Judge denies Capote’s attempt to invoke marital privilege | SteamboatToday.com

Judge denies Capote’s attempt to invoke marital privilege

Eduardo Capote cannot prevent wife from testifying at trial

Zach Fridell

Eduardo Capote

— Eduardo Capote cannot prevent his wife from testifying during his assault trial scheduled to begin next week, a judge ruled Monday morning.

Capote and his brother, David, face assault charges in connection with a downtown Steamboat Springs altercation in January 2009 that led to the death of Army Sgt. 1st Class Richard Lopez. Jury selection in their case begins Feb. 1.

During a pretrial motions hearing Monday morning at the Routt County Justice Center, Judge Shelley Hill sided with prosecutors' argument that Eduardo Capote implicitly waived his marital privilege and never attempted to invoke it to prevent his wife, Desiree Capote, from talking to investigators.

Defense attorney Jeffery Weeden had argued that marital privilege — which can be invoked to prevent a spouse from having to testify against the other spouse — had not been waived even though Desiree Capote granted an extensive interview to police during their investigation of the January 2009 incident.

Fourteenth Judicial District Attorney Elizabeth Oldham countered by calling to the witness stand Steamboat Springs Police Department detective Dave Kleiber and Capt. Bob DelValle. Kleiber and DelValle recounted how attorney Charles Feldmann, who represents both Capote brothers, was present but silent during their interview with Desiree Capote in Miami last year.

DelValle and Kleiber also testified that they saw Eduardo Capote in the Miami police station at the time of the interviews.

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Oldham said she has subpoenaed Desiree Capote and Karen Rodriguez, David Capote's girlfriend, for the trial.

Eduardo Capote is charged with felony second-degree assault and two counts of misdemeanor third-degree assault for his alleged role in the Jan. 2, 2009, altercation at Seventh Street and Lincoln Avenue in downtown Steamboat Springs that led to Lopez's death. David Capote is charged with two counts of misdemeanor third-degree assault for his alleged role in the altercation. David Capote is not implicated in Lopez's death but is accused of fighting with Lopez's two friends.

An arrest warrant accuses Eduardo Capote of punching Lopez in the face, which caused him to fall and hit his head on the pavement during the altercation. Lopez died Jan. 5, 2009, at a Denver hospital of severe head and brain trauma.

The altercation stemmed from the two groups' earlier disagreement about song selection on a restaurant jukebox, according to police. After leaving the restaurant, the groups crossed paths at Seventh Street and Lincoln Avenue. Witnesses told police that the men yelled at one another before Eduardo Capote rushed at Lopez and hit him in the face, knocking him to the ground, according to an arrest warrant.

Huge jury pool summoned

Jury Commissioner Tracey Epley called 425 potential jurors from across Routt County for the trial that is scheduled to go two weeks.

Epley said that although it may seem like a large number of jurors to call, many people will be excluded or have wrong information in the court database.

"It's a lengthy trial, so we have to consider a lot of factors," she said.

A similar number of people were called for the jury trial of Luz Cisneros in 2008. Cisneros was found guilty of murdering her 1-year-old daughter.

"The main objective basically is to cast a broad enough net with the jury call so we end up with a fair and impartial jury," she said.

To handle the rush of people, Epley said the group might be split into two or more separate groups to spread the rush of people across the day. Epley advised jurors to continue to check the Web site, http://www.courts.state.co.us/Courts/County/Location.cfm/Location_ID/55, and to call 879-5020 beginning at 5 p.m. Friday to get the latest information.

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