views. Some might say I was criminally negligent by publishing your address along with your racist comments. They might try to argue that had I not done so, then you would not have been harmed. However, both your racist view and related comments and your current address are all points of fact. The publishing of facts simply cannot be considered negligent, criminal or otherwise. I'm pretty sure not a court in America would hold me responsible for anything that might occur to you as a result of you openly expressing racist, anti-Latino sentiments while living in an area with a very high Mexican population.
Another thing you can't prevent me from publishing is your social security number. There is no law in Canada which prohibits a person from publishing the non-Canadian identifying information of another person who's not in Canada, and even if it were illegal under U.S. law, I'm not in the U.S. and therefore not subject to U.S. laws.
The next email,
again titled "Re contact information", this is the next page, July the 19th, 2015. If we look at the bottom of the first page, it says, on July 19th, 2015, Patrick wrote [as read in]:
Allow me to also point out that of course I had considered that I could potentially raise the issue of Pendleton publicly disclosing that he has top secret clearance which, in itself, would likely result in him losing such clearance if in fact he did actually have it, which I suspect by the fact that he publicly advertised, that he does not. However, since I have no issue with Pendleton and he has not harmed me in any way, he is purely collateral to this matter, and it would be against my morals to cause harm to a person collaterally in order to adversely affect you.
That is, of course, one of the fundamental differences between you and I. You would not think twice about harming an innocent bystander in order to reach your target, case in point, Liz, though I suppose I could rationalize it by saying I was just doing my duty as a patriotic citizen, right? But, no, I would not stoop to such levels.
Now, if we go up to the top of that same page -- so this email, 10:56, so it looks like it was written 50 minutes after the one we've just read. Richard wrote [as read in]:
Now that I think about it, this situation does raise a few disturbing questions actually. A security clearance is based on a person's character as well as their actual arrest and or convictions. A person who cohabits with a clearance-holder or applicant is also subject to a background check, usually just as stringently as the clearance-holder himself.
I just don't see how it's possible that Pendleton could possibly maintain a security clearance while also cohabiting with you. I mean, wouldn't a responsible patriotic citizen feel a sense of obligation to report such a situation to the proper authorities? How can a person with such poor judgment that he would be seriously committed enough to a woman that he would have her move into his house with her two children, be trusted with a security clearance, a top secret clearance at that.
Does James Pendleton have some form of security clearance that allows him to take jobs that require security clearance?
Capuano:
Yes.
Myhre:
What did you understand from this email from Richard?
Capuano:
I took this as a veiled -- veiled threat that he was going to contact authorities regarding the security clearance of James Pendleton.
Myhre:
How did that make you feel?
Capuano:
Very scared. I know what it felt like to go through that at Apollo, and I did not want James's livelihood damaged because of me, and I didn't want him to have to go through that same embarrassment and humiliation.
Myhre:
Okay. If we could go to Tab 16, please, the first email titled, "Forward TKT" with a number, DesiréeCapuano.com, and if we look halfway down the page, there's an email from JamesPendletonJunior@gmail.com to abuse@web.com. Do you -- had you seen this email --
Capuano:
Yes.
Myhre:
-- before? What is -- what is the email that follows there?
Capuano:
This is James sending an email to the abuse department of the website host company, letting them know that this website was up
and that it was damaging and that -- asking them to look into it and try to take it down, then said they forwarded it over to Mr. Riggs. Then he put it on the website.
Myhre:
Okay. Do you know if this complaint from James had the effect of having the website taken down?
Capuano:
It absolutely did not.
Myhre:
Okay. If we could go to Tab 17, please. This email is titled "Re Gabriel's visit for winter break, 2015", and if we look halfway down, we see you're initiating email to Richard sent November 14th, 2015, in which you basically bring up the subject of Gabriel coming to visit for the winter break and you put some stipulations on it.
Capuano:
Yes. Richard had sent me emails requesting Gabriel for the winter break, so this was my email to him with the stipulations.
Myhre:
And Richard's response was essentially -- this was -- we see in the first line [as read in]:
There will be no negotiating and I will not agree to any terms you try to impose.
You will soon be homeless; you have no money; nobody believes anything you say anymore; nobody is coming to your aid or defence; you will not be able to secure another job as long as that website exists - and it's not going anywhere as long as you're alive.
Your boyfriend has reached the point of being fed up, and only his sense of decency towards Sage keeps him from kicking you guys out. He knows Gabriel will be fine because of me.
Do you remember in November of 2015 whether you had yet secured a job?
Capuano:
I -- I was still working the contract.
Myhre:
So I take it after you were laid off by Apollo in September 2015, you were then able to obtain a contract somewhere?
Capuano:
Correct. The same one I was told not to give notice to.
Myhre:
Right. Okay, Ms. Capuano, I'd like to talk for a minute about some of the different steps you've taken to try to get that website taken down. We've heard about some of them already. I'll summarize. We saw an email where you asked Richard to take the website down.
You had taken steps to have it blocked at Apollo when you were working there.
Capuano:
Correct.
Myhre:
Do you know whether or not Gabriel ever asked Richard to take it down?
Capuano:
He did.
Myhre:
And what -- tell us what happened.
Capuano:
He did ask.
Myhre:
How do you know that?
Fox:
Objection.
Judge:
All right. What's the nature of your objection, Mr. Fox?
Fox:
I believe that it would be hearsay.
Judge:
All right. Can you be careful of that, please, Mr. Myhre, and approach the matter in a way that will not elicit hearsay.
Myhre:
How do you know that Gabriel had asked Richard that?
Capuano:
Gabriel called Richard and had me -- he put him on speakerphone.
Myhre:
So you were --
Capuano:
Richard and I and Gabriel were all in the same room.
Myhre:
Okay. What was said by Gabriel to Richard when you were sitting there?
Capuano:
Gabriel told him that he needed to take down the website and he needed to stop the harassment, and if he did that, the condition was that I would return the cell phone to Gabriel.
That's what Gabriel wanted. He wanted his cell phone back and the website and harassment to stop.
Myhre:
Do you remember if Richard had any response to that?
Capuano:
He said no.
Myhre:
Okay. We've seen -- do you -- sorry, do you remember when that was?
Capuano:
That was the summer of 2015, shortly after he returned.
Myhre:
From his visit with Richard?
Capuano:
Correct.
Fox:
I'm sorry, did she say December?
Capuano:
Summer.
Fox:
Summer, thank you.
Myhre:
We've seen that you -- or at least from James there was a complaint to this web host?
Capuano:
Yes.
Myhre:
There were earlier complaints made to a site -- or to a host called "GoDaddy"?
Capuano:
Yes.
Myhre:
We've heard that you interacted with a Detective Tuchfarber with -- sorry, was that Phoenix or Tucson?
Capuano:
That was Phoenix.
Myhre:
You also tried to get help from the police in Canada.
Capuano:
I did.
Myhre:
So let's talk about that for a minute. Do you remember when you first contacted the RCMP?
Capuano:
I believe it was spring of 2015.
Myhre:
And what did you ask them to do for you?
Capuano:
I told them that the website was up and that I kept receiving emails in abusive nature from Richard. Also informed them that the emails indicated that he was crossing the border using this identity from Florida, and that the identity from Florida, to my understanding, was not valid, was not true, and asked if they could explain to me how he was able to get a PAL.
Myhre:
Okay. Did you get a response from the RCMP?
Capuano:
At the time, yeah, I got something of a response.
Myhre:
Were there any results in terms of the website?
Capuano:
No.
Myhre:
I understand that then, in the summer of 2015, you contacted the RCMP again?
Capuano:
Yes.
Myhre:
And this time you interacted with Constable Dupont [phonetic]?
Capuano:
Yes.
Myhre:
And you told him the nature of your complaint.
Capuano:
Correct. At that time, the new information about my home address was up on the website.
Myhre:
And what was your understanding of what Constable Dupont did?
Capuano:
He requested copies of the emails that had been sent, so I forwarded those over. He seemed taken aback with the website, so it was my understanding that he was doing an investigation and looking into the matter.
At some point, I was informed that Richard was arrested, but that he didn't stay in custody as far as I know, was released, and then I was given very scattered information, not properly informed about what was happening.
Myhre:
You eventually found out that Richard hadn't actually been charged with anything as a result of that?
Capuano:
Correct.
Myhre:
How did you find that out?
Capuano:
I didn't find that out until I spoke with the media quite a bit later. Richard did tell me in emails, but I did not hear from any other source until then.
Myhre:
And when you started contacting the media, roughly when was that?
Capuano:
It was spring of 2016.
Myhre:
Now, I understand that -- well, fair to say that the outcome of your complaint to Constable Dupont didn't result in the website coming down.
Capuano:
Correct.
Myhre:
You also looked for help from the courts in Arizona?
Capuano:
Yes.
Myhre:
In July of 2015, you obtained an order of protection in Sahuarita?
Capuano:
Yes.
Myhre:
That order of protection forbid any contact with you, forbid Richard from going near your residence and also forbid him from any harassment.
Capuano:
Correct.
Myhre:
Do you know whether it said anything about the website?
Capuano:
The website was considered harassment, but it was not a direct order to take it down.
Myhre:
What do you mean the website was considered harassment?
Capuano:
In the -- in the order of protection case, the website was brought up as evidence of harassment.
Myhre:
So what was your understanding of what was supposed to happen as a result of that order? Sorry, let me rephrase that. Why did you get that order? Why did you seek it?
Capuano:
In order to move through legal channels to have a website taken down from a provider, the first step is to get a restraining order or an order of protection. So that was only as a first order. That, in itself, cannot be used to take down the website, but it is the first necessary step. So I went through that process.
The other reason that I got it is because if Richard were to show up physically, and I had the restraining order in place, then the cops would show up faster with a restraining order than they would if I didn't have it. So it did help me were he to show up in person at any point.
Myhre:
Okay. I understand that Richard later challenged that order in the -- at the next level --
Capuano:
Municipal, yeah.
Myhre:
-- of court. At the Municipal Court. Was the order upheld?
Capuano:
Yes.
Myhre:
Okay. Did Richard participate in a hearing --
Capuano:
Yes.
Myhre:
-- for -- of the appeal of the order?
Capuano:
Yes, over the phone.
Myhre:
Okay. Did he --
Capuano:
Sorry?
Fox:
Can you clarify, are you referring to the order of protection hearing that were made in Municipal Court or the appeal in the Pima County Superior Court?
Myhre:
So as I understand it -- thank you, we'll clarify.
Ms. Capuano, you obtained an order for protection --
Capuano:
From the Municipal Court.
Myhre:
Okay. And then there was an appeal of that?
Capuano:
At the municipal level.
Myhre:
Okay. So did Richard participate in the appeal at the municipal level?
Capuano:
Yes, he did.
Myhre:
Okay. Did he give any indication, one way or another, as to whether he intended to abide by the order?
Capuano:
Absolutely. He said he would not.
Myhre:
Did he give a reason?
Capuano:
He said he was not within the jurisdiction.
Myhre:
I understand that Richard -- pardon me, back up. The appeal at the Municipal Court level, when did that take place?
Capuano:
I believe that was December of 2015.
Myhre:
I appreciate I'm asking you this without --
Capuano:
That's okay.
Myhre:
-- having any documentation, but just roughly. I understand that Richard further challenged that order to the Superior Court level?
Capuano:
Yes.
Myhre:
And that actually there was a hearing scheduled for June the 7th, 2016.
Capuano:
Yes.
Myhre:
That was to be held where?
Capuano:
In Tucson, Arizona.
Myhre:
Okay. I'm going to back up a little bit. You went to the media?
Capuano:
I did.
Myhre:
In the spring of 2016.
Capuano:
Yes.
Myhre:
How did that come about and why?
Capuano:
I hadn't heard anything back about the initial case with the RCMP. I couldn't get any footing, I couldn't get anybody to do anything about the website or the harassment, and I was still at a point where anytime anybody Googled my name, the website would come up and I was -- it appeared that I wrote the website. So it was still under the appearance that all of that was things that I had done. Nowhere in any of that information was Richard's name ever mentioned, and I wasn't going to allow him to continue to push that website, making it appear as though I had written it and -- so I went to the media, made a call to the CBC to see if anybody would be interested in helping me.
Myhre:
Okay, and you actually gave a televised interview to CBC?
Capuano:
I did.
Myhre:
You're aware they wrote an article?
Capuano:
Yes.
Myhre:
Did that have any effect as far as what you could tell in terms of when your name was Googled?
Capuano:
Yes. Yes.
Myhre:
What was the effect?
Capuano:
After that, any time my name was Googled and the website came up, there was also information that it was written by Patrick or Richard. He also modified the website after that to include disclaimers that the website was written by him that weren't there before.
So it did help to identify that I was not the one responsible for that website.
Myhre:
At some point, you set up a GoFundMe page?
Capuano:
I did.
Myhre:
Why did you do that?
Capuano:
I was asked to. A media source said that she was getting requests from people who wanted to find out how to help me and had requested that I set up a GoFundMe page for that, so I did.
Myhre:
Did you get financial help from that page?
Capuano:
Some. There's about $900 total. In order for those things to work, you have to continuously ask for help, and I wasn't going to do that.
Myhre:
In terms of custody of Gabriel, I understand that the last order that was made was made in March of 2016?
Capuano:
Yes.
Myhre:
And so what's -- what is the -- what was Gabriel's custody status as of that order in March 2016?
Capuano:
I was -- still retained sole custody. Up until that hearing, it was still under terms that I provide reasonable visitation and communication. After that hearing, it changed.
Myhre:
Did visitation change after -- with that final order?
Capuano:
Yes. The judge determined that that hearing that --
Myhre:
So I just want to be careful --
Capuano:
Sorry.
Myhre:
-- how I ask this. Do you have to provide visitation --
Capuano:
No.
Myhre:
-- as of that order?
Capuano:
Or communication.
Myhre:
I understand that in April or May of 2016, you got some calls from somebody you believe was Richard.
Capuano:
Oh, yes, sorry. Yes. April 2nd, I received a phone call to my home number. The incoming number was from Tucson, Arizona, and the message that was left was from Richard. It was to Gabriel and it only instructed him to call Richard on his mobile phone. Then April 8th, there was another call to my home, this time from a California number, from a corporation, again a message left from Richard instructing Gabriel to call him on his mobile phone. April 22nd, there was a third call to my home, again with a message from Richard for Gabriel to call him on his mobile. This one was also from California.
Myhre:
Did those calls cause you any concern?
Capuano:
Yes, absolutely.
Myhre:
Why?
Capuano:
I didn't know if they were spoof calls. I didn't know if he was actually in the country. I don't know if he was doing it to mess with my head. I don't know if he was doing it to scare me. But it certainly worked.
Myhre:
Okay. Ms. Capuano, I'm nearing the end of my questions, and obviously we've covered a lot of territory in the last four or five hours that you've been testifying.
Capuano:
Yes.
Myhre:
Could you summarize for the jury for the period between January 2015 and May 2016, did you have concerns for your physical safety?
Capuano:
Yes, I did.
Myhre:
Could you summarize what they -- what those concerns were?
Capuano:
The concerns were it was my belief that Richard was crossing into the country on a regular basis, that he had figured out a way to cross into the United States undetected with no issues. He had access to guns and owned firearms under an identity that, in my opinion, could probably be tossed if he needed to. It wasn't his actual birth certificate. It wasn't actually his identity is my understanding.
I'd already seen how quickly he could get to Los Angeles in just a matter of days, and he had contacts in Los Angeles that would help him, give him a place to stay, food, shelter, transportation. I live six hours away from those resources, and I know how much he despises me, and all of the times that he told me the world would be better without me in it, he wouldn't stop until I'm deceased, the website would be up until I was dead, and he was just -- there were -- there were many comments that scared me.
Myhre:
Did you have any concerns about a potential physical reprisal from people in the community due to the website?
Capuano:
I don't know how many people saw the website. He took out a Google ad in my neighbourhood so anybody that accessed -- Googled my name, an ad would come up and take them right to the website, and he targeted that for a 20-mile radius around my home address. I don't know how effective it was. I didn't necessarily feel fear that the people in my neighbourhood would hurt me.
Myhre:
Can you summarize, Ms. Capuano, the impact that the emails that we've looked at and this website had on your life in that time period, January 2015 through May 2016?
Capuano:
I felt isolated, I felt beat up, I felt powerless, frustrated and stopped at every turn. It felt like he had worked it out so that nothing he did he could get in trouble for, and so I felt like it was just going to continue, that this was never going to get any better, and that I would never be able to make him stop. I was losing jobs, I was losing friends, I was struggling every day. I was depressed, but I had to try to conceal that so that I could still raise my kids and make them smile and make sure their lunches were made, go to work, and take care of my dogs and live a normal life.
There was a strain on the relationship with James and I, not because of him and I, but because now his livelihood was being threatened. His mother was -- information put on the website, so she'd been brought into it. Everybody I know -- everybody I knew. I even asked James if it would just be better if I left so he wouldn't have to deal with this, so that they would be safe. He stood by my side.
Myhre:
Did you contemplate relinquishing custody of Gabriel?
Capuano:
I had thought about it, yes. But I knew that even if I had, he wouldn't stop. It wouldn't fix it, it wouldn't make it stop. I could give him everything he wanted and it wouldn't matter. He wouldn't stop.
Myhre:
And so by May 2016, did you have any more ideas to -- for things you could do to try to get this website taken down?
Capuano:
There were some more complicated in-depth legal processes that we were looking at, but honestly, by that point, I was starting to consider how to seal any public records, change my name without him knowing, figure out a way to move and somehow hide a new address and just try to disappear.
Myhre:
You haven't done that.
Capuano:
No.
Myhre:
Why not?
Capuano:
I don't want to run, and I don't want to hide. I just want it to stop.
Myhre:
My Lady, there's something I need to address with the court outside of the presence of the jury, please.
Judge:
All right. Members of the jury, if you wouldn't mind please going to the jury room.
(JURY OUT)
Judge:
Is this brief, Mr. Myhre, or should we call it the afternoon break?
Myhre:
I think it's brief, My Lady.
Judge:
All right. And should this be in the absence of Ms. Capuano?
Myhre:
I'm afraid so.
Judge:
All right. So we'll stand down very briefly and then resume.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
Discussion of Desiree having to identify Patrick in the courtroom
Myhre:
Thank you, My Lady. At this point, Mr. Fox still hasn't been identified in court, and so I wanted to address the procedure for that, if it's still necessary from Mr. Fox's point of view.
Fox:
I believe it is.
Judge:
Mr. Fox, I need to make sure that you understand what it seems you're agreeing to. One of the elements of both of the offences that are charged is that you, the person accused, were -- you were the person who did the various acts that are alleged. We've heard Ms. Capuano testify at length about Richard Riess, Patrick Fox, and we need to know whether or not you are agreeing that that person is you. If not, the Crown needs to find a way to prove that, if it can. And it's an element of the offence, so it does have to proven beyond a reasonable doubt.
Fox:
I apologize. I guess my response was ambiguous. What I meant by "I believe it is" is I believe it's necessary for her to identify me.
Judge:
I see. Then I'm glad I canvassed that. Perhaps I misunderstood -- well, I obviously did. All right.
Fox:
[Indiscernible/overlapping voices]. I should've been more clear.
Judge:
Either way. Mr. Myhre --
Myhre:
I think the procedure, My Lady, should be we should have the jury brought back in, then I'll bring Ms. Capuano in, I'll have her stand close to where Mr. Sheriff is and ask her if she recognizes anybody in the court as the person she's been referring to. Oh, recording. I'll have to put her back in the witness box. So maybe we can just take these down or move them aside.
Judge:
I think that would be better. Also, I would like to be able to see her as that's being done, and otherwise I wouldn't be able to.
Myhre:
So, My Lady, could I just have two minutes to communicate this to Ms. Capuano? She's not aware that she has to do this.
Judge:
All right. Now, when that's done, is that the end of your direction examination?
Myhre:
I believe it will, My Lady. What I would ask is that we not put her under cross-examination. I suppose there is the potential that I could review my notes tonight and think I need to ask her a couple more questions. I don't think so at this point but, in my submission, she shouldn't be under cross-examination overnight.
Judge:
All right. And at that point we will be at roughly three o'clock. Will we have got as far as we can get for the day, then?
Myhre:
I believe so, if we're not going to start cross-examination.
Judge:
I don't believe we are.
Lagemaat:
My position, My Lady, would be that I would like to spend the rest of the afternoon with Mr. Fox.
Judge:
All right. And then --
Lagemaat:
Depending on when the bus leaves.
Judge:
I'm asking all these questions now so that, when we've completed this process, I can tell the jury when we next need them. And what's the answer to that?
Lagemaat:
Unfortunately, My Lady, I had no reply from opposing counsel.
Judge:
All right.
Lagemaat:
And I expected that.
Judge:
So where are we? You were suggesting, Mr. Lagemaat, that we start tomorrow at one o'clock?
Lagemaat:
That -- that was in discussion with my friend and I this morning, we -- that I would offer to start earlier and perhaps have two breaks.
Judge:
What's the earliest you think you'd be ready tomorrow to start?
Lagemaat:
Well, I think the earliest I could safely say would be during the lunch hour.
Judge:
I see.
Lagemaat:
If I -- my matter's on a list. I will go to the JCM and ask that they put me first. But, if not, even if I finished at 11:30, I would be back here at 12:00, but I'd --
Judge:
All right.
Lagemaat:
Ideally, I'd like to finish it at 10:00 and -- or 9:30 and 10:00, but I can't say for sure, My Lady.
Judge:
And do you expect to complete within the week?
Lagemaat:
Fully expect to complete within the week.
Judge:
All right.
Lagemaat:
Thursday.
Judge:
All right. Then, I think what I'll do is ask the jury to come at one o'clock tomorrow, if that's feasible for them, assuming nobody's got something planned over the lunch hour that can't be changed. And we'll start then and go through, so that way we won't lose too much time tomorrow.
Lagemaat:
Thank you, My Lady.
Judge:
All right. So we'll stand down briefly, configure the court -- do we need to stand down for this? We probably do.
Myhre:
I think just to get these out of the way. And then, just so we're all clear, my understanding is that when we come back into court we'll have the jury brought in, then I'll bring Ms. Capuano in, put her back in the witness stand, ask her the question, and then we'll invite the jury to retire and let them leave. Or should we then ask Ms. Capuano -- then, why don't we let Ms. Capuano leave after that?
Judge:
Well --
Myhre:
And then you can discuss with the jury what time they should come back tomorrow.
Judge:
I -- the problem is, if we do it that way, we'll have to stand down yet again --
Myhre:
So --
Judge:
-- while Ms. Capuano leaves, then bring the jury back in again.
Myhre:
I think we won't have to do that, My Lady, just because the screens aren't here. That ship sails --
Judge:
Oh, I see. All right. Will you be closing your direct-examination or --
Myhre:
I would prefer not to, My Lady.
Judge:
All right. Very well. We'll stand down briefly.
Clerk:
Order in court. This court stands down.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
DESIREE CAPUANO,
recalled.
Judge:
Ready for the jury?
Myhre:
Yes.
(JURY IN)
Desiree identifies Patrick as the person she's been referring to (and puts on quite the show while doing so)
Sheriff:
The jury, My Lady.
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
Myhre:
Okay. Ms. Capuano, at this stage I need to ask you to look around the court and tell the jury members if you see the person here who you've been referring to as Richard Riess or Patrick Fox, and if you see him, please tell the jury what he's wearing.
Capuano:
The gentleman in red.
Myhre:
No more questions, My Lady.
Judge:
Are you closing your examination?
Myhre:
My Lady, those are all my questions for today.
Judge:
And you're asking to continue tomorrow?
Myhre:
Yes.
Judge:
Based on what you told me earlier, I take it you likely have very few questions left to ask, if any?
Myhre:
Yes, My Lady.
Judge:
All right. I'm going to have a quick discussion with the jury about timing, scheduling. Does Ms. Capuano wish to leave the courtroom at this point or to stay where she is --
Capuano:
I'm okay.
Judge:
-- during that discussion?
Myhre:
I think she's okay, My Lady.
Judge:
All right. Members of the jury, we've reached a point in the trial where, for two reasons, we need to take a little bit of a pause. I won't go into what those reasons are, but they're good and proper reasons. And counsel and Mr. Fox and I have discussed how best we can proceed in a way that makes the best use of your time, as well as court time, and moves things along the most efficiently, and what we would like to suggest is that you be excused for the rest of today and for tomorrow morning, and that you be asked to be ready to start again tomorrow at one o'clock. So you would be asked, essentially, to have an early lunch, be ready to start at one, and we'll go through till four, taking either one or two short breaks during that time.
Now, if there's anyone for whom that doesn't work, because it's quite a departure from the usual schedule, we'll obviously reconsider. Are you able to give me a quick nod now to indicate whether that will work or would you like to retire to the jury room, have a discussion, and then let me know? One of you could let me know on behalf of the rest of you.
You're like to ret -- you're indicating this will work for you?
Juror:
[Indiscernible/not near microphone].
Judge:
Is there anyone for whom it's a problem? All right. So let's go that way. I will thank you for your attention today. I am excusing you for the rest of today and for tomorrow morning, and asking that you be back here and ready to start again tomorrow, ready in time for one o'clock, please. Thank you.
(JURY OUT)
(WITNESS STOOD DOWN)
Judge:
All right. Is there anything else we should canvass today?
Myhre:
Not from the Crown, My Lady.
Lagemaat:
No, My Lady.
Fox:
No, My Lady.
Judge:
All right. Thank you. And we'll adjourn until tomorrow at 1:00.
Clerk:
Order in court. This court stands adjourned till tomorrow at 1:00 p.m.
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