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Stage set for Capote trial

Judge: Statements brothers made to detective will be allowed

David Capote

— A judge ruled Thursday that the statements Eduardo and David Capote made to a Steamboat Springs detective at Yampa Valley Regional Airport early this year will be allowed at the February 2010 trial of the brothers accused of playing a role in the Jan. 5 death of an Army sergeant.

Attorneys set the stage for the February trial during a hearing Thursday when the prosecution and defense argued motions to set the guidelines for the trial.

Eduardo Capote is charged with felony second-degree assault and two counts of misdemeanor third-degree assault for his role in the Jan. 2 altercation at Seventh Street and Lincoln Avenue in downtown Steamboat Springs that led to the death of Sgt. 1st Class Richard Lopez. David Capote is charged with two counts of misdemeanor third-degree assault for his 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 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 said 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.

The Capote brothers traveled from Miami for Thursday's hearing but sat silently for the three hours as attorneys argued before 14th Judicial Dis­­trict Judge Shelley Hill.

The hearing focused on three motions, including one that questioned whether statements the brothers reportedly made to Steamboat Springs Police Department Detective Nick Bosick at YVRA the morning after the fight would be allowed during the trial.

During Thursday's hearing at the Routt County Justice Center, Bosick testified that he called David Capote several times on the morning after the fight and drove to YVRA to meet the family before they flew back to Miami. At the airport, Bosick said he asked the brothers, in the presence of their father, what happened the night before. The brothers were not arrested or detained at that time, and they made their flight. Bosick said both interviews were very short and only covered the basics of what the brothers said had happened.

George Brauchler, one of the Capotes' attorneys, questioned Bosick about how he got the brothers into the room at YVRA and whether he told them they were free to go. Bosick said they never refused to speak to him and were not told they had to stay.

Hill ruled that there was no evidence the brothers would have felt they were in custody and that the statements will be admissible at trial.

Hill also chastised attorneys on both sides for not communicating enough, and she singled out prosecutors for not responding to the motions before the hearing.

Hill tentatively ruled in favor of the defense in a question about whether statements made by Eduardo Capote's wife would be allowed at trial. Fourteenth Judicial District Attorney Eliz­abeth Oldham argued that the marital privilege right was waived when the woman spoke to detectives in the presence of the brothers' lead attorney, Charles Feldmann.

Hill said the issue should have been addressed in a written response, but she gave both sides time to address the issue and said she might set another hearing to decide the matter before trial.